Can the Bundestag pass laws with 85% of its Members Absent? The Answer May Shock You.

A recent dispute involving the German federal parliament, the Bundestag, has highlighted a quirk of German parliamentary practice: The Bundestag sometimes passes laws when the vast majority of its 709¹ current members aren’t there.

This quirk became a political theme on June 28, 2019, when the Bundestag held a marathon session before its summer break. Early in the morning, as it was considering a law to implement EU data-protection guidelines, an AfD member of the Bundestag noticed that only about 100 Members (f) were actually present in the chamber. He pointed out that the rules ordinarily require the presence of at least 50% of the Bundestag — or 355 Members — to be a valid quorum required to pass laws. Instead, only 100-120 (about 15%) of the Members were actually present.

The AfD filed a motion requesting that the Bundestag conduct what is called a Hammelsprung (g) literally, a wether (i.e., castrated-ram)-jump.² This is the German equivalent of the division: Bundestag Members file out of the room and re-enter through doors indicating their vote on the proposed legislation. This term originated as a joke in the late 19th century to describe delegates leaping up the stairs like rams on a mountainside to exit the chamber. Presumably calling them castrated rams was also a political joke. The votes are then physically counted as the Members return to the chamber. If the division had been carried out, it would have revealed exactly how many Members were present. However, the AfD’s motion was overruled by the current Vice-President of the Bundestag, the veteran Green Party politician Claudia Roth.

The AfD’s complaint brought to light a rather startling fact: It was probably legal for the Bundestag to pass a federal law even when only 15% of the elected representatives were there to vote on it. At first, you might wonder why, since § 45 of the Parliamentary Rules (g) of the Bundestag says: “The Bundestag has a valid voting quorum when more than one-half of its Members are present in the chamber.” However, this clear mandate is followed immediately by a series of caveats: “If, before a vote, the existence of a quorum is called into doubt by a party group or a by five out of one-hundred of the Members present, and the quorum is not unanimously affirmed by the Chair Committee of the Session, or if the Chair of the Session agree with the parties represented that a quorum is doubtful, then the vote shall be conducted by means of a division under § 51, in order to verify that a quorum exists.” (emphasis added).

So, to sum up: The Bundestag rules presume that a quorum exists at any given time. A party, or an inter-party group of Members can question whether a quorum exists, but if all of the members of the Chair Committee of the Bundestag “unanimously affirm” that a quorum exists, matters can proceed no matter how many Members are actually present. The Chair Committee of this parliamentary session were the Vice-President (Claudia Roth, Green Party), and two Secretaries (Schriftführer), one from the Free Democratic Party and one from the center-right CDU. All of these politicians “unanimously affirmed” that a quorum was present. Therefore — even though everyone agrees that far fewer than 50% of the Members of the Bundestag were actually in the chamber to vote, the law was passed anyway. The unanimous decision of the chairpersons created a legal fiction which trumped reality. Or, to put it another way, who you gonna believe: the Chair Committee of the Bundestag, or your lyin’ eyes?

Was this a proper use of the Chair’s privilege to find a quorum? One commentator, writing on Verfassungsblog, has his doubts (g). The point of giving the Chair of the Bundestag the power to decide whether a quorum exists was to prevent parties from throwing a spanner in the works by constantly questioning whether a quorum was present and calling for time-consuming divisions. To prevent this, the Parliamentary Rules give the Chair of the session the right to basically declare that a quorum exists and shut down all further objections. This is fine if it’s clear that the Bundestag is close to a quorum, and objections are minor nit-picking. But using this maneuver to authorize laws when only 15% of the Members are Present seems like an abuse.

Nevertheless, the Federal Constitutional Court has held that laws passed based on a “presumed” quorum under § 45 are valid, even if an actual quorum may not have been present. The AfD has now appealed the decision, asking the Federal Constitutional Court for a preliminary ruling, but experts agree (g) that the Court is likely to avoid deciding on the merits — appeals from political parties based on events in the legislature (Organklage, or lawsuits filed by organs of government) are subject to restrictive rules. Nevertheless, the FCC has never yet decided whether a vote held with so few members can be valid.

The reactions to the AfD’s motion fell along predictable lines in German political discourse: the mainstream parties, all of which are hostile to the AfD, denounced it as a trick, a ruse, an attempt to “defame democratic institutions” (g) and allow the AfD to portray itself as the “victim” of a “cabal” by mainstream parties. Yet, as I argued reviewing a recent book about German asylum policy (English here, German here), these disputes about positioning and framing are of little value. Regardless of its motivations, the AfD had a valid point: it is disturbing that a legal fiction intended to prevent needless obstruction can be converted into a trick for passing laws when only 15% of the legislature is present. And if 15% is acceptable, why not 10%? or even 5%? At what point does the vote lose its democratic legitimacy? And even more importantly, at what point does it lose its political legitimacy? Ordinary citizens could be forgiven for wondering about the health of their democratic institutions when 85% of the parliament’s members have better things to do than debate the public’s business. The complaint about the AfD “defaming” institutions is thus exactly backward: the AfD is only pointing to the problem — the legislature is discrediting itself.

And what about the AfD’s complaint about a cabal of established parties? They have a point here as well. All mainstream German parties have adopted a stance of overt hostility to the AfD. This has included using machinations (g) to keep AfD Members of the Bundestag out of leadership posts in the Bundestag hierarchy. Here, members of three supposedly rival parties — the Greens, the center-right CDU, and the business-friendly liberal FDP party — all agreed to invoke the quorum rule and overrule the AfD’s objection. They didn’t do this for explicitly corrupt reasons — the outcome of Bundestag votes are almost never in doubt, and the quorum rule is invoked for convenience, not skulduggery. But authorizing an absurd application of a rule merely for purposes of convenience, so that only a tiny fraction of delegates pass binding laws, is not a good look for the legislature of one of the world’s largest democracies. The AfD is an unsympathetic party in many respects, but when they have a point, they have a point.

1. Wait, you may be asking yourself — the Bundestag has 709 members? And that’s only one of the two chambers of the German national legislature. The United States, a country with 4 times as many people which is 28 times Germany’ size, only has 535 members in both houses of Congress. The size and expense of the Bundestag, a product of Germany’s complex voting system, is indeed a topic of intense debate (g) in Germany.
2. Yes, that is my last name. Not only am I named after castrated livestock, the word ‘Hammel’ is also an old-fashioned term for a dumb or clumsy person (numbskull).