The passive parliament

Addressing MdBs in the Bundestag on Wednesday, CDU faction leader Ralph Brinkhaus gave an impassioned defence of the proposed new disease control law, which controversially enforces night-time curfews on Covid hotpots.

“I have a heartfelt appeal to make,” he said at the end of his speech. “We in the Bundestag have the power to decide how many people get sick and then possibly die. Please vote for this law and vote for life.”

One could almost believe that Mr Brinkhaus was seriously concerned that the vote hung in the balance and that his carefully worded appeal was needed to win over that last few fence sitters.

Which is strange… because he knew all along that the votes were in the bag. And he didn’t just know that at Wednesday’s debate, he knows that every time a draft law is put to vote in the heart of German democracy.

In Germany, governments never lose votes in parliament. 

In her sixteen years as Chancellor, Angela Merkel hasn’t been defeated in a single parliamentary vote. Her predecessor, Gerhard Schroeder, was also undefeated despite joining the invasion of Afghanistan and overhauling unemployment benefits. It simply never happens that enough MdBs from the governing parties side with the opposition to bring down a bill.

The German constitution makes clear that such Gehorsamkeit should not exist. “Members of the Bundestag,” it states in paragraph 38, “are not bound by orders and instructions and are subject only to their conscience”.

The reality is rather different.

The current coalition agreement between the CDU/CSU and the SPD commits both factions to voting along party lines. Meanwhile, when SPD politicians enter parliament they have to agree to vote for any bill that has received majority support in the faction.

Loyal parliamentarians are rewarded with seats on committees. Those who rebel have committee posts taken away from them, thus impeding their career chances.

There is another aspect of the German system that gives the government a strong hand. Germany’s proportional representation system means that 6 in ten members of the Bundestag are not directly elected. Instead they arrive in parliament thanks to party lists. The higher up the list you are, the more chance you have of getting a seat in parliament.

While the list system mainly benefits the smaller parties, it can still be a powerful weapon in the hands of the government. That’s because even those who have direct mandates like to have their names on the list as a form of insurance. If they lose their constituency seat, the list is their backup.

The SPD and CDU Bundestag factions insist that they don’t have the power to knock unruly candidates down the lists, which are drawn up at the regional level. But the reality suggests otherwise, as a recent example shows.

One the few government MdBs to rebel on Wednesday was Florian Post, a directly elected representative for Munich North and a member of the Social Democrats. Mr Post made clear that he saw night-time curfews as unconstitutional.

“For me, it's about quality of life, especially in Munich,” he argued. “Why shouldn't you be able to drink a beer, a glass of wine or a cup of coffee outside, if the risk of infection there is, as many scientists say, practically zero?”

A serial rebel, Mr Post has already been stripped of his post on the economy committee for protesting arms exports to Saudi Arabia.

Now, his repeated rebellions have cost him his place on the party list for September’s election. He was expecting to be the so-called Spitzenkandidat for Munich, just in case he lost his constituency seat. But the local party refused.

Instead of being cowed, Mr Post confirmed on Thursday that he was taking the government to the constitutional court over the curfew law.

Reflecting on his decision to stop obeying the party whip he told the Süddeutsche Zeitung that: “It's somewhat liberating when all you have to do is follow your own conscience.”

Old hands in the Bundestag recognize that its primary role as a place to rubber stamp government policy is a problem. Standing down after 12 years as Bundestag President in 2017, Norbert Lammert admonished MdBs for their lack of fight.

“We have undoubtedly had outstanding debates in this house,” he said. “But if we are being honest, we should concede that there is still too much talk and too little debate here.”

Decisions should be taken “here inside the Bundestag, not in the building’s secret offices,” he continued.

Indeed, if debating means discussing an issue before reaching a conclusion, what happens in the Bundestag isn’t really worthy of the name.

J.L.

Who we are:

Jörg Luyken: Journalist based in Berlin since 2014. His work has been published by German and English outlets including der Spiegel, die Welt, the Daily Telegraph. Formerly in the Middle East. Classicist; Masters in International Politics & Arabic from St Andrews.

Axel Bard Bringéus: Started his career as a journalist for the leading Swedish daily Svenska Dagbladet and has spent the last decade in senior roles at Spotify and as a venture capital investor. In Berlin since 2011.