Olaf Scholz raised the issue of trust today. Several chancellors have used it in a different way than originally intended. Why this is a question is going to get bigger.
Christian Banger/Times Online
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When German Chancellor Olaf Schulz (SPD) delivers a vote of confidence in the German parliament on Monday, some lawmakers may remember the last time a German chancellor did so. On 27 May 2005, Gerhard Schröder went to the microphone and asked parliamentarians not to express their confidence in him, Jens Spahn, Friedrich Meyer Friedrich Merz, Katrin Göring-Eckardt, Rolf Mützenich and Olaf Scholz Scholz himself sat in the Bundestag.
Olaf Scholz raised the issue of trust on Monday.Image: trapezoid
Most of those who were there probably remember the brief but powerful appearance of Green Party MP Werner Schulz. The former East German civil rights activist took to the podium shortly after Schröder and said: “I will not participate in this vote. What happened here was an orchestrated absurdity.” As the red-green parliamentary majority formed Member's Schultz said the trust issue was “a fiction.”
Schulz spoke out as Chancellor Schroeder said he no longer had a viable parliamentary majority to justify a vote of confidence. This was at least controversial at the time, given that the Red and Green parties had a three-vote majority – and at the start of the legislative period Schröder, facing a majority of just five, said: “A majority is a majority – if we have it, we'll use it »
After losing numerous state elections, Schroeder wanted primarily to launch a political offensive. There's just one problem: Under the constitution, the prime minister can't simply dissolve parliament. One of the few ways to do this is to lose a vote of confidence. Schröder therefore claimed he no longer had a majority and asked his own MPs to confirm this.
Gerhard Schröder also raised the issue of trust in 2005, but he lost the bet.Photo credit: IMAGO / Christian Thiel
Councilman Schultz's views were not heard at the time. Gerhard Schröder was elected in September 2005 after losing a vote of confidence. But Schroeder's calculation didn't work, despite his stellar campaign performance. Angela Merkel became Chancellor of Germany and served for 16 years.
Basic Law aims to make frequent new elections more difficult
However, the question of exactly how much leeway the chancellor will have when dealing with the confidence vote instrument has yet to be conclusively clarified. Will he or she ultimately be able to hold an election when it suits him or her? Could Germany be like Britain, where the prime minister calls for new elections if the polls go in his favour?
The short answer is: no. The Basic Law explicitly takes precautions to make frequent new elections and changes of government more difficult. Such was the experience of the Weimar Republic, with government after government overthrown by parliament and finally the Reich President ruled by a chancellor of his own choice and emergency decrees. These precautions also include dissolving the Bundestag and holding new elections with only two options: either because no one reaches the majority required to become Federal Chancellor, or because the Federal Chancellor loses the vote of confidence he requires.
But there's a more complicated answer. Because the powerful tool of a vote of confidence has been used five times so far, it is sometimes used for reasons other than expressing confidence in the prime minister. Sometimes the threat of new elections does help to discipline one's own representatives, and then, as in Schröder's case in 2005, it is deliberately provoking new elections—what constitutional lawyers call a “false trust issue.”
Willy Brandt, who first called for a vote of confidence in 1972, was actually not sure he would get a majority. Parliament is deadlocked after two members of his Social Freedom League defected to the opposition. Brandt's stated goal, however, was not to express confidence but to bring about new elections. He got it, with a turnout of 91.1%, still unheard of today, and Brandt's coalition with the FDP winning a huge majority at the time.
Willy Brandt also raised the issue of trust.Picture: www.imago-images.de
In the spring of 1982, Helmut Schmidt also had legitimate doubts about the stability of his coalition of SPD and FDP. Our internal resistance to NATO's twin decisions and its economic policies is too great. He won the support of MPs again with a vote of confidence, but the alliance soon fell apart. Schmidt was voted out by parliamentarians and Helmut Kohl succeeded him. This is achieved through a constructive vote of no confidence – the only way to vote out a Prime Minister during his term. To do this, the Bundestag must not only express no confidence in the prime minister, but also elect someone else.
A few months later, Kohl also held a vote of confidence and did not lack a majority. He gained a clear advantage in parliament after Liberal Democratic MPs defected to the federation. Nonetheless, he also called for a vote of confidence, intending to express a vote of no confidence in order to hold new elections.
From Kohl's perspective, it's understandable to want a new vote after a change of government. Meanwhile, it became apparent that the constitutional instrument had been hacked. Federalist and FDP MPs withdrew their confidence in Kohl, despite the fact that the opposite was true: they trusted him and wanted new elections to confirm his majority.
Constitutional institutions did not stop Cole at the time. Neither did federal president Karl Carstens, a former CDU member and lawyer who had considerable concerns but ultimately acquiesced. The same was true of the Federal Constitutional Court, where the majority considered Kohl's return to the vote of confidence to be lawful, despite only a minority vote by two judges. Kohl was re-elected in March 1983, defeating the Social Democrats and their top candidate, Hans-Jochen Vogel.
Former Chancellor Helmut Kohl.Image source: EPA/MTI
For Berlin legal historian Jan Thiessen, Kohl's trust issue meant “contempt for the ideas of the authors of the Basic Law.” From now on, the de facto rule is: the Federal Chancellor decides whether his majority is in danger and whether new elections are necessary. The Federal President must agree, but in order to refuse, he first needs the backbone and secondly concrete evidence that the Chancellor's reasons are nothing more than an excuse. FAZ later referred to this as a “quasi-self-dissolution right”.
Even then, the Constitutional Court itself was committed to evaluating the prime minister's actual political decisions very carefully. Here, as in similar cases, Karlsruhe embraced what Thyssen calls the “core political sphere.” “You could also say: Unless a document is leaked that clearly shows that the missing majority was staged, the Constitutional Court will not take action against it,” Thyssen said.
Gerhard Schröder raises trust issues twice
Kohl himself stopped using confidence votes during his 16 years in power. His successor, Gerhard Schröder, did so twice. The first time was in November 2001, when Schröder wanted to ensure the stability of his alliance, just as Helmut Schmidt had done in 1982. Schröder combined the vote with a vote of confidence as several MPs, including the current green federal environment minister Steffi Lemke, wanted to vote against the deployment of the Bundeswehr in Afghanistan. Eight Green Party opponents then agreed, four of whom voted for the deployment. Schroeder's strategy worked, and he won a vote of confidence.
Four years later, things were different, with Schröder again asking for a vote of confidence after losing multiple state elections, this time making it clear he was going to lose.
In his speech to the Bundestag, he referred to the precedent set by Helmut Kohl. The language used by the Prime Minister will make it easier for the Federal President and the Federal Constitutional Court to allow new elections. Schröder spoke of “my political assessment” and made it clear that “under the current circumstances, I cannot count on obtaining the necessary, ongoing trust within the meaning of Article 68 of the Basic Law.” Article 68 stipulates that Trust issues.
Things happened just as Schröder had planned: As expected, the opposition expressed distrust in him, as did many in the SPD and Green government factions. A few weeks later, Federal President Horst Kohler dissolved the Bundestag. In a televised address, Khloe acknowledged that many people were “uneasy about the procedure.” “There are good reasons” and the Basic Law only provides for early elections in exceptional circumstances. However, the Constitutional Court ruled in 1983 that the Federal President must “take into account the assessment of the Federal Chancellor unless another assessment is clearly preferable”.
Legal historian Thyssen is critical: “Federal President Carstens expressed concerns in 1983, but Kohler left almost nothing behind. He said: I, the federal president, am no wiser than the chancellor.” You. Or say: If the chancellor says most people are gone, that's it.
Allow for more or less trust issues?
After all: if Olaf Scholz asked for a vote of confidence on Monday, there would hardly be any constitutional doubts. Scholz's majority is really gone, and even if he doesn't want a new election, he has no choice but to ask for a vote of confidence. On the other hand, it is a shame because perhaps it is time for the Federal Constitutional Court to discuss again when a vote of confidence can be requested.
Because in the future, uneasy alliances will become the norm rather than the exception, the debate over false trust will resurface. Do we need a more direct approach to new elections when the government can no longer be led? Particularly in Thuringia, over the past five years we have seen political paralysis as the state parliament was unable to give the government a majority or dissolve it. The constitution allows in principle the dissolution of state parliaments.
Or is it the other way around? Should it now be made more difficult to simply hold a federal election if the coalition government doesn't succeed? At least that's what Thiessen says. “I am very opposed to simplifying the path to new elections.” It is not ruled out that one day there will be irresponsible heads of government who take advantage of the leeway to hold new elections at any time. This is already possible given the Karlsruhe case law. Thiessen said there was no need to amend the constitution to prevent such abuses. But the Constitutional Court will interpret the Basic Law more closely in line with the spirit of its authors.
This article first appeared on Zeit Online. Watson may have changed the title and subtitle. Click here to view the original article.
