The German Problem (Elections won't fix the constitution's defects)

The Weekly Standard ^ | September 26, 2005 | Michael S. Greve

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ON SEPTEMBER 18, THE Germans will go to the polls. The extraordinary elections are being held a year before the end of the Bundestag's regular four-year legislative term, thanks to an elaborate and, to many Germans, distasteful charade. That price would be well worth paying if it produced a government with the will and mandate for much-needed political and economic reforms. Germany "confronts monumental tasks," President Horst Köhler observed in a televised address on the need for fresh elections. "Millions of people are unemployed, many for years. Federal and state budgets are in an unprecedented, critical condition. The existing federal order is outdated. We have too few children, and we are growing ever older. And we must contend in a global, sharp competition." Few believe, however, that a new government--which will almost certainly be led by the Christian Democrats' Angela Merkel--will address those problems, and neither the CDU nor its competitors seriously propose to do so. The tortuous path to the elections and their near-certain futility arise from the same source: By constitutional design, the country cannot have a governing executive.

The architects of the German constitution sought to learn the "lessons of Weimar," where a fractious multi-party parliament, unwilling or unable to form a government, prompted increasingly frequent general elections, government by presidential emergency decree, and eventually, with President Paul von Hindenburg's help, the Nazis' power grab. The "lesson" was to protect the legislature's authority and stability--fatefully, to the exclusion of the quasi-plebiscitary mechanisms through which other parliamentary systems ensure effective government.

Unlike the British prime minister, the Bundeskanzler may not call for elections when that is in the government's, or for that matter the country's, best interest. Only if the chancellor requests and loses a parliamentary "vote of confidence" may he then ask the president--an otherwise ceremonial figure--to dissolve the Bundestag and to schedule new elections. (The president may, but need not grant, that request.) After Willy Brandt in 1972 and Helmut Kohl in 1982, Chancellor Gerhard Schröder initiated this procedure this past May, following his party's devastating loss in the North-Rhine Westphalia state elections. The outcome, Schröder said, showed that his government's program--a hodgepodge of managerial mini-reforms, grandiosely styled "Agenda 2010"--could not be sustained without a fresh popular mandate.

That made political sense. The Social Democrats are badly divided. Even as Schröder pushed his mildly pro-market reforms, SPD chief Franz Müntefering railed against capitalist "locusts," meaning foreign hedge funds. And while the Red-Green government could have muddled through until the scheduled 2006 elections, Germany would benefit from a government with a clear mandate. Still, Schröder's contention that he no longer possessed a working parliamentary majority was transparent nonsense. The North-Rhine Westphalia results had no effect on the Bundestag, where Schröder's government had never lost an important vote and continued to enact Agenda 2010 reforms. In July, Schröder "lost" his vote of confidence only because SPD delegates were instructed to support their chancellor by abstaining.

The need for such constitutionally induced contortions is exacerbated by a 1983 decision by the Constitutional Court, which held that the Bundestag may not simply dissolve itself. Its lack of confidence in the chancellor must be genuine rather than manufactured. How do we know? The chancellor, the court said, must make a credible showing that he lacks a viable majority. The president may order new elections only if he finds that the chancellor's assessment was "not obviously false." Finally, the court reviews the chancellor's and the president's exercise of their discretion. This precedent compelled Schröder to rationalize the trumped-up vote and President Köhler to pay lip service to Schröder's absurd averments.

When two delegates contested the process, the Constitutional Court let the elections go forward by pretending to review the farce and declaring it in good constitutional order. As a concurring justice rightly observed, it would have been more honest for the court to acknowledge that the chancellor may dissolve the Bundestag at his discretion, so long as the president accepts his wish. Judicial review cosmetics will only compel the chancellor, president, and court to paint another, thicker layer of lipstick on the next constitutional piglet. The court refused to come clean because the right to parliamentary self-dissolution, which Germany has now acquired de facto, is at odds with her constitutional parliamentarianism. The events of the past months, however, show that the legislature's cherished protections have become dysfunctional.

The path to the election illustrates the elementary point that parliamentary systems are governed not by the legislature (which cannot govern anything) but by parties. With no risk of being unseated by the Bundestag, Schröder did face a real risk of being dethroned by his party--as happened to two of his SPD predecessors, Willy Brandt and Helmut Schmidt. Knowing that elections would mean not a new mandate but the end of his tenure, Schröder took the dramatic step so as to leave on his own terms and, moreover, to save his divided party by pushing it into the opposition, where it can regroup and reintegrate restless left-wing voters by railing against a conservative government's "neoliberal" demolition of the social welfare state.

Rhetoric aside, German voters do not in fact have the option of a Thatcherite program or, for that matter, any coherent alternative to the existing social welfare system. Just as the constitution guards against executive-led dissolution, so it guards against the formation of a resolute government. Under Germany's system of (modified) proportional representation, parties can gain power and govern only by attracting a very broad spectrum of voters or in a coalition government--through Volksparteien and consensus. This once-heralded Modell Deutschland tends to take choice, ideology, and decision--in a word, politics--out of politics. It works for a country that needs no serious foreign policy (and in truth does not want one). And it works so long as the economy can support political competition that is constricted by the welfare state consensus.

Germany has sought to take care of foreign policy, more or less, by subordinating the residual need for it to a European supra-state. Her problem is the unchallengeable political consensus on a welfare state that has been known to be unsustainable for two-plus decades. As early as 1982, countless economists and even the left-wing Der Spiegel called for drastic cutbacks--to no effect. In the 1990s, a nominally conservative government lavished already-excessive benefits on the impoverished, unproductive East. As Modell Deutschland has lurched on, per-capita GDP, once among the highest in Europe, is now third-worst in the E.U. (ahead of only Portugal and Greece). Unemployment is approaching 12 percent, and is twice that rate in some Eastern regions. The nonworking share of the adult population (the unemployed and pensioners) now outnumbers the working share by 55-45 percent, and the ratio of voters who make any meaningful financial contribution to sustaining the system has dropped to 20 percent.

As the transfer economy expands, the political options contract. Schröder's Social Democrats campaign on Agenda 2010 and denounce the demand for yet more redistribution, articulated by a newly formed leftist party that will enter the Bundestag on September 18, as irresponsible populism. The Christian Democrats propose to reform the German welfare state by making it more like . . . the Scandinavian welfare state, which is financed mostly through general rather than payroll taxes. Prominently, the party proposes an increased value-added tax to finance unemployment benefits, a project which the SPD opposes. Transfer-dependent voters demand to be provided for, and no politician can afford to deny them. As more of them have become dependent, and as once manageable economic problems have become "monumental tasks," the political system implodes into a single, increasingly ludicrous choice: Weiter so. More of the same.

Germany's impressive postwar economic success and political stability have often been attributed to the sound design of her institutions. The reverse is true: The institutions worked because the economy, relatively unencumbered at the outset, threw off sufficient wealth to pay for an expanding welfare state. That arrangement has crumbled and is now threatening to collapse under its own dynamic. Berlin is not Weimar. But a system that prizes parliamentary stability above all else has begun to produce, paradoxically and willy-nilly, eerily similar economic conditions and political indecision.

To the Frankfurter Allgemeine Zeitung, President Köhler's election announcement smacked uncomfortably of the presidential "emergency declarations" of Weimar notoriety. But it was also a beacon of reality in a sea of political pretexts and pathologies. The German voters, for the time being, demand to be coddled rather than led. For that, one must be grateful. What one must ardently wish and responsible politicians should urgently strive for is a constitutional reform that will allow Germany to be governed.

 

 

Michael S. Greve is the John G. Searle Scholar at the American Enterprise Institute and director of AEI's Federalism Project.