ON SEPTEMBER 18, THE Germans will go to the polls. The extraordinary elections are being held a year before the end of the Bundestag's regular four-year legislative term, thanks to an elaborate and, to many Germans, distasteful charade. That price would be well worth paying if it produced a government with the will and mandate for much-needed political and economic reforms. Germany "confronts monumental tasks," President Horst Köhler observed in a televised address on the need for fresh elections. "Millions of people are unemployed, many for years. Federal and state budgets are in an unprecedented, critical condition. The existing federal order is outdated. We have too few children, and we are growing ever older. And we must contend in a global, sharp competition." Few believe, however, that a new government--which will almost certainly be led by the Christian Democrats' Angela Merkel--will address those problems, and neither the CDU nor its competitors seriously propose to do so. The tortuous path to the elections and their near-certain futility arise from the same source: By constitutional design, the country cannot have a governing executive.
The architects of the German constitution sought to learn the "lessons of Weimar," where a fractious multi-party parliament, unwilling or unable to form a government, prompted increasingly frequent general elections, government by presidential emergency decree, and eventually, with President Paul von Hindenburg's help, the Nazis' power grab. The "lesson" was to protect the legislature's authority and stability--fatefully, to the exclusion of the quasi-plebiscitary mechanisms through which other parliamentary systems ensure effective government.
Unlike the British prime minister, the Bundeskanzler may not call for elections when that is in the government's, or for that matter the country's, best interest. Only if the chancellor requests and loses a parliamentary "vote of confidence" may he then ask the president--an otherwise ceremonial figure--to dissolve the Bundestag and to schedule new elections. (The president may, but need not grant, that request.) After Willy Brandt in 1972 and Helmut Kohl in 1982, Chancellor Gerhard Schröder initiated this procedure this past May, following his party's devastating loss in the North-Rhine Westphalia state elections. The outcome, Schröder said, showed that his government's program--a hodgepodge of managerial mini-reforms, grandiosely styled "Agenda 2010"--could not be sustained without a fresh popular mandate.
That made political sense. The Social Democrats are badly divided. Even as Schröder pushed his mildly pro-market reforms, SPD chief Franz Müntefering railed against capitalist "locusts," meaning foreign hedge funds. And while the Red-Green government could have muddled through until the scheduled 2006 elections, Germany would benefit from a government with a clear mandate. Still, Schröder's contention that he no longer possessed a working parliamentary majority was transparent nonsense. The North-Rhine Westphalia results had no effect on the Bundestag, where Schröder's government had never lost an important vote and continued to enact Agenda 2010 reforms. In July, Schröder "lost" his vote of confidence only because SPD delegates were instructed to support their chancellor by abstaining.
The need for such constitutionally induced contortions is exacerbated by a 1983 decision by the Constitutional Court, which held that the Bundestag may not simply dissolve itself. Its lack of confidence in the chancellor must be genuine rather than manufactured. How do we know? The chancellor, the court said, must make a credible showing that he lacks a viable majority. The president may order new elections only if he finds that the chancellor's assessment was "not obviously false." Finally, the court reviews the chancellor's and the president's exercise of their discretion. This precedent compelled Schröder to rationalize the trumped-up vote and President Köhler to pay lip service to Schröder's absurd averments.
When two delegates contested the process, the Constitutional Court let the elections go forward by pretending to review the farce and declaring it in good constitutional order. As a concurring justice rightly observed, it would have been more honest for the court to acknowledge that the chancellor may dissolve the Bundestag at his discretion, so long as the president accepts his wish. Judicial review cosmetics will only compel the chancellor, president, and court to paint another, thicker layer of lipstick on the next constitutional piglet. The court refused to come clean because the right to parliamentary self-dissolution, which Germany has now acquired de facto, is at odds with her constitutional parliamentarianism. The events of the past months, however, show that the legislature's cherished protections have become dysfunctional.
