Germany’s MMP Electoral System and Its Reform

Full Transcript:

INTRODUCTION: 

Hello everyone! My name ist Stephan Kyburz. And this is the 43rd episode of the Rules of the Game podcast.

Electoral reforms are some of the most contested and difficult democratic reforms to achieve. The reason is that changing the electoral rules alters the allocation of political power in our government institutions, and thus who gets a seat at the table.

Germany is currently in the process of adjusting its multi-member proportional electoral system (MMP). The aim of the reform is to cap the size of parliament to a fixed number of seats to prevent the parliament from growing excessively large, which has become a concern in recent elections.

With Armin Schäfer I discuss this electoral reform, comparing the old and the prospective new electoral system. Together we explore what the most important and the most controversial changes are. He shares not only historical context of the character of Germany’s political system but also his opinions on the reform process.

Important to mention is that just a few days ago, at the end of July, the Federal Constitutional Court of Germany ruled that electoral law passed by the German parliament in March 2023 is, in principle, in accordance with the Basic Law. However, the basic mandate clause, which was supposed to be abolished, must remain in place. The basic mandate clause states that any political party that wins at least three electoral districts is allowed to enter parliament. This is especially important for smaller parties with strong regional representation that fail to cross the 5% electoral threshold that is also in place.

I recorded my discussion with Armin Schäfer before the ruling of the Constitutional Court. This means that while the arguments we make are absolutely relevant and valid, we were not able to anticipate the timing or outcome of the court ruling.

Armin Schäfer is a Professor of Political Science at the University of Mainz in Germany, with his research interests at the intersection of comparative political economy, democracy research and political theory. His recent research agenda focused on the interplay of social and political inequality, voter turnout, representation and responsiveness. His most recent book published in 2023 is titled “The Democratic Regression. The Political Causes of Authoritarian Populism. Cambridge: Polity,” that he co-authored with Michael Zürn. Between 2018 and 2021 Armin Schäfer was head of the German Political Science Association (DVPW).

You can find all of his contributions on his website. You find links to all references in the show notes.

I am your host, Stephan Kyburz, and this is the forty-third episode of the Rules of the Game podcast. I am a political economist with a PhD in Economics from the University of Bern in Switzerland. And I previously held positions at the London School of Economics and Political Science and the Center for Global Development.

You find a full transcript of this episode on my website rulesofthegame.blog. Please send any feedback to rulesofthegame.ddi@gmail.com. If you like the podcast and want to do me a favor, please give it a 5-star rating. If you’d like to support my work, consider buying me a coffee at buymeacoffee.com and you find the link to it on my website rulesofthegame.blog.

DISCUSSION:

Stephan Kyburz: Armin Schäfer, welcome to the Rules of the Game podcast. I’m very happy to have you on the show.

Armin Schäfer: Hi, it’s great to be on the show. Thanks for having me.

Stephan Kyburz: So my first question as always is, what is your first memory of democracy?

Armin Schäfer: Maybe I can share two. One is more personal and one more political. So my first election I ever took part in was in school when I was a third grader and we had to select a spokesperson for the class. And when the election arrived, I was actually ill at home and I couldn’t participate and I didn’t run for office. But then it turned out I was voted into that very important office nonetheless. And in the afternoon, two friends came by and they actually brought me the ballots and said I was elected even though I hadn’t even run for this position. I didn’t even know I was a candidate and I didn’t participate in the election but still was elected and then became the spokesperson for one year. So that was my first personal experience at a very, very small scale level on a larger scale. My second example, I come from the region of Hessen, which is one of the Länder in Germany and in 1985, and that’s about the same time when I was still in third grade, the Green Party entered the local government or regional government for the first time. And Joschka Fischer, who later became foreign Minister, who was the first Green Party minister at a regional level. And it was quite controversial at the time and not everyone in my family liked him very much. So I remember discussions, I mean, I didn’t, I only listened to, but my parents and friends and so, they discussed that very much whether it’s appropriate that the Green Party, which was considered pretty radical at the time, should enter local regional government or not. So there were debates about that and I vaguely remember them.

Stephan Kyburz: Yeah, Joschka Fischer, of course, a very big figure. Also in my memory when I grew up. Also I followed German politics, more or less, of course, being from Switzerland. Germany is still very important in many regards. And Joschka Fischer obviously was a very important figure in politics. So I remember that as well.

Armin Schäfer: At the time, I didn’t know how special it was. I mean, if you look at it now, from an international comparative perspective, I mean, it was really early entering of the Green Party into government and they entered the German National Parliament in 1980. And that was the first time they really took office. And I mean, at the time, I was too small to really realize how special it was. But as I said, I remember the debates about it.

Stephan Kyburz: Yeah. And a lot has changed in terms of the party landscape. There have been a lot of new parties also on the political stage.

Armin Schäfer: Yes, I think we’ll come back to that.

Stephan Kyburz: Exactly. Exactly.

Stephan Kyburz: So for people in the audience who don’t know the German political system very well, could you just briefly give an outline, what are kind of the most important characteristics of the German political system.

Armin Schäfer: I mean, talking to a Swiss, that’s not not surprising or not special, but I think Germany is one of the countries that we would call a consensus democracy. Arendt Lijphart famously distinguished between consensus democracies and majoritarian democracies. And why is that? Because it’s a highly federal state. I mean, one of the most federal states in the world I believe. So I start with regional parliaments, they are very important. And then it has a proportional electoral system which means that more than two parties enter the national parliament. You usually, almost always, we have a coalition government. And so there’s a lot of need to actually coordinate and cooperate across party lines, across the aisle if you want. And that has been ongoing for a long time. And I think for a long time, these kinds of institutional features actually made it pretty much a consensus democracy also in terms of behavior. I mean, most parties were able to cooperate with each other and the climate wasn’t very hostile, I think. And this has changed somewhat in more recent times as the party system has become more plural. For a long time, Germany did not have a successful right wing party in parliament. I mean, sometimes at the regional or local level. But the “Alternative for Germany” was the first major national right wing party that entered the Bundestag in 2017. Before that, after World War II, I mean, there were no real successful right wing parties in Germany. So the political climate and the political culture used to be pretty consensus oriented, I think and it has somewhat changed over time.

Stephan Kyburz: Thanks a lot for this outline and maybe what we could add is also that there are two chambers, right? One is elected by the people, the Bundestag, the Federal Chamber. And then you have also the Bundesrat that is representing the state governments or the Länder governments, as you said.

Armin Schäfer: As I said, it’s a very federal country, which means we have 16 Länder and all of them have their own parliaments and governments. And in that second chamber, the Bundesrat, it’s actually the executives of the Länder that are represented there. So it’s not direct election of the citizens, but it’s representatives of the regional governments that enter the Bundesrat. And not always, but with a lot of laws, both chambers of parliament have to agree and that creates a lot of need to coordinate and cooperate. As I said earlier, because often you have, I mean, you need at least one opposition party to be willing to cooperate in the second chamber to be able to actually decide on laws. So oftentimes you have to find a bigger kind of majority or consensus than just in the first chamber because you also need agreement in the second chamber at the moment. For example, the Christian Democrats could stop many laws in the second chamber because they participate in so many regional governments and they could actually block them. It doesn’t happen very often because that’s part of the political culture in Germany that often you do agree after lengthy negotiations. In contrast to the United States, I mean, cooperation is still possible and they do come up with solutions after lengthy negotiations.

Stephan Kyburz: So as I understand, the second chamber, the representation of the executives of the Länder is also more conservative, more majoritarian in that sense or more moderate and they could stop a lot of legislation and also the electoral reform that we’re going to talk about in the electoral system of Germany, the mixed member proportional system, the consensus element also was there. Or it is important that as many parties as possible should agree to a kind of reform and maybe we can discuss that a bit later. But first, just to lay out the electoral system that we want to talk about, that we want to discuss today: What are kind of the core elements of the electoral system, the mixed member proportional system of the Bundestag as it has been used in the last elections. Let’s start with that.

Armin Schäfer: So it is a proportional system of representation. But the special thing is, and that’s why it’s a mixed member proportional system, is that you have two votes and it combines in a way first past the post system. So you have one vote in each electoral district and that is really a plurality election and you select individual members of parliament in your electoral district. But the overall composition of the parliament is determined by the second vote you cast, which is on a party list and the overall composition of parliament should be determined. But the second vote should be proportional to the votes. But you have that special element that you have 299 electoral districts at the moment. And each district sends one person to parliament and this person is to be elected by a plurality or relative majority is enough to be elected. It could be more of course. And I mean, so it combines basically features of two different types of electoral systems, one which is more majoritarian, one which is more proportional. But overall, and that has been determined. It aims to be a system of representation with that special kind of personalized vote on the electoral level.

Stephan Kyburz: So it’s really a combination of a personal element which is the direct vote for a candidate in an electoral district and the proportional element which is for a party list. And those are 299 plus as in the standard version plus 299 mandates.

Armin Schäfer: Exactly. And so there are 299 districts, each district sends one representative to parliament and then there are another 299 members of parliament and the overall 598 seats should be according to the proportion of the second vote of the party list vote. And for a long time, there was no problem. There was no real tension between these 1st and 2nd votes, but this has over time made a reform, I guess necessary. And I guess we’ll come back to that in a second.

Stephan Kyburz: So the Bundestag, the parliament has been growing. So more and more members have been elected to parliament and there are specific reasons for that. And now we kind of want to explain those reasons. And one thing is that of course, candidates can be elected in a district or on a list. And if for a party, more members of the districts are elected than they actually are allowed to have as a proportion of the vote share, those are additional seats they win. Or it’s like maybe I can give you the word to, to explain it in a more coherent way.

Armin Schäfer: Start with a very silly example which is not a real world example, but it helps you to or us to understand the problem. So imagine there were only party A and party B and party A would win all the first votes. So they would win all the electoral districts in that kind of majoritarian system. And party B in our example would win all the second votes. So that would mean that you had 299 representatives from the districts, but the overall composition of parliament should be 100% from the other party party B. And of course, that’s not possible. I mean that’s not possible. And then you would have to enlarge it until infinity, I guess to still make it roughly proportional. So that’s the basic problem if there is a difference between the first votes and those who are elected in the electoral district and the overall composition. And for example, in the last general election in 2021 the regional party Christian Social Union, which is I mean, the sister party of the Christian Democrats, but it’s their own party, they won 5% of the national vote roughly, but they won almost all the electoral districts in Bavaria where they run 45 out of 46 electoral districts they won. These are 7.5, I think, percent of the overall seats in parliament that they won just with the first vote, with the personalized vote. So there’s a discrepancy between the 5% of seats that they should have according to the second vote and the 7.5% of seats that they gained through the electoral districts and to still have a proportional representation. What happens then is that as parliament is enlarged other parties get more seats in parliament to still achieve proportional representation. And as that relatively small party had too many electoral district votes or seats, then parliament had to be increased quite a lot. I mean, from 598 to 736 seats, I believe just to still make it proportional. And so that’s the basic problem if parties win a lot more electoral districts, then they have second votes and then the proportional representation doesn’t work any longer. And you have to find a mechanism to deal with it. And the mechanism in the past used to be that you just enlarge parliament, you give compensatory seats to other parties to still achieve proportionality. And I mean, there are examples, I mean, people have been calculating what could happen in extreme cases. I mean, you could have up to 800 or 850 or even more seats in parliament if there had not been a reform. So my silly example tells us, I mean, you know, in really, really extreme cases, there could be no solution but even in realistic scenarios, there could be still an ever growing number of seats in parliament to make a compensatory because there’s such a discrepancy between these two ways into parliament.

Stephan Kyburz: And this growing number of members of parliament was also the reason for the reform and everybody kind of agreed that parliament became too big and we need to restrict the number of seats or of mandates that we give out. And as you explained really well, and I think that the example was also very insightful, so there are these overhang mandates when parties get more or win more districts than they should have according to the proportionality. And then the compensatory mandates for the other parties to keep the proportionality of the whole parliament. So essentially priority is given to the proportionality

Armin Schäfer: Exactly because the system is meant to be proportional. And if it’s distorted through the first votes, then you have to find a mechanism to still make it proportional. And the Christian Social Union, that I mentioned earlier, I mean, there are 12 seats too many and to still make it proportional, that meant that you had to give additional seats to all other parties and that was 100 additional seats to make sure it’s still overall proportional. So these two types of electoral mechanisms by now they clash, I mean, in the past they worked well, but now they clash.

Stephan Kyburz: So just to compare like the basic parliament supposed to have like 598 members and now we are at 733 about and so there are 136 of these overhang and compensatory mandates, right? And the reform kind of wanted to find a solution for those additional mandates that are enlarging parliament.

Armin Schäfer: I mean, it’s worth mentioning why it was not a problem in the past. So if you go back to the eighties, for example, the two largest parties won all the electoral districts, but they also had a large share of the second vote. And then there was not a discrepancy between these two types of votes, but the two largest parties. So the Christian Democrats on the one hand side and the Social Democrats on the other hand side, they are much smaller parties by now, which means they still win almost all of the electoral districts but only gain, let’s say 25% of the votes. And that means the discrepancy between the first vote and the second vote grows. And therefore, now there is a problem and there was less of a problem in the past. So the growing diversity of the party system and that we have now, more parties that enter parliament, which means that the largest parties are relatively weaker than they used to be. That has really exacerbated the problem which didn’t exist or it wasn’t much of a real world problem in the past, but it has become one now.

Stephan Kyburz: And then we can introduce two additional elements which are connected. One is the threshold, the voting share threshold, which is at 5%, which means that parties that gain less than 5% at the national level of the vote share are not included in parliament. But then there was an exception clause, which is the basic mandate clause. So when a party won at least three districts, electoral districts, it would still be included in parliament.

Armin Schäfer: Yes, I mean, it’s a complicated system, I guess. But so it’s 5% of the second vote, of the party list vote, that determines whether you enter parliament or not. But then, as I said, if you win, you used to win an electoral district, you have a right to enter parliament. And then they said if you win at least three of those, then the 5% threshold doesn’t count anymore for this particular party and it can still enter parliament. As I said before, in the past, there was not much of a problem because there were two large parties and then in the seventies, one small one, the Liberals, then another small one, the Greens in the eighties. But since then, it has really changed. And I mean, now it has happened several times that parties don’t reach 5% of the threshold but might have 3% of these electoral districts and then they still enter parliament. And the Left Party, I mean, it’s true for the Left Party in the last national election. But it’s also interesting for the Christian Social Union, I have to come back to this party, which perhaps many people don’t even know because, I mean, as I said earlier, they stand by around 5.2% of the national vote, but they gain a lot of electoral districts. So even if they had less than 5% of the national vote, they would still enter parliament under the former electoral rules because as far as we can tell, they will win more than three electoral districts. So this was another exemption to the electoral laws. And it is important especially for these smaller parties and the Left Party which has a stronghold in eastern Germany. And for the Christian Social Union, which is very strong or only exists, only runs in Bavaria. These regional parties benefited from this kind of rule.

Stephan Kyburz: So just for people maybe who don’t know, the Christian Social Union was the coalition partner of the CDU, the Christian Democratic Union of Angela Merkel. And it was a really important partner in government. But still they are separate parties.

Armin Schäfer: It’s even a bit more than a coalition partner. I mean, they are a separate party but usually, they have one parliamentary group. So, I mean, they always cooperated with the Christian Democrats. It’s really one, I mean, formally it’s two separate parties. So they have two different heads of party as well. But they always cooperated and the Christian Democrats, so the larger one, doesn’t run in Bavaria and the Christian Social Union, which is the sister party, doesn’t run in any other Länder region than Bavaria. So it’s a very tight connection. So for most people, it’s almost like one party, but formally it’s separate, but it’s not like they’re entering a coalition between, let’s say the Social Democrats and the Liberal Party, I mean, they are really worlds apart. So it’s the very close long standing ties, but with that regional connotation to the Christian Social Union. And still they would have to manage to get 5% of the overall vote. And that’s important. I mean, that’s the reason why they are so important in terms of the electoral system because if they don’t manage to win 5% votes nationally, even if they only run in Bavaria and there wasn’t that exemption with the basic mandate clause, they will not be able to enter parliament. And so that was not a problem in the past because that basic mandate clause made sure that they always would be in parliament. But now the basic mandate clause doesn’t exist anymore and it might create problems in the future for that particular party. And as I said for the Left party.

Stephan Kyburz: So just to recap: the threshold, the 5% threshold was kind of softened with this basic mandate clause. So that specific regional parties, that were not strong at the national level, but very strong at the regional level, like the Linke, they still entered parliament. And actually this is really important for representation, right? Because they are relevant political forces even though also mainly at the regional level.

Armin Schäfer: Yes, I’m a bit split when I think about it, because I mean, of course, they could somehow more formally enter a cooperation with the Christian Democrats. They have always been in government together or in opposition together. So I mean, they could deal with that problem because it’s basically a sister party that exists in different regions of Germany. But it’s very close. But the left of course doesn’t have that. And I mean, it used to be much stronger nationwide, but by now it’s a very weak party. It has split recently too. In the last general election, the Left party only got 4.9, I think, percent of the vote, which meant it would not be able to enter parliament, but it won three and you need 3 of these electoral districts. So it barely, I mean, it just made it into parliament and now we can discuss whether that’s a good thing or it’s not a good thing. I mean, the third electoral district they won was one part of the city of Leipzig and so they won the district, but with 22.8% of the votes. So I mean, that little number of votes was enough to gain a third electoral district which then meant they could enter parliament. In contrast, in 2013, both the Liberal Party and the newly founded Alternative for Germany, so the right wing populist party, they both had like 4.8, 4.7% of the vote nationwide, but they didn’t win any electoral districts. So they had a very similar vote share but didn’t enter parliament at the time. So we can discuss whether it’s a good thing in terms of representation, whether you know, you have that special kind of rule or you don’t. And it has been abolished now. And that’s a very controversial part of the reform that we’re going to talk about in a second. And perhaps it was also unnecessary to change that. And I think politically, it was probably a mistake systematically. I’m not quite sure whether I think we should have that kind of exemption.

Stephan Kyburz: I want to talk about the reform in a second. But first of all, maybe you would like to explain the 5% threshold, which after the reform would be really a hard threshold, we should explain why this threshold is even there, right? And that has to do with the parliamentary style of government in Germany mainly. I think maybe there are some other reasons.

Armin Schäfer: As almost always in Germany, it is part of the lessons from history and the Weimar Republic, I mean, what people didn’t want after 1945, so when the basic law was written and then the new state was founded in 1949, West Germany, they didn’t want a very fragmented party system and a relatively high electoral threshold makes it much harder for smaller parties to enter parliament. And that was one of the aims actually of that electoral law, people didn’t want a highly fragmented parliament and they thought of ways to make sure to get that. Even though they still wanted to have a proportional representation. But of course, a high threshold creates disproportionality. I mean, it really is, you know, it’s a break in the system and, and I mean, there’s a wide range, if you look at different countries. So I mean, the Netherlands has a proportional representation or proportional electoral system and they don’t have a formal threshold at all. That means if you receive around 0.7% of the votes, you will get a seat in parliament. Then other countries have 3%, 4%. Germany has 5%. And I think that Turkey has 10%. So very, very high of course, for reasons you can discuss them in another podcast, I guess on Turkey. But it’s a fairly high threshold and it creates disproportionality in the electoral system. And that was what it was intended to do. And then it was softened, as you said, with that exemption rule and the basic mandate clause because it allowed regional parties that were strong at the regional level to enter parliament. So it’s kind of a compromise, I guess.

Stephan Kyburz: So forming government is easier if you have less parties in the parliamentary system, if you have less parties that have to agree on a coalition agreement or something, but you say like in the Netherlands that still works, even though they have no threshold essentially.

Armin Schäfer: I guess in political science, we always speak about trade-offs and there is a trade-off between representation on the one hand and government accountability or the ability to govern at all. So if you have no threshold and proportional representation, you can get 17, 18 parties in parliament. That’s what happens in the Netherlands. In Belgium, there are a lot of parties in parliament too and it makes the formation of government very difficult at times because you don’t have easy majorities. Of course, you can get rid of that once you have a first past the post system. Then, I mean, ideally you only have two parties in parliament, but then you lose a lot of representation because a lot of interests that exist in society will not be able to and parties that exist will not be in parliament. And the German system is kind of in between, it is proportional, but it has a fairly high threshold which made it harder in the past for parties to enter parliament. And, therefore, for a long time it was only three parties in parliament and we spoke about a 2.5 party system because two of them were large as I said earlier and one was small. Then another small party entered, then another one and another one. And now we have two medium sized large parties, medium sized parties, and four smaller ones. But there might be more to come. And so it has changed over time and coalition formation might be much more difficult if you have to find a coalition between 3, 4 or five parties or even seven parties which exists in some countries. And if they are from one side of the electoral, of the left-right spectrum, it might still work. But often you have to find odd kind of coalitions with partners that don’t fit very well together. In a way that’s what we have in Germany right now. You have the Social Democrats and the Green Party which are fairly close in terms of program, but then also the Liberal Party, which is close in some areas like human rights and, and stuff like that. But quite far apart from these other two parties in terms of economic policy, and they still have to form a coalition because otherwise there would not be a majority, but it gets much harder as parties are far apart from each other. And you have to deal with more partners in a coalition agreement.

Stephan Kyburz: So we kind of see that even with a 5% threshold, there can be a complicated long process of forming a government. So there is no guarantee that there is an easy way to government. And maybe, even if there are more small parties, the dynamics might change to form a government. But that’s maybe also a different discussion in a different episode. But I think, yeah, that element is important.

Armin Schäfer: What I find interesting is that the same, exact same kind of rules works for a reasonably long time. But then society changes, people start voting for smaller parties, new parties are founded and are successful. I mean, like the Green Party was the first one to enter the national parliament, as I said in the eighties. And by now several other parties have managed to actually gain enough votes to enter parliament. And we can say in terms of representation, that’s a good thing. I mean, a broader choice set, I mean, there is a broader range of parties that you can reasonably vote for and still expect them to be in parliament and represent your interests. But the flip side is that it might be more difficult to form a coalition. And Germany is, I mean, for a long time, people thought it was, I mean, at at a sweet spot, actually, I mean, with a reasonable number of parties but not too many and not too few. So, I mean, it kind of had a compromise between representation and accountability. It worked quite well, but it’s debatable whether it will last and it might be more difficult in the future. And and if you look at our neighboring countries, if you have such a fragmented parliament, forming governments that last for the entire period, a legislative period, it becomes much more difficult

Stephan Kyburz: And also it’s more likely that the coalition will break apart during the legislation.

Armin Schäfer: I think there’s quite a few findings that show that. Or if you think of Israel, another country where a lot of parties enter parliament, it’s hard to form stable governments over a long time. But I mean, as I said, it’s only one virtue of an electoral system to make it easy to form government. Another one is to represent people’s preferences as closely as possible. And if you want to achieve that, you need less disproportionality in your electoral system. So, I mean, it’s hard to find the sweet spot between representation and accountability or being able to govern.

Stephan Kyburz: Now, finally, we want to talk about the reform and what are the important elements. And they have all to do what we all already discussed. So they are all connected to those issues. And I just summarize: So essentially, it’s quite simple, right? Because the overhang mandates were abolished, the compensatory mandates, which are a consequence of the overhang mandates, were abolished. And also the basic mandate clause was abolished. And so that parliament, the Bundestag is restricted to 630 mandates and that’s a fixed rule. So there will be no more additional mandates.

Armin Schäfer: Exactly. And there are still 299 electoral districts. And perhaps one way to look at it is that there was a trilemma between three goals that you could not have at the same time. So keep the size of the Bundestag as it should be 598 or 630 or what have you. To have a proportional system of representation. And then to guarantee that each district selects a member and that member is actually sent to parliament. So, and these three goals that under the circumstances that we discussed with the changed party system and the changed voting behavior did not work any longer. You could not have all three of them in the past. That meant that parliament just grew bigger and bigger. And now the solution they found is to say, well, we will not have any surplus or overhang mandates anymore. Therefore, we don’t need compensatory mandates either. And how do they achieve that? If you win more electoral districts, more seats in electoral districts than you should have according to your proportional share, then some of your members will not be sent to parliament. Which ones? Those who had the lowest number of votes in the electoral district. So we will just start with the person who won a district but with a fairly small plurality of votes, he or she will not enter parliament until you only have the number of people from electoral districts sent to parliament that matches your overall vote nationwide. So that solves the problem and, and they made it a little easier for everyone to accept because they increased the size of the parliament from 598 to 630 that eases the problem a bit.  But it could still mean that people will not enter parliament even though they have won their electoral district. And that’s controversial but it solves the problem of overhanging mandates and compensatory mandates. They got rid of the basic mandate clause that we talked about earlier that you could still enter parliament if you want. Three electoral districts was not necessary to achieve the overall goal to make sure that the parliament does not grow. So it was part of the reform, but it was not necessary for the actual aim of the reform.

Stephan Kyburz: The soft threshold that we had with the basic mandate clause became a hard threshold. And this is again, especially important for two parties, which is the CSU, which wins a lot of districts but has a vote share around 5%. And they could easily drop below that if we think of smaller parties emerging. And the other part is the Linke, the Left, who only came into parliament because they had three mandates, right? And those are the ones opposing this reform.

Armin Schäfer: For the left, I mean, it’s really dramatic. I mean, as I said earlier, they have split, too, at the moment. It’s unlikely that they will be able to gain 5% of the vote. So for them, it was really, I mean, almost a guarantee, if they managed somehow to win three electoral districts, two of them in Berlin usually and then perhaps Leipzig, so only large cities, then they could still enter parliament. But with this reform, it’s very unlikely that they will be able to enter parliament. If nothing dramatic happens in terms of the second vote they get. For the Christian Social Union, it’s the same. I mean, if they drop below, let’s say 30%, 30 something percent in Bavaria, they will no longer have 5% of the vote nationwide, which would now mean that they could not enter parliament. And both of them actually went to the constitutional court to file a lawsuit against it and say it’s unconstitutional and it violates competition and stuff like that. And in terms of political culture, what I mean, I see why you would do that in terms of why you thought that the basic mandate clause perhaps was not a good fit to the electoral system. But in terms of political culture and consensus orientation, that I talked about earlier, I think it might have been really a mistake to do that because you could have achieved all the other aims without getting rid of the basic mandate clause. And you alienated two parties and you didn’t have to do or the government didn’t have to do that to achieve the aims that they had. So I’m not quite sure why they actually did it.

Stephan Kyburz: And what is also, from my perspective, a little bit controversial is that the government coalition brought through this electoral reform, right? So it was brought in by government and once this basic mandate clause was abolished, there was a lot of opposition, right? Especially from CDU and CSU. And thinking about that an electoral reform should have broad based support. This is really a little bit critical I think because it looks like the government coalition wants to get rid of some of the opposition.

Armin Schäfer: That’s how it is read. And as I said, I guess it was a mistake to do it because you didn’t have to do it. And I think electoral laws, I mean, that’s one of the areas where you should strive for consensus, I guess, because you can change it with a majority in parliament. So it’s quite possible that another majority might change electoral law in the future. I mean, that’s not likely to happen anytime soon, but we could have a majority of the Christian Democrats together with the AFD and they could change the electoral system if they had more than 50% of the MPs, which could happen under certain circumstances. And then, you know, you could introduce something like the Hungarian electoral system where you no longer, I mean, you still have two votes, but it’s no longer necessary to make it overall proportional because you keep these two votes separate and then it becomes very, very disproportionate and it benefits the largest party. It would be possible to have these kinds of reforms in the future. And therefore, I think it is important that parties strive for consensus in electoral reforms and this government didn’t do it. It was not possible to really find a solution together with the Christian Democrats before they introduced this reform bill. I can see that at one point they had to decide on a reform, but as I think I mentioned already twice now, it was not necessary to get rid of the basic mandate clause. And that’s, that really made it very controversial. And we’ll see whether the Constitutional Court will accept that. But the overall reform. I mean, everyone agreed that we needed to have some kind of reform, but then parties really had very different ideas how it should look like. And they all wanted to have the kind of reform that might benefit themselves, which is very problematic too.

Stephan Kyburz: Yeah, exactly. So like passing electoral reform on a minimal coalition, on small support, it is kind of a slippery slope, right? Because once the other party, the opposition gets into government, they might just want to do the same, right. So it’s becoming like a tit-for-tat kind of game. And with electoral law, you just don’t want to have a tit-for-tat, that’s, that’s kind of the worst.

Armin Schäfer: I mean, it’s actually one of the areas where I think that a Citizen Assembly would have been good, that people discuss basic ideas about reforms or extended period of time, consulting experts, of course, and then, you know, come up with some kind of reform idea because if parties negotiate that. And as I said, in the past, Germany was consensus oriented and I think they would have passed an electoral reform with a minimal coalition. But by now it happened and I think that’s a very dangerous move because I mean, as I said, it could really be the case that another majority then changes it in another direction. And I mean, you don’t want to see an electoral reform each term because different majorities always try to change it in a way that they benefit from the reform. And I mean, there are certain areas of I think Rules of the game, you know, as a famous podcast is called, that you don’t want to politicize. I mean, you want a good solution and I’m not sure it was a clever move in that sense.

Stephan Kyburz: Do you know whether by keeping the basic mandate clause, they could have kept CDU on board with the reform? Is that clear or is that unknown?

Armin Schäfer: I’m not quite sure, but I mean, they would have increased the probability that they agree to it. And I think, yeah, that’s fine because I mean, even the Christian Democrats agree that, I mean, an ever increasing size of parliament is not something that citizens are happy about. And that there needed to be some kind of change that almost all parties agreed upon that. But with that additional move, I think they really lost the support of the largest opposition party. And I think that’s problematic and the chances would have been much better, had they not done that to agree with the Christian Democrats, Christian Social Union on a reform

Stephan Kyburz: And an alternative reform would be to lower the threshold, for example, 3% which would exactly include the CSU. So you would have more of the smaller parties in parliament. Of course, the party system might get a little bit more fragmented. What is your opinion about changing the threshold?

Armin Schäfer: I would prefer that from a systematic point of view. I think it’s better to have a lower threshold and not to have the basic mandate clause. I think it’s more systematic to just say we lower the threshold perhaps to 3%. But of course, people are so used to what they know. And I think if you, if you had a poll in Germany whether people think that you should lower the 5% threshold, most people would say no, no, no, we have to keep it that way because it’s just such a strong effect of being used to something. But I think if you, I mean, look at electoral systems from a comparative perspective, it would make sense to lower it somewhat. But then it’s still, I mean, it’s always a bit arbitrary and to say, which is the right threshold, I mean, should it be 4%, 3% or even less? And, and we know, of course, empirically, once you lower that very much, many more parties will enter parliament. And we’ve seen that with the European parliament election that just took place, Germany has 96 seats, I think in the European parliament and it’s many more parties that actually managed to gain at least one seat because there is no electoral threshold for the European parliament election. So we know what would happen once you lowered it very much. But there might be, you know, solutions that, you know, are viable like you could lower it to 4% or something like that. But actually, that was never really on the agenda in Germany. And that’s something, I mean, people didn’t even discuss that. In my perception, there would have been another solution just to lower the number of electoral districts. I mean, if you move from 299 to 200 for example, it’s still possible to get the problem that we described earlier with the imbalance between the two votes. But it would have been much less likely. But many parties didn’t want that because it will mean, I mean, you know, for European standards, Germany is a relatively large country, it would mean that electoral districts would be very, very large and most parties didn’t want that because, I mean, if you look at the north east of Germany, then that would mean that one electoral district, I mean, would be very large in size and then you have cities and they have three or four electoral districts and in Mecklenburg or something like that, you would really have to travel quite far and would still be in the same electoral district. But it would have been another solution for the problem to really lower the number of electoral districts. But that wasn’t discussed very seriously either.

Stephan Kyburz: And the idea of electoral districts of course, is that personal element, right, that people are personally represented by a member of parliament and of course, if that district gets larger and larger, that kind of connection that is personal also seems to get lost even though there is probably a lot of arguments that are like questioning this, this kind of personal representation.

Armin Schäfer: And many people don’t know who’s the candidate running in their electoral district, they don’t know who won the district.  So I’m not quite sure, I mean, but that’s what we tell ourselves always. I mean, it’s very important to make connections between members of parliament and the citizens still, whether it works well, empirically is an entirely different question. And that’s, I mean, it’s part of what I said in the very beginning of our conversation. I mean, it’s a very federal country and that you need a kind of regional representation and that you need someone in parliament for each region of Germany. That is something that many people agree to. And of course, it’s not guaranteed any longer under the new laws. And that’s also a very controversial aspect because some electoral districts might not have a member of parliament. You could still fix that if they had people on their lists from each region of each state. But if they don’t do that, it’s possible that some electoral districts will not have a representative in parliament. And many people think that’s a problem. I’m not quite sure. I mean, I’m not sure why we privilege regional representation so much in contrast to other descriptive elements. I mean, you know, women are underrepresented and working class is hardly present in parliament. That doesn’t seem to bother too many people. But regional representation seems to be very important in Germany. And as part of the federal mindset that we perhaps rightly have.

Stephan Kyburz: And also, of course, the districts are first-past-the-post like system. So the candidates who win, they can have a very low vote share in their district. I think there was an example of 18.5% winning the district. So that also is not like a very strong argument in terms of representation.

Armin Schäfer: Right, exactly. But I mean, somehow some people seem to cherish that and think it’s important. And as I said, I mean, the left party, they only entered parliament because in one city, they had 22.8% of the votes of the first vote, which isn’t, you know, a lot. And so a lot of people did not vote for this party and, and that was the key to actually get the third electoral district and then enter parliament. So I’m not sure whether that’s really convincing in terms of representation that I mean, if you have 18 or 20% in one district that guarantees representation or in three districts. But if other things don’t count, I’m not sure whether I find that very convincing,

Stephan Kyburz: Maybe there would be an opportunity for an instant runoff or a rank choice on the district level. So to have a more majoritarian system on the district level.

Armin Schäfer: That’s something I would have found interesting. But, ok, that was way beyond the discussions we had. I think, you know, people really, really try to change it and I mean, I think almost always in many countries, changes of electoral laws are always conservative, in some sense, they, you know, continue to do what they used to do with some changes. And I mean, these kinds of major changes were hardly ever debated. I mean, you could have also said we get rid of the first vote and the electoral is, I mean, and then, and then there’s only a proportional representation, you only have one vote because 30%, 35% of the voters don’t really understand what the difference between the two types of votes they cast and they are named in a not very smart way either. So, I mean, that would have been possible too to just get rid of the first vote and then say, well, it’s all party list and it’s about proportional representation. But I mean, people didn’t even imagine that. I mean, that was never on the table in any of the debates.

Stephan Kyburz: Yeah, of course, you don’t want to completely overhaul the system. It’s unlikely that you will succeed.

Armin Schäfer: Yeah, I mean, I think it happened in New Zealand. I mean, they switched to the German type of electoral system, in the late nineties. So it happens. But it’s rare. I mean, most countries don’t change their electoral laws very drastically but they try to do it. I mean, in a piecemeal fashion and, and it might be reasonable because people are used to it and know it and you don’t know what’s going to happen if you change too many things at the same time. I mean, I understand why it’s the case but as a political scientist, of course, we are always looking for the best electoral system and think, I mean, you could have done something totally different, but it was not on the agenda. I mean, that was really not debated.

Stephan Kyburz: So what do you expect from the Federal Constitutional Court? I mean, they have debated already, I think in April or in March, the electoral reform, but the decision hasn’t been taken, right?

Armin Schäfer: It’s hard to tell. And I don’t think that the Federal Constitutional Court always helped to reform the electoral system because at one point in the past, they said yes, it’s quite ok to have about 15 surplus overhang mandates. And that seemed to be a very arbitrary number that they decided on at that point. So it’s hard to predict. What I read, and, you know, that’s all I know is that, I mean, they were quite skeptical about the reform and certain elements of the reform and it’s really about the possibility that you win an electoral district and don’t enter parliament. That seems to be something they are having problems with and struggling with. But it’s hard to predict. I mean, we don’t know, as of now, the constitutional court in Germany is not very politicized. Again, it’s not comparable to the US Supreme Court in any sense. I mean, they try to come up with legal solutions. I mean, I don’t think it’s a continuation of political fights in the court that hasn’t happened so far. But it’s hard to predict whether they think it’s acceptable or whether they will overrule it, which has happened in the past,

Stephan Kyburz: But for sure they need to decide kind of soon because there will be new elections upcoming.

Armin Schäfer: Yes, there is a general election at the latest in 2025. If the current government survives, some people question that too. And then of course, you need a lot of time to come up with your party lists and the candidates for the electoral districts and so on. So, I mean, they would have to decide relatively early because that’s something again, you want to avoid that you run a general election and then afterwards you learn that it was unconstitutional and I mean, the results are somewhat, not valid and, and then you know what happens, then you have to vote again or something like that. So I think there’s time is critical and they would have to decide relatively soon to make sure that everyone knows that these are the electoral rules that we are going to use in the next general election, which is most likely September 2025.

Stephan Kyburz: And the reform was passed. So it’s already enacted and unless the constitutional court rejects it, it will be the new electoral law.

Armin Schäfer: Yeah, it’s a standing electoral law but as I said, it would be really bad if you run an election on these new laws and then, I mean, then it’s overruled and, and there’s a ruling that it’s unconstitutional. I mean, that’s really, everyone I think wants to avoid that and rather have a change before that, but I don’t know actually whether they will decide anytime soon. But, I mean, it’s on the agenda and they’re dealing with it. So, I mean, usually it will happen because they understand there’s a problem. I mean, the constitutional court knows we cannot wait for another 10 months and then come up and because then it’s really very hard to still have the election.

Stephan Kyburz: So essentially, if the law stays, then we might see that CDU is integrating CSU quite soon, maybe just to make sure that they are represented.

Armin Schäfer: In the European Parliament election, the Christian Social Union did quite well. So, I mean, by now, I think they still expect to get more than 5% of the vote nationwide. But at one point it might happen because, I mean, almost everywhere the catch all parties are shrinking and it’s also happening, has happened in Germany and is happening in Germany. And that means, it gets more and more difficult for that party to make sure that they still get 5% of the vote and then they would have to deal with it. And of course, if they gain a majority and they have the right partners, they might change the electoral laws in the future to try to avoid that. Because the Christian Social Union, they are really unhappy about that. I mean, that’s really part of their identity and they don’t want to formally enter, I mean, be one party with the Christian Democrats and something like that. I mean, there are other solutions, I guess too, but it’s more complicated and they really don’t want that. And so they’re looking for solutions, I guess.

Stephan Kyburz: So, Armin, thanks a lot for these assessments. It’s been very interesting to hear your perspective and your explanations on what is going on and for the audience, you know, people who want to maybe read a bit more about the reform or any other topic that you think would be interesting. Do you have any books or articles that you could recommend?

Armin Schäfer: So one book that I keep coming back to and which fits to our topic of representation is Hanna Pitkin’s book, “The Concept of Representation”. It’s very old. It was published, I think, in 67 but it’s one of the classics on what does representation mean. And it’s one of the books I’ve read, I think three times and I, you know, keep reading parts of it. So that’s my first recommendation, if you want to think about representation. My second recommendation is Robert Dahl, another classic: “Democracy and Its Critics”. I keep coming back to that book too because it’s such an essential read about how democracy functions, should function, what problems of democracy are.  And he also speaks about what role should constitutional courts have and how important should they be and what should they do. So I think that’s interesting. And perhaps the third one, if I may, I mean, it’s a more recent one, Martin Gilens “Affluence and Influence”. It is about the US and how biased political decisions are in favor of better off people and against poorer people. And I’ve been working on similar topics. So that’s something I was always very interested in.

Stephan Kyburz: Those sound really great. Definitely Hanna Pitkin’s book sounds very interesting. Especially sometimes it’s nice to read like an old book that is kind of out of current context and they hold up quite well often.

Armin Schäfer: It defined the debate about representation for a long time. And then people started, of course, question her approach and I criticized her. But still, I think it’s essential reading. If you want to think about what does representation, political representation, really mean?

Stephan Kyburz: Ok, great. So Armin Sheffer, thanks a lot. I really appreciate you have taken the time to be a guest on the Rules of The Game podcast.

Armin Schäfer: I have to thank you. It was great to be on your show. Thanks very much.

Outro:

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