As I mentioned earlier, the German Constitutional Court on Thursday gave legal sanction to the sequence of events by which the current Chancellor (prime minister) Gerhard Schroeder lost a vote of confidence in the Bundestag (lower house of parliament). The strange thing in all this is that Schroeder wanted to lose the Bundestag vote!

The decision raises significant questions about the suitability of Germany’s constitution—crafted in 1949 amidst fears that German democracy might break down again as it did in the 1930s—to today’s conditions. The constitution—or Basic Law—has provisions meant to make it hard to dissolve parliament. However, dissolution of parliament is a basic feature of most parliamentary democracies that allows the government to reflect major shifts in popular sentiment that may not coincide neatly with fixed-date elections (such as those in presidential systems like the USA or Mexico).

The effect of the Court’s ruling is to allow the election, scheduled for September 18, to go ahead. Had the court ruled otherwise, the campaign that is already in full swing would have been aborted, and the government would have been obliged to remain in office for the remainder of its term, or find a way to lose confidence that the court would accept.

The Court’s vice president, Winfried Hassemer, described the decision as “the choice between the plague and cholera”:

The plague is the initiation of a state crisis with the court trying to stop the election campaign that is already sweeping the country. And cholera is the attempt to avoid a state crisis by bending the constitution. In this view, the court could only make mistakes.

So, the court chose ‘cholera.’ But why was it necessary to bend the constitution in order to allow an early election that almost everyone—the Chancellor, the opposition, and apparently most German citizens—want, and are already preparing for?

The answer has roots deep in German constitutional history. The German Weimar Republic of the interwar years allowed a directly elected president essentially unrestricted power to dissolve parliament and order early elections. With some justification (though perhaps exaggerated), the frequent elections of that period were one of the features of that political system that were seen as facilitating the collapse of the Weimar Republic and the rise of Adolf Hitler’s Third Reich.

After WW II, the writers of the current Bonn constitution of the Federal Republic set about to make it difficult to hold early elections, principally by two provisions:

(1) They greatly weakened the presidency, by abolishing direct elections for the office and eliminating presidential initiative in the dissolution of parliament. Today the German president is selected by a Federal Convention consisting of elected members of the Bundestag and delegates from state legislatures. The President has no initiative, and like a European monarch, performs mostly ceremonial functions.

(2) They instituted a ‘constructive’ vote of no confidence, whereby the Bundestag may dismiss a Chancellor and cabinet only by simultaneously electing, by majority vote, a new Chancellor (Article 67 of the Basic Law).

The latter provision is key here. The underlying reason for frequent elections in the Weimar Republic had been that the governing coalitions of the center were highly unstable, because the Communists and Nazis would vote to oust the government in no confidence votes, but had no ‘constructive’ alternative for a new government. The thinking was that if a majority had to vote in a new government in order to toss out an old one, a government could survive even if it lost its supprtive majority—that is, negative majorities could not oust the government, only positive ones.

Similar constructive votes have been adopted in Spain, Hungary, and Poland more recently. These stand in contrast to the more typical ‘no confidence’ votes found in other parliamentary democracies, whereby the government must retain the confidence of the majority or else resign. In Germany, Poland, Hungary, and Spain, it is possible theoretically for a government to remain in office even when it has lost that confidence, until such time as an alternative coalition has formed to replace it.

What does all this have to do with Gerhard Schroeder? He sought to engineer his government’s own demise. He was facing opposition within his own party, the Social Democrats, and the party’s coalition partner, the Greens, to a series of economic and social-policy reforms. The government’s popularity is low, and it was stunned by the Social Democratic Party’s loss of a state election in May in North Rhine-Westphalia, a state in which the Social Democrats had ruled for 33 years.

Early elections are hardly unusual in parliamentary systems. Sometimes the prime minister can call them himself of herself (usually with the formality of a monarch or ceremonial president actually issuing the proclamation dissolving parliament and calling the elections). But not in Germany.

Schroeder invoked Article 68 of the Basic Law, by which the Chancellor can ask for an ordinary confidence vote—one in which he can be voted out even if parliament has no alternative majority to elect. Once a government loses such a vote, the Chancellor can ask the President to dissolve parliament.

But the purpose of Article 68 is to reinforce the authority of the executive by forcing a reluctant parliamentary majority to choose either to (a) keep the current government, even if they do not like it; or (b) face early elections. It was never intended to allow a prime minister to choose the date of an election (as British prime ministers effectively can do without any real controversy: Britain’s election last May was held early because the Labor party was confident it could win and did not want to wait).

Germany’s Constitutional Court ruled on this question once before, in 1983, after the Free Democrats had flipped their support in parliament from the Social Democrats to the Christian Democrats, thereby using Article 67. The new Chancellor, Helmut Kohl wanted to prove that his ascension to power on the backs of a party (the Free Dems) who had won only about 10% of the vote in the previous election really did reflect the popular will.

Kohl faked a no-confidence vote in 1983, much as Schroeder would do 22 years later. (Kohl and his Christian Democrat–Free Democrat coalition were returned to office by the voters in 1983 and three straight elections thereafter.)

So, what we have here is a case of the provisions of the German Basic Law that were meant to shield democracy from the extremist machinations of the 1920s and 1930s standing in the way of contemporary Chancellors who want to respond to the democratic will by holding a new election. (In this case it really does not matter whether the underlying motive is to confirm a parliamentary change of government for a new full term, as in 1982-83, or to cope with intra-party dissent , as now). The spectre of a government staging its own defeat by asking its own parliamentarians to abstain is not exactly healthy for democracy. Nor is having to call in the highest court to determine if a government really has lost confidence, and then have the court perform some legal gymnastics in order to say, sure it is.

It would be much cleaner if there were a mechanism for early elections that did not involve first going through such hoops.

Nonetheless, in my view, fears like those expressed in the business daily Handelsblatt should not be dismissed lightly. A commentaor (unnamed in Der Spiegel’s English summary) said the court:

must prevent a vote of confidence becoming a plebiscitary right of the chancellor,

that is, a way to appeal to the people over the heads of the parliament to which he is constitutionally accountable under the parliamentary form of government.

There is a way to avoid this problem, and it is being debated in Germany now: Allow the Bundestag to dissolve itself with a two-thirds majority. In that way, a Chancellor and his or her own majority could not simply hold elections at their own convenience, but when there is broad consensus on the desirability of early elections (as there was in 1983 and is now), there is a means to go back to the people and elect a new parliament.

Seems sensible.