Bundestag, Constitutional Law, Election Law, Federal Constitutional Court

What to Do About Germany’s Ever-Expanding Parliament?

The lower house of Germany’s federal parliament, the Bundestag, now has 709 members, making it the second-largest parliament in the world. This is over 100 more members than the 598 seats Germany’s voting laws formally provide for.

Why is the Bundestag growing? To understand this, you have to understand German federal election law. Here’s a video which explains everything clearly:

To sum up: in Germany, you vote for both a person (first vote) and a party (second vote). Each vote is totally independent. You can vote for a Green Party candidate with your first vote, but the Christian Democratic party with your second. The results of the first vote for the person are first-past-the-post; whoever gets the most votes wins, and automatically wins a seat in the Bundestag. The results of the second vote determine how many overall seats a party should get in Parliament: A party which gets 33% of the votes should end up 33% of the seats.

The problem comes in reconciling the results of these two votes. What if a 110 members of Party X are elected with a direct first vote, but their proportion in parliament should only be 100 members based on the second party vote? The extra 10 seats are called “overhang seats” or “overhang mandates”. And they’re a problem, since now Party X has, roughly speaking, about 10% more power in parliament than it “should”, given its share of the second vote.

Another problem is the phenomenon of so-called “negative vote impact” (negatives Stimmgewicht). This is a notoriously complicated phenomenon in which the creation of “overhang seats” interacts with rules on how state-level parliamentary contingents are divided up in the national Bundestag. As the detailed explanation (g) on the German Wikipedia page shows, the interaction of these rules can create a situation in which a party which receives 5,000 fewer votes in the election can actually win one additional seat, and vice versa: A party who receives 5,000 more votes loses a seat. Thus, those votes had precisely the opposite of the intended effect. I could explain this in more detail in another post if you ask me to, but I’m hoping you don’t.

The Federal Constitutional Court has been asked to review these problems many times (g) with varying results (once, in 1996, giving rise to a very rare 4-4 split vote (g) of the Court). Finally, in 2008, the Court decided to resolve the issue once and for all. It decided (g)  that the distortions created by overhang seats, primarily the possibility of “negative vote impact”, violated the requirement of direct and equal voting under the German Basic Law.

To remedy the situation, the Bundestag passed a reform of the voting laws in 2011 which formally introduced “compensation seats” (Ausgleichsmandate). These are additional seats given to other parties to compensate for the overhang seats of one party. Thus, in our example, Party X got 10 “extra” overhang seats because it elected more direct candidates than its vote share entitled it to. To compensate for this over-representation, other parties are given a few extra seats in proportion to their own share of the second votes. So Party Y might get an extra 4 seats, Party Z an extra two, etc., until the representation of these parties in the Bundestag indeed officially matches their share of the second vote. This is why the Bundestag keeps expanding: German law’s combination of personal and party votes can lead to imbalances, and the scheme for remedying these imbalances is always to add seats, never to remove them.

If this all seems a bit confusing to you, you’re not alone. Every German federal election is accompanied by obligatory “understand the system” articles and videos (g) which try to explain to Germans how their federal election laws work. It’s fairly easy to explain the general principles, but impossible to predict how they will affect a given election. In 2013, after election law was reformed, the results gave rise to only 4 overhang seats. However, the splintering electoral landscape of Germany — in which the two centrist “mass parties” are losing votes to the fringes, creates favorable conditions for overhang and compensation seats. Thus, the 2017 election created 46 overhang seats (g) and the next election could well double that amount.

The system is needlessly complex and unpredictable. It should come as no surprise, then, that over 100 German law professors have signed an open letter (g) which begins (my translation):

The Bundestag currently has 709 Members, 111 more than the Federal Election Law normally provides for. After the next election, there might even be more than 800 Members. Owing to a change in the political-party landscape, and to current election law — the number of overhang seats plus and the corresponding compensation seats introduced in 2013 have increased to levels never seen before. Further, election law, as the most important form of democratic expression, now has a paradoxically anti-democratic effect: it has become so complicated that hardly any voters now understand what their two votes will ultimately accomplish.

The massive bloating of the Bundestag hinders its functioning and creates millions in needless excess expenses.

The professors observe that reform proposals to reduce the Bundestag to its normal size of 598 are “easily available” (liegen auf dem Tisch), but don’t endorse one. Any given reform proposal is going to benefit some players and burden others. So I, for one, don’t anticipate big changes before the next election. Given how hard it will be to gather votes for a reform, it seems like letting inertia govern, and the Bundestag slowly expand, will be the easiest option. Letting inertia govern is, in any event, a common political strategy in Germany…

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