The German Constitutional system with a special aspect to the German Bundestag, the German parlament.

Ass. iur. Ingo Koschenz, Mag. rer. publkoschenz@uni-potsdam.de

Content1. The German Constitutional System written in the „Grundgesetz“

(Basic Law)2. The execitive power3. The Legislation in Germany4. The German Bundestag• The actual German Bundestag• The majority in the past• The system of election into the Bundestag• Special: The problem of „overhang-mandates“

The German Constitutional System

The German Constitutional System

The German constitutional system is an example of a parlamentary democracy. It is – because of the strong position of the Chancellor - also called “Chancellor´s democracy”.The Bundestag elects the Chancellor as head of government and

head of executive power. He is designated, but he is not implemented by the president. So at least it is in the constitutional system not possible to have a Chancellor and a government without the confidence of the parliament.

So the vote of no-confidence in Germany has to be constructive: It´s not possible to deselect the chancellor by the Bundestag without voting a new one!

The Chancellor determines the guidelines of the policy – what fits with the Chancellor´s majority in the Bundestag.

The president don´t have a political function. He only represents Germany, but ho has no executive power..

In Legislation the president has no veto. So he has to sign every law that has gone through a normal legislation procedure.

Because of the weak position of Mr. President, he is not directly elected by the German people. He is elected by a special creation organ the Bundesversammlung (Federal Assembly), which consist of all members of the Bundestag and an equal number of representatives elected by the parliaments of the 16 Federal States. In fact everybody know who wins before the elections…

The German Constitutional System

The Legislation in Germany works by playing together of Bundestag and Bundesrat (Federal Council).But the “Bundesrsat” is not a second chamber of the

parlament! It´s the “representation of the Federal States of Germany”.

The Bundesrat only can stop a law which also include the power of the Federal States written in the Grundgesetz. In all other cases the Bundesrat only has the right of a suspensive veto, which can be overriden by the 50%+ one vote (Chancellor´s Majority) in the Bundestag.

The Bundesrat consist of representatives of the Governments of the Federal States. States have between 3 and 6 votes – depending on the size. Total number of votes 69.

Very often Chancellor´s majority don´t have a majority in the Bundesrat. Very typically for Germany is a great political compromise, because there are many laws affecting the power of the countries.

To amend the German Grundgesetz you need a 2/3-Majority in Bundetag and Bundesrat. It´s not possible to make so called “constitutional laws” like in CR. There is no amendment of constitution without directly changing the text of constitution.

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The German Bundestag:

The 17th Bundestag (elected 2009-2013)

Government:CDU (conservative) : 193 seatsCSU (very conservative): 44 seatsFDP (liberal):

93 seatsTogether: 330 seats

Opposition:Social Democrats: 146 seatsGreen: 68 seatsLeft-Party (formal communists):76 seatsTogether: 290 seats

Results of the elections to the Bundestag and federal Governments of 1949 until today

The system of election into the Bundestag

The Bundestag is elected in a so called„personalized-proportional system“

Everybody has two votes First vote for a candidate in the constituency after the

„first-past-the-post“ system in one of the 299constituencies in Germany

• Second vote is for a party list, which represent thestrength of a party in the Bundestag

First the 299 directly elected candidates become members Of the Bundestag (mostly candidates of CDU/ CSU or SPD)After that the list candidates fill the vacant 299 seatsProportional after the strength of the party by the resultsof the second vote.

5%-Border: Parties with less than 5% of the votes or less than3 directly elected candidates are not allowed to fill in the seats.

The system of election into the Bundestag

The problem of „overhang-mandats”: The German Bundestag normally has 598 seats, but in the moment, we

have 620 members of parliament Reason for this is the existence of at the moment 22 so called “overhang-

mandates” (20 for CDU, 2 for CSU) Germany votes in each of the 16 states, so the system of the directly

elected candidates and the fill in by list works separate for every state If you win more candidates by the first vote than you proportional won by

the second vote, the elected candidates are allowed to become member of parliament as a so called “overhang”.

In the 2009 election for example the CSU won all 45 constituencies in Bavaria, but the second vote result gave them only 42 seats. So the CSU got 3 overhang-mandates

But after the elections one of the members of Bundestag of CSU, Mr. Seehofer became Prime-minister of Bavaria and resigns as member of Bundestag, so CSU and the German Bundestag lost one member during the period.

The system of election into the Bundestag

The problem of „overhang-mandats”: The German Federal Constitutional Courts has rejected the current system

of overhang-mandates as unconstitutional. The main problem is the problem of “ negative vote weight” (inverse

success value): A bad result for a party by the second vote with a very good result by the first vote can bring the party more seats than a good result in both systems of voting

The German Constitutional Court means that the principle “one man one vote” and “every vote is equal” does not fit with this result of the votes. For example at the 2009 elections the CDU or the CSU needed less votes to get a seat in Parliament than SPD or FDP.

So Germany is still discussing about a new voting system: Possible solutions are The whole of Germany is only one voting area – good result in one State

are offset with the results in other countries (CDU/CSU don´t want this solution – because they don´t want to make a list together

Introducing compensatory seats (This system exist in the election systems of the German States, but under certain circumstances Germany will have a very big Bundestag….

The system of election into the Bundestag

The problem of „overhang-mandats”:

One other solution would be the introducing of a majority system like in Great Britain

This already was planned during the “big coalition” of CDU/CSU and SPD between 1966-1969

The Grundgesetz is not against introducing a majority system

Because of the “protection of minority” until today Germany don´t want to introduce it.

It would be the end for small parties, for example for the liberal FDP