Constitutional conundrums, Covid costs
Dear Reader,
Friday is the last day of debating in the Bundestag before the summer break. And it will provide an interesting example of whether the new government under Friedrich Merz will be any more stable than the gaggle that Olaf Scholz tried to keep in order.
On the one hand - thanks to Merz's debt tricks passed before the new Bundestag formed - the next four years should be like an open bar: every coalition MP will get to pick a tasty cocktail to bring back to their constituents. On the other, the polarisation spreading through the West is making centrist lawmakers increasingly twitchy. In other words: it is 2am at this open bar - punches may be thrown from the most unexpected of angles.
On Friday, the Bundestag is voting on the nomination of three new judges to the Constitutional Court. Much like the Supreme Court in the US, Germany’s Bundesverfassungsgericht is the highest authority in the land. Its judges can strike down laws passed by the federal government if they deem them to be in contravention of the constitution.
Thanks to a law passed at the beginning of this year, a nominee to the court needs the backing of two-thirds of the Bundestag to be confirmed. The idea of the law was to stop the AfD from being able to nominate judges. It struck me as strange at the time, because it meant that the AfD only needed a third of the seats in the house to hold a blocking minority.
The hard-right party didn’t quite achieve that feat in February’s election. But something similar has happened. The parties of the so-called “democratic middle” (their own self-congratulatory self-description) no longer hold two-thirds of the Bundestag seats. Die Linke on the left and the AfD on the right account for just over a third of the 630 seats.
This means that the three judicial nominees (theoretically) need at least a few votes from either of the two fringe parties. Two of the judges have been nominated by the SPD: they are fine with most forms of cooperation with Die Linke. But it poses a problem to the CDU, who have passed a resolution that forbids them from working with either party.
While the CDU are more closely ideologically aligned to the AfD than to Die Linke, working with Die Linke would cause less outrage among the media class. Thus, it is highly probable that some form of talks are happening behind the scenes to ensure that Die Linke at least implicitly support the CDU’s judicial pick, a man called Günter Spinner (as an aside ‘Spinner’ means ‘nutter’ in German).
Die Linke will, of course, demand their price. After the CDU refused to support their leader, Heide Reichinnek’s attempt to gain a seat on the Bundestag intelligence committee last month, they swore revenge. They could turn out in force to block Spinner’s nomination, a move that would send a strong signal to the CDU not to mess with them. On the other hand, such a strategy gives the AfD all the cards: they can then decide whether to support the candidate or not. Instead, Die Linke are said to have been offered the chance to nominate their own judge in 2029 - the first time ever that they will have picked a candidate for the top court.
Possibly, instead of voting for the CDU man, Die Linke will simply agree that enough of their MdBs pull a sickie that day, meaning that the centrist parties will effectively have two-thirds of the overall vote.
Also up for nomination are two judicial picks from the SPD. The one to watch here is a woman called Frauke Brosius-Gersdorf, who is a professor at Potsdam University. Due to her “progressive” views on issues such as abortion and Covid vaccines, her nomination has caused consternation among conservatives, some of whom have called her “unelectable.” Among other things, Brosius-Gersdorf has argued that humans first attain their rights at the point of birth - a belief that would allow for much laxer abortion laws.
The vote is anonymous: if a few dozen CDU MdBs are in a rebellious mood, Ms. Brosius-Gersdorf might suffer the indignity of failing to win sufficient votes.
Abortion isn’t the only thing on Brosius-Gersdorf’s record raising neck hairs on the right. She has also said that she would support an application to the Constitutional Court to ban the AfD. While she couched this statement in the disclaimer that her support depended on there being “enough evidence,” some right-wing commentators suspect that her nomination is part of a plot to tip the ideological balance in the court before the government officially applies to prohibit the hard-right party.
Previously, the election of Constitutional Judges was barely worth a mention in the German press. Some now fear a descent into the partisanship of Capitol Hill. More scrutiny of judicial picks isn’t necessarily bad, though. The current presiding judge on the court, Stephan Harbarth, was a CDU MdB before joining the court. His rulings were known to be friendly to Angela Merkel.
As a Brit, the idea of a constitutional court is somewhat alien to me. While I appreciate the desire to put guardrails in place to stop the executive trampling over civil liberties, Germany’s ridiculously pedantic constitution gives the veneer of objectivity to political dogma. But that’s a subject for another day.
Last week’s poll: Should the rainbow flag be flow above the Bundestag during Pride Month?
Yes - 46%
No - 42%
Don’t care - 12%
Another example of the creeping paralysis in the Bundestag is the futile attempt by the opposition to open a parliamentary inquiry into CDU faction leader Jens Spahn.
Spahn is what you could describe as a “big beast” of the CDU. Despite still being in his 40s, he has been in the Bundestag for two decades and has slowly worked his way up to the second most important position in the party behind the chairman.
Through the Scholz years, Spahn spent much of his time trying to set traps for the government by demanding public investigations into things like the decision to turn off the remaining nuclear reactors during the energy crisis. Known for his elastic relationship with the truth on issues such as unemployment benefits, he isn’t a popular man on the left.
Now, Spahn’s enemies have the perfect chance to hold his feet to the fire. An internal government report has identified huge prices that Spahn paid for medical masks during his time as Health Minister in the last Merkel government. At the start of the Covid pandemic, Spahn personally intervened to pay more for masks than the number that was being recommended by his ministry. He also gave a lucrative contract to a logistics firm from his home region to deliver the masks, something that the firm was too small to deliver upon.
Spahn claims (not completely unreasonably) that public health doesn’t have a price tag. Early in the pandemic, there was a global rush for masks – and he did what he needed to do. Besides, the same people criticising his spendthrift mask purchases now attacked him for being too slow to secure vaccines in 2021.
Whatever the rights and wrongs, there is a legitimate suspicion of a cover-up. The Health Ministry, now back under CDU control, tried – and failed – to keep the report into Spahn’s mask dealings out of the public eye. Two opposition parties – the Greens and Die Linke – want to open a parliamentary inquiry into the issue so that they can question witnesses.
Green lawmaker Paula Piechotta said this week that a parliamentary probe was becoming “more and more likely by the day.”
To which one can only say: no, it’s not.
The establishment of such an inquiry needs the support of a third of the Bundestag. And the Greens and Die Linke simply don’t have the numbers. To do so, they would need to work with the AfD. But (as they never tire of reminding us) any form of cooperation with the AfD will act like a magic incantation and transport Germany back to the year 1933.
The CDU must be smiling wryly to themselves. At last, they’ve found an instance in which the Brandmauer works in their favour!
Best wishes,
Jörg Luyken
Hallo!
Ja, “Die spinnen, die Römer …” as Obelix would have said :)
‘spinnen’ is indeed a nice word for many uses. It really means to spin wool to yarn. Many a folk made their meager living as a “Spinner”, i.e. spinning wool to yarn. Old spinning wheels still grace antique shops.
‘Spinnerei’ is still an industrial site for producing yarn of all kinds to be woven into textiles.
The double meaning of someone engaging in “Spinnerei”, i.e. telling fibs, is aptly present in the ancient saying of ‘spinning sailor’s yarn’ “Seemannsgarn spinnen” - when sailors told hair-raising stories of their supposed adventures abroad.
Pie-in-the-sky stuff is downright “Spinnerei” and, well, “Du spinnst doch!” is of course ‘being nuts’.
And to be honest, when I look from Scotland, where a lot of “Spinnerei” is going on, I also get the feeling that quite a few “Spiner” are there in charge as well!
(Es ist nichts so fein gesponnen, es kommt doch ans Licht der Sonnen - noch ein weiser Spruch …)
Unlike Britain Canada has a Britain constitution but it also has what we call the opt out clause or not withstanding clause. That is a government can opt out of a court ruling for up to five years if it doesn’t agree with it. I like it because it returns the power back to the elected Parliament and away from judges.