Speech delivered to the New Zealand Business Roundtable (Auckland), 9 September 2011
I have to admit that for a long time I hadn’t been aware that electoral law was part of Germany’s exports. Cars, heavy machinery and beer are among the things that we would usually associate with the label ‘Made in Germany’. On the other hand, exporting German laws has happened more frequently than is commonly known. Japan’s legal system, for example, is derived almost entirely from German law. It’s also true that the People’s Republic of China is the latest country to adopt Land Title Registration based on the German model. So in a way, perhaps I should have been less surprised that Germany also managed to ‘sell’ its electoral system to the world.
Having said that, I would have thought that German electoral law was difficult to advertise if only because it is quite complex. The Germans affectionately call their system “personalisiertes Verhältniswahlrecht” – that’s two words with 35 characters and if you don’t understand what that means, don’t worry: Most Germans don’t understand it either.
In fact, the precise workings of German electoral law have been the subject of several decision of the Federal Constitutional Court, and if you read their judgments carefully you get the impression that even Germany’s highest judges at times had their problems with the system. In their latest verdict more than two years ago they even declared parts of it unconstitutional and demanded that it be reformed by the end of June 2011. That deadline has now passed without the parties agreeing to a reform of the law. And this means that for the time being Germany does not have a constitutionally valid electoral law. If a snap election were called tomorrow, it would almost certainly be illegal.
Before I go into the basic structure of Germany’s electoral laws, I should perhaps just tell you a bit about Germany’s political system. It’s quite a tricky thing to do because it is so complicated. In the past I tried to explain it to my Australian and New Zealand colleagues, who were interested. Once I was through with the Bundestag (that is the lower house), the Bundesrat as the representation of state governments, the two chambers’ ever more important joint committee, the Federal President’s office, the Constitutional Court and of course our beloved “personalisiertes Verhältniswahlrecht”, they usually looked at me with a mixture of shock and disbelief. If I interpreted their facial expressions correctly, they must have thought “How on earth can you effectively govern such a country?”
But that of course was precisely the point of Germany’s political system after World War II. After the catastrophe of National Socialism and the Holocaust, the principal concern of the famous ‘fathers and mothers of the Constitution’ was to design a system which would forever make it impossible to have another dictatorial rule. So they used all sorts of mechanism to provide Germany with the most rigid checks and balances that you can imagine. The complex picture of German politics may have the minor drawback that the country has become completely unreformable, if there is such a word. But it has also ensured that a Hitler-like figure would find it extremely hard to rise to power, and even if in power such an undesirable character would not be able to do much harm thanks to all the limitations that the Constitution has put in place.
The system of German government has produced a whole state apparatus that has an inbuilt tendency to distrust itself. Foreigners may find this hard to believe, but Germany is perhaps the only country in the world in which a governing party has sued itself in the Constitutional Court to challenge the legality of its own actions. Germany is also a strange country in the sense that its second chamber of Parliament actually consists of government representatives, not of directly elected MPs. And it’s a curious country in which the head of government can only call a snap election if he successfully convinces his own party to temporarily lose confidence in him.
So Germany has quite a peculiar political system, and the electoral system the Germans use is therefore quite appropriate for this strange democracy. Like so many other things in contemporary Germany, it was a compromise.
When the Parliamentary Council, the before-mentioned ‘fathers and mothers of the Constitution’, came together between September 1948 and May 1949, they could not agree on the right electoral system for the new Federal Republic. Some members were adamant that a First-Past-the-Post system would be the best way for Germany. That was of course the model used under the Westminster system where each constituency would elect one Member of Parliament who only needed a relative majority of the votes. Other members of the Parliamentary Council thought that a proportional system, like the one that Germany has during the years of the Weimar Republic, would be better because it ensured a more accurate reflection of the electorate at large.
Neither side managed to win the debate, and so the Germans then developed a completely new system as a compromise. And the result was the ‘personalisiertes Verhältniswahlrecht’, that literally translates into ‘personalized proportional electoral law’. It’s what New Zealanders have come to know and to love under the acronym of MMP – or Mixed Member Proportional.
The detailed workings of MMP are difficult and complex, not least because of Germany’s federal structure. It would go too far to explain all the minutiae of its operation. However, the basic principle at least is relatively simple. Under German MMP, each citizen has two votes. With the first vote he votes for a constituency candidate, who is elected under a first-past-the-post system. The second vote, however, determines the overall composition of the Bundestag. The difference between the number of seats a party wins in the constituencies and the number of seats it deserves according to its share of the second votes is made up with MPs that are drawn from the parties’ lists.
So in theory German voters could actually pick a constituency candidate just based on their personal qualities while determining the composition of Parliament based on party preference. But there is a problem with this theory because voters don’t act accordingly. On the contrary, you can observe that voters overwhelmingly give their constituency vote to the candidate whose party they prefer. Thus in traditional conservative strongholds, the Conservative constituency candidates get elected and in social democrat strongholds Social Democrats get elected. That voters are actually given a far greater choice in determining their local representative does not seem to occur to them.
A local candidate’s party remains his or her most important selling point. Conversely, whether a candidate enters Parliament on a mandate based on a direct electoral success in his constituency or whether the candidate owes his mandate to a party list, does not seem to matter much. Actually, you can often observe that list MPs will also try to establish strong links to their home constituency although technically they do not represent it. For example, in a social democratic stronghold where Conservative candidates never stand a chance of being elected directly, the Conservative list MPs often behave as if they had some kind of local mandate.
Summing it up, the German system of MMP has some theoretical advantages. But unfortunately, these advantages have not been realized in the political process thanks to the ignorance of voters. This may be a harsh verdict on the average German’s intelligence or political knowledge, but it’s backed up by opinion polls. Almost half the German voters had no idea about the difference between the votes they cast with their ballot sheets. After 60 years of MMP, one would have hoped for a better familiarity with the system, but sadly ignorance about the basic working of the electoral system is still widespread.
Despite MMP, the Germans primarily think of elections in terms of parties. In comparison, the individual constituency candidate hardly matters. In any case, many of the constituency candidates are also simultaneously list candidates. In some constituencies it therefore does not matter which of the candidates is elected directly because sometimes two or even three of the candidates on the ballot paper have a safe seat in Parliament thanks to the places on their respective parties’ lists.
German constituency MPs thus also lack the degree of personal independence that we would often find in countries with a first-past-the-post system. The grip of political parties on the political process in Germany is much stronger than in countries like Britain, the US, or New Zealand.
Germany has therefore become a country that has an MMP system in theory, but basically it is a party-driven proportional system. Unfortunately, it’s also a country with an increasingly fractured political structure with five well-established parties: the Christian Democrats, the Social Democrats, the Liberals, the Greens and the Post-Communist Left. This fracturing has recently made it much more difficult to form stable governments. No wonder that more and more experts like Roman Herzog, the former Federal President and President of the Constitutional Court, wonder whether Germany would do better with a first-past-the-post system.
Of course, it will never come to this. After all, as I mentioned before, thanks to all its checks and balances, the German political system above all other things remains a system that is almost impossible to change.
But maybe New Zealand will have more luck at freeing itself from the German system of MMP?