A general view of the empty plenary of the Bundestag ahead of the start of the session in Berlin in 2022. | Photo credit: AFP
the story So Far: On July 30, Germany’s Federal Constitutional Court upheld the government’s move to shrink the lower house of parliament, which will take effect from the 2025 federal elections. The current 20th Bundestag (German parliament) is the largest parliament since the inauguration of the first post-war legislature in 1949, with a total of 736 representatives. The current number makes the Bundestag the largest of all democratically elected assemblies, even larger than the EU’s 720-member parliament. The continued increase in the number of representatives has raised concerns about the pressure it puts on the public treasury as well as the implications for the Bundestag’s functional efficiency.
What is the background?
The July decision refers to the continuing expansion of the Bundestag, a result of Germany’s complex electoral structure as well as the fragmentation of the party system in recent years.
Since the country’s second quadrennial federal elections in 1953, each voter has exercised two votes, known as the personal proportional or mixed-member proportional representation system. The first vote is cast to directly elect a candidate from a local constituency through the traditional first-past-the-post method of obtaining a simple majority for a total of 299 seats. Voters simultaneously cast a second ballot to choose a political party for 299 other parliamentary seats, which are distributed across Germany’s 16 regions. A party must either obtain 5% of the second vote share or at least three personal constituencies to qualify for entry into parliament. The 5% threshold was set to prevent too many different parties from entering the Bundestag. It is the second, i.e. state list vote that determines the relative strength of parties in the Bundestag, as seats are allocated in proportion to the number of second votes each party receives.
The process of converting second votes into seats is a two-stage one. Each region gets seats in proportion to the population living there. These are then distributed among the parties based on their respective share of second votes. The seats for each party at the federal level are subsequently determined according to the number of seats it has won in the states it represents, as well as the number of seats it gets based on its share of the second vote. The higher of the two figures is the final number of seats a party gets in a region. The cumulative total of seats in the regions forms the party’s strength in the Bundestag.
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Why has the number of MLAs increased?
Germany’s two largest parties, the ruling centre-left Social Democrats (SPD) and the opposition centre-right Christian Democratic Union (CDU), have been securing the maximum number of directly elected seats for the past several decades. These first vote seats are always more than the seats they could get based on their share of the second vote and are therefore called additional seats or overhang seats. However, given Germany’s individual proportional system, parties have been allowed to retain these overhang seats. Importantly, even though the support base of the larger parties has eroded in recent years due to the emergence of smaller parties, they have managed to maintain their dominance over first vote seats.
In a 2008 ruling, the Constitutional Court deemed the increasing number of overhang seats a violation of the equality of elections and therefore unconstitutional. In 2012, the Constitutional Court addressed this imbalance by ruling that the large number of additional or overhang seats received by larger parties should be compensated for through the creation of “balance seats” for smaller parties. This would be in accordance with the principle of equal suffrage, direct elections, and equal opportunities for political parties. The ruling therefore inevitably resulted in a further increase in the number of legislators. The Court has since upheld amendments to the election law that broadly reflect its 2012 ruling.
What steps did the government propose?
On March 17, 2023, the government introduced legislation according to which the size of the Bundestag will be limited to 630 representatives from the 2025 federal elections. While the number of candidate seats will remain at 299, party lists will increase to 331 seats. The new limit was decided in 2022 under the guidance of an electoral rights commission and will be achieved by eliminating both “overhang seats” and “balance seats”. Crucially, the weightage attached to candidate seats will be reduced far. Getting a simple majority in an individual constituency will no longer automatically translate into a parliamentary seat. Where parties win more candidate seats than their second vote share, the individual winners with the lowest vote share will not be awarded a seat. This has now been upheld by the Federal Constitutional Court.
However, the government has faced strong criticism for not following through on a broad consultation process before the new measure was passed. The main opposition CDU has already said it would withdraw the law if it returned to power.
The author is Director, Strategic Initiatives, Agnoshin Technologies.