The Basic Law and the Power of Dissolution
By Dr. Donald P. Kommers

On May 22, the red-green coalition government suffered a devastating defeat at the hands of the CDU in the parliamentary election of North Rhine-Westphalia (NRW), Germany's most populous state and a traditional stronghold of the SPD.  NRW's election is the latest in a series of defeats that has left the red-green coalition in charge of only four of Germany's sixteen Länder (states),  compared to the eleven states it controlled in 1998.  The scale of the defeat prompted Chancellor Gerhard Schröder to call for early elections, probably in September, a full year in advance of the regularly scheduled federal election.  In doing so, Schröder is taking a calculated risk dictated by the SPD's declining popularity but emboldened by the hope, slim though it be, of winning a new governing mandate.

Schröder's strategy, however, is not only a calculated political risk.  He is also betting on its constitutional approval, which is by no means assured.  Under Article 68 of the Basic Law, four things must happen before a federal election can take place ahead of schedule. First, the chancellor must formally move for a vote of confidence in the Bundestag; second, the Bundestag by a majority of its members must vote against him; third, the chancellor must petition the president to dissolve the Bundestag; fourth, the president must agree to do so and arrange for new elections to be held within 60 days. These procedures should be distinguished from the constructive vote of no confidence permitted by Article 67. Under this provision, the Bundestag itself may remove a chancellor but only by simultaneously electing his successor by a majority of its members.  If confidence is withheld and the Bundestag fails to elect a new leader, the chancellor remains in office at the head of a minority government.

Article 67 has accordingly helped to stabilize Germany's political system.  Since the Bundestag cannot dissolve itself, its members - that is, members of the governing parties - are ill-disposed to turn themselves out of a ruling coalition unless they are confident of rejoining the government under a new chancellor.  It is not surprising, therefore, that the Bundestag has invoked Article 67 only twice in the Federal Republic's history, first in 1972 when Willy Brandt barely held off the CDU's challenge to his leadership, and then again in 1982 when Helmut Kohl was chosen to replace Helmut Schmidt as chancellor following the FDP's decision to withdraw from its coalition with the SPD and shift its support to the CDU/CSU.

Schröder's invocation of Article 68, however, faces several potential constitutional hurdles. For example, if President Horst Köhler concludes that the chancellor has contrived to lose a vote of confidence when he actually commands the support of a parliamentary majority, he may refuse the chancellor's request to dissolve parliament.  But if he goes along with the request, an additional legal challenge is possible - and very likely. Individual members of the Bundestag could plausibly argue that a presidential order of dissolution in the face of majority support for the government violates their electoral mandate under Article 38, a mandate coextensive with the prescribed four-year term for which they were elected in 2002.

This scenario is not unprecedented. It happened in early 1983 when Chancellor Helmut Kohl invoked Article 68 shortly after a constructive vote of no confidence propelled him into office.  In doing so, he could count on the support of a federal president who was also a member of the CDU. Having lost the "confidence vote," as planned, the president did accept his proposal to dissolve the Bundestag.  Four of its members, however, petitioned the Federal Constitutional Court (FCC) to reverse the decision.  In a 6 to 3 opinion, over the reservations of several constitutional scholars, the Court backed the president, asserting that the decision to dissolve parliament was within his discretionary authority.  The Court concluded that the chancellor had a rational basis for believing that he was faced with a Lage der Instabilität (situation of instability) in the parliament and that the sincerity of this belief validated the president's decision to dissolve parliament and hold new elections.

In the course of its opinion, the FCC made clear that each of the decision-makers along the way - chancellor, Bundestag, and president - is duty-bound to consider the Basic Law's sharp limits on the power of dissolution.  Each is required, independently and conscientiously, to decide whether the political divisions in the Bundestag seriously impair the ruling coalition's capacity to govern.  Yet the FCC emphasized the political nature of each judgment, thus blurring the line between constitutional law and politics.  Although the FCC stands ready to render its own judgment on the merits of any proposal for dissolution, the justices in the majority held that the president in particular should allow the chancellor a certain political Spielraum (leeway) in determining whether he is faced with a Lage der Instabilität that would justify new elections.

Will Schröder's Article 68 initiative succeed in the light of this case? One answer is "yes," for the chancellor's reasoning seems as compelling as was Kohl's in 1983.    First, Schröder has a scant 13 vote majority in the Bundestag (out of 603 members); second, he is probably convinced that opposition on certain issues from the Greens - the SPD's coalition partner - and from the left-wing of his own party threatens his leadership; third, he may feel that he has  been weakened politically, in and out of parliament, by the devastating results of the NRW election; fourth, and relatedly, he is faced with a CDU/CSU dominated Bundesrat (upper house of the German parliament) that could thwart 60 percent of his legislative program; finally, opinion polls show that the SPD-led government is at one of its lowest ebbs in popular support. Taken together, these factors would seem to constitute a strong argument for resorting to Article 68.

But are these reasons constitutionally sufficient to proceed with new elections?  The legal objections, were they to be pressed before the FCC, are substantial.  For one thing, as former Constitutional Court Justice Dieter Grimm has suggested, Schröder is not amtsmüde (weary of his office).  He could of course resign but has told the world that he will not do so.  For another, he is not faced with a real parliamentary crisis.  In short, "eine Lage der Instabilität" does not exist, for he commands a majority in the Bundestag.  According to prevailing constitutional opinion, it is not the margin of a chancellor's parliamentary majority that is crucial but rather its stability, and it would be fanciful to think that in the present circumstances Schröder would lose his majority.  In addition, the public's low opinion of a duly elected government has no constitutional relevance. Equally irrelevant is the nature of the relationship between the Bundestag and the Bundesrat.  The relationship that counts is that between the Bundestag and the Federal Government.  Article 68 may be invoked only when this relationship reaches the point of presumed "instability."

Unless individual members of the Bundestag challenge the holding of new elections in the FCC, the legal issues generated by Schröder's move are likely to be settled politically.  It is hard to imagine the chancellor's initiative not succeeding in the Bundestag and even harder to imagine that the opposition parties - CDU/CSU and FDP - would oppose early elections they are expected to win. It is also hard to imagine in the present circumstances that the president would reject the chancellor's proposal for new elections.  But what if he did?  Could the chancellor or the Bundestag mount a constitutional case against the president's decision?  This issue has never been decided.  It seems rather clear that the FCC has the authority to decide such a case.  What remains unclear is whether, as a constitutional matter, the president's decision would be final, all of which makes the interplay between law and politics in Germany as fascinating a spectacle as Bush v. Gore was for Americans in 2002.

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Dr. Donald P. Kommers, Joseph and Elizabeth Robbie Professor of Political Science and Professor of Law at the Notre Dame Law School, is a frequent contributor to the AICGS Advisor.

This article appeared in the June 30, 2005 AICGS Advisor.