ANÁLISIS DE RESULTADOS

Although the Bundesverfassungsgericht’s power to ban political parties that threaten the free democratic basic order is its most high profile weapon, it is the statutory 5 percent threshold for electoral success (or Sperrklausel) 636 which is the most counter-majoritarian element of Germany’s democracy. Only political parties that gain 5 percent of the national vote or more will get seats in the Bundestag, while those voting for parties that fail to reach the 5 percent threshold see their vote wasted. Since the founding of the Federal Republic, the high democratic cost of the Sperrklausel has been seen in the FRG as a price worth paying to avoid the fate of the Weimar Republic.

It is reasonable, of course, to compare the effective nullification of the votes of German citizens who choose parties garnering less than 5 percent of the vote with the devaluation of the votes of urban residents in the U.S. due to malapportionment. Both involve the disenfranchisement of certain citizens, but while the devaluation of the votes of urban residents happened for arbitrary reasons to maintain the unconstitutional hold on power of rural representatives, the effective nullification of the votes of German citizens who vote for certain parties is justified, according to the BVerfG and statutes, in order to preserve the legislature’s ability to function.637

The Court’s decisions need to be seen against the backdrop of the stability versus renewal paradigm seen in earlier chapters, where the Court has often tried to balance the need of a German parliament capable of functioning against the oligarchical inclinations among established parties to prevent new entrants into the process. Although a statutory rather than constitutional provision, electoral thresholds (Sperrklauseln) have often been seen by the Court as necessary to prevent the type of fragmentation that proved so damaging during Weimar. The Court’s decisions to strike down these Sperrklauseln at the EP level were highly contentious since they did away with an important statutory power of the Bundestag to control the effectiveness of the European Parliament. While the 5 percent threshold remains in place for Bundestag

635 _{Schlink, p. 215.}

636 _{Sperrklauseln is the generic term for the electoral thresholds (or barring clauses). The specific term for} the 5 percent hurdle is the ‘fünf prozent Hürde’.

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elections, some question whether the EP decisions may signal a reappraisal of even this semi-sacred barring clause which has been in existence since the foundation of the FRG. Minimum thresholds for electoral success (Sperrklauseln) have been part of the architecture of the German constitutionalism since the Basic Law was established. The introduction of electoral thresholds in electoral laws in the 1950s can only be understood against the background of the development and ultimate collapse of the Weimar Republic.638 Wenner notes that the fact that “the collapse of the Weimar Republic was also due to the fragmentation of the party system […] is often seen as confirmation of the ‘Weimar experience’ and an argument―also accepted by the BVerfG―for the necessity of a restriction on electoral equality.”639

The inability of the Weimar parliament to function due to the fragmentation effect of smaller parties resulted in government’s increasing reliance on executive institutions and channels, which were often supplemented by unofficial networks parallel to the state apparatus. It was into these well-oiled executive mechanisms that Hitler gratefully stepped in 1933. Thus, Germany's founders in 1949 well understood from Weimar how dangerous power vacuums could be and as a consequence the constructive vote of no confidence was enshrined in the Basic Law to ensure that no federal chancellor could be removed without the election of a replacement. During Weimar, the Parliament’s inability to agree on replacement chancellors was made more acute by the plethora of small parties which prevented an agreement among more moderate parties taking shape. The lesson that democracy needed to be credible even at the risk of sacrificing a little democracy to the demands of a stable process was one the German founders took to heart.

The experience of Weimar and the 1930s demonstrated that aspirational rights provisions were meaningless if the constitutional order which guaranteed them was overthrown through democratic mechanisms. This was the paradox of the constituent moment which created the Basic Law where preserving democracy meant limiting democracy, and preserving the individual rights of the people meant limiting the power of the people. Since political disunity was seen as one of the major flaws that crippled the Weimar Republic, the question for the German framers became how to ensure an electoral system that would be both representative and promote political unity. The rule

638

Wenner, p. 5. 639 _{Ibid. p. 38.}

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that parties should achieve a minimum threshold of electoral success in order to enter the Bundestag has been a feature of the German electoral system since 1949 and by 1952 a 5 percent rule had been adopted at almost every level of the federal government.640 Many of the parliaments of the German states also prescribed electoral hurdles, so the principle of electing a parliament capable of functioning preceded the Basic Law.641

Nevertheless, at the Parliamentary Council which drafted the Basic Law, there was disagreement over the part played by smaller parties in the demise of Weimar. Some representatives of smaller parties were strongly against the proposal for a 5 percent electoral hurdle which they saw as an effort to permanently stabilise the position of the larger parties.642 Some representatives “clearly saw the danger that the dynamism of political life could be considerably restricted” by an electoral hurdle and that “a young, powerful movement that bursts forth among the people and tries to rectify the misgovernment of larger parties” would be brought to a halt by the constitution.643

Of course, the smaller parties had a point, which is why the debate over electoral hurdles has never gone away. However, in 1948 when this debate was taking place, the majority of delegates had seen quite enough of young powerful movements that burst forth from the people.

When judging the constitutionality of barring clauses―which “justify distinctions between votes”―the legislature’s ability to function stands out as a fundamental criterion in the context of the history of the Basic Law and the BVerfG’s jurisprudence.644 In Weimar, as stated, the fragmentation of the Reichstag due to the plethora of smaller parties brought the legislature to a standstill and democracy into disrepute, with inevitable and terrible consequences. The rise of right-wing populist politicians in liberal democracies who have capitalised on both political dysfunction and liberal values underline the importance of constitutionalism in striking a balance between preserving the viability and functionality of legislatures on the one hand and upholding the importance of principles of equal suffrage on the other.

640 _{Kommers and Miller, p. 254.} 641

Wenner, pp. 90-91. 642 _{Ibid. p. 91.}

643 _{Ibid. My translation from: “Deutlich wurde bereits damals die Gefahr gesehen, dass mit Hilfe einer} Sperrklausel die Dynamik des politischen Lebens erheblich eingeschränkt werden könnte, und einer

‘jungen kräftigen Bewegung, die unten im Volk aufbricht und sich bemüht, die Mißwirtschaft großer Parteien zu beseitigen’, von der Verfassung her ein Riegel vorgeschoben werden könne.”

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While members of the Court and German public figures have perhaps rightly chastised the established political parties for creating a sense of ossification within the system, the maintenance of the 5 percent threshold at the EU level does not seem to fit into this category. Rather it seems a reasonable measure to ensure that the only institution to be democratically elected by all EU citizens is able to function. 14 EU states currently have electoral thresholds for EP elections. The argument is sometimes made by those opposing the hurdle that many far right parties such as the Front National in France clear the threshold easily and so it chiefly serves to exclude smaller, esoteric and generally non extremist parties such as (in Germany) the Animal Protection Party (Tierschutzpartei) and the Pirate Party (Piraten), to name just a couple. The risk, however, is that too many such small parties can prevent the mainstream parties from forming a governing coalition and it is the extremist parties that capitalise on that situation.

Decisions which seek to strike the right balance between the requirements of the militant democracy and ensuring the election of a parliament which reflects the party choices made by the electorate are always likely to attract criticism from some quarter, particularly from supporters of parties losing out. The main route for political parties and citizens challenging rules such as the 5 percent threshold is the constitutional complaint mechanism, allowing them to file a petition with the BVerfG when they consider one of their constitutional rights has been interfered with. Apart from providing the means by which the electoral threshold for EP elections was ruled unconstitutional, the mechanism for constitutional complaints (or Verfassungsbeschwerden) has played a hugely important role in establishing a democratic constitutional culture in Germany. It will now be considered.