The Bundestag is the second largest parliament in the world after the Chinese People’s Congress. An electoral law reform by the traffic light coalition is intended to change that.
Why is electoral reform needed at all?
The Bundestag is currently much larger than originally thought. Actually, according to Paragraph 1 of the Federal Elections Act, it should only consist of 598 parliamentarians. In addition to the 299 MPs directly elected with the first vote in their constituency, 299 more are to come into parliament via the state lists of their parties. In fact, the Bundestag currently has 736 members. Germany has the second largest parliament in the world, behind China’s National People’s Congress.
How is it that the Bundestag is so much larger than intended?
The difficulty is that the composition of the Bundestag is based on a complicated combination of proportional representation with a majority voting component. The second vote with which the respective party list is elected is decisive for the proportion of a party represented in the Bundestag. The priority is therefore proportional representation. A problem arises, however, when a party wins more direct mandates in a federal state than it is entitled to based on the result of the second vote. These additional seats are called overhang mandates.
So that these do not lead to a distortion of the will of the voters, there are balancing mandates for all other parties – due to the federal electoral system at state level. This means that direct mandates cannot be offset. This leads to the curious situation that the CDU can currently not only look forward to 12 overhang mandates, but also to 18 compensatory mandates. The ratio is 10 to 26 for the SPD and 1 to 13 for the AfD. There are currently 34 overhang mandates and 104 compensation mandates. In theory, there could be many more in future elections without electoral law reform. Therefore, all parties represented in the Bundestag agree that there must be a change here.
Why hasn’t there been a reform of the electoral law long ago that fundamentally solves the direct mandate problem?
The problem with overhang mandates is as old as the Federal Republic. They already existed in the first election in 1949 – back then there were two, one each for the CDU and the SPD. The fifty-fifty ideal, i.e. a Bundestag with a statutory target size, was limited to the elections from 1965 to 1976.
Otherwise, there were always overhang mandates – which, however, were not compensated for up to and including the 2009 federal election. The big parties always benefited from this: sometimes just the SPD (1980, 1983, 1998), sometimes just the CDU (1987, 1990), sometimes both (1994, 2002, 2005) and once the CDU and CSU (2009). Accordingly, neither the SPD nor the Union had any interest in changing this privilege.
However, the Federal Constitutional Court declared this procedure unconstitutional in 2012 as it violated “the principles of equality and immediacy of the election as well as equal opportunities for the parties”. Overhang mandates are “only acceptable to an extent that does not abolish the basic character of the election as a proportional representation”. For this reason, the Bundestag frantically passed an electoral law reform, on the basis of which overhang mandates for one party have been compensated for by compensatory mandates for all others since the 2013 federal election. Since then there has been a heated debate about how to stop the trend towards an ever larger parliament in accordance with the constitution. But the ideas of how this can succeed vary greatly, since it is also a question of power: Who benefits from it, at whose expense?
Which proposal is currently under discussion?
SPD, Greens and FDP have each other agreed on a bill, after which overhang and compensation mandates are to be completely eliminated in the future. Accordingly, only the second vote would be decisive for the number of mandates of a party, which should therefore be renamed the “main vote”. This would largely guarantee that the Bundestag would in fact consist of only 598 MPs in the future. Only in rare exceptional cases could Parliament be larger, and then only by a few seats. These exceptions would exist if a non-partisan individual candidate won a direct mandate (which was last the case in 1949) or if a party (like the PDS in 2002) missed the five percent hurdle but won one or two direct mandates.
What would change with the traffic light coalition law?
The proposal of the traffic light parties would not take advantage of any party, but it comes at the expense of personal choice, i.e. the majority voting component. Because the SPD, Greens and FDP are reversing the previous practice: If a party wins more constituencies with the first vote than it is actually entitled to in relation to the number of seats in parliament, then it will be deducted direct mandates accordingly. As a result, one MP would no longer necessarily be elected to the Bundestag from each constituency. The problem could be solved by increasing the total number of seats, for example to 650, i.e. there are more list places than direct mandates from the outset.
However, it is already the case that some constituencies are not represented in the Bundestag for the entire legislative period. Because unlike in countries with majority voting, such as Great Britain or the USA, there is no by-election if directly elected MPs resign. A current example of this is ex-Foreign Minister Heiko Maas, who resigned the direct mandate he had won in Saarlouis at the turn of the year and for whom 22-year-old Emily Vontz took over via the Saarland state list of the SPD. That this is the case makes the assertion by the Union that the electoral law reform introduced by the traffic light is “unconstitutional” appear at least doubtful.
Why does the traffic light bill enrage the CSU so much?
This has to do with the weakness of the CSU. Traditionally, the regional party in Bavaria gets almost all direct mandates. In earlier times, this coincided with the high domestic second vote results of up to 60 percent. But that is different today. In the 2021 federal election, the CSU directly won almost all constituencies in Bavaria (apart from one green exception), but only got 31.7 percent of the votes nationwide.
If the red-green-yellow electoral law reform had already existed, 45 CSU politicians would not have entered the Bundestag as directly elected MPs, but only 34. As many as the party would have been entitled to based on its second vote result. 11 candidates, on the other hand, would have had to give up their mandates – namely those with the worst constituency results. This makes CSU General Secretary Martin Huber rant Trumpistically, the traffic light operates “organized election fraud” and “lays the ax on our democratic foundation”.
What alternative solution to the problem does the Union faction propose?
So far, neither the CSU nor its sister party, the CDU, have presented their own draft law. But in the commission set up by the Bundestag to reform electoral law and modernize parliamentary work, the members of the Union faction proposed so-called trench electoral law – taking up an old idea of Konrad Adenauer’s that failed for good reason.
The introduction of trench electoral law would mean a decoupling of the first vote from the second vote: the 299 directly elected MPs, as before, would be faced with a further 299 MPs elected via the second vote, completely independently of this. At first glance, the result would be the same: As with the traffic light draft, the Bundestag would only have 598 MPs.
But a second look reveals the problem: trench electoral law can lead to a massive falsification of the will of the voters. Because in this model there would no longer be any offsetting of direct mandates. What this can lead to can be illustrated well using the example of the CSU: With the right to vote in the trenches, it would not only have received its 45 directly won mandates in the 2021 federal election without compensation, but also a further 16 via the second vote. She would have received 61 of a total of 92 Bavarian Bundestag seats – two thirds of the Bavarian mandates with a voting share of less than one third.
But not only the CSU, but also the CDU would benefit greatly from trench electoral law. So it’s no wonder that the Union would like it. In any case, unlike the model preferred by the traffic light, it would not correspond to the “basic character of the election as a proportional representation”.