The Rising Tide of Populism Raises Questions About the Invulnerability of Germany’s Democratic and Federal System

Jens Woelk

University of Trento

Last September, elections were held in three of the five eastern German Länder. As expected, two populist political parties dominated the scene, emerging much stronger: the extreme right-wing Alternative für Deutschland (AfD) and the new ‘Sahra Wagenknecht Alliance’ (Bündnis Sahra Wagenknecht - BSW), recently created by the dissidents from the extremist party of the Left (Die Linke), and centered around its charismatic leader (in fact, the first case in Germany of a party named after its leader).

In the face of the combined success of AfD and BSW, the presumed certainty that German democracy is invulnerable, protected by legal instruments, such as bans of political parties, against its subversion (militant democracy or ‘wehrhafte Demokratie’), has become fragile. The guarantees of the democratic system may not be immune at the state level; indeed, there is a debate on how to protect them (see, for example, the “Thüringen Projekt” on Verfassungsblog). While it may be already too late for some of the proposed measures, there is a general concern about introducing general procedural safeguards in a concrete situation and vis-à-vis specific adversaries. This may well backfire, not least as it nurtures the anti-elite and conspiracy theories of the populist parties. The federal system, based upon cooperation, may aggravate the problems with the populist advance.

The elections on 1 September in Thuringia and Saxony came a week after a triple murder in the western city of Solingen by a Syrian asylum seeker. This attack fueled a heated debate on immigration, making it the dominant topic and urging the federal government to take special measures such as border controls. The ultra-right party AfD won the regional elections in Thuringia for the first time, while it was engaged in a head-to-head with the Christian Democrats (CDU) in Saxony. The surprise was the result of the BSW: it immediately became the third force in both federal states. Overall, about 5 million people were called to vote (less than 8% of the German population), and the turnout was high: 73.6% in Thuringia and 74.4% in Saxony.

For the first time in post-war history, Thuringia saw a party - the AfD - classified by the internal intelligence service as right-wing extremist get the most votes, with 32.8%. The CDU obtained 23.6%, the BSW 15.8%, and Die Linke 13.1%. The three parties of the coalition in the federal government play no role in Thuringia: only the Social Democrats are represented in the parliament (with a mere 6.1%), while both the Greens and the Liberals of the FDP do not even come close to the threshold of 5%. In Saxony, as many as seven parties enter the state parliament and the CDU narrowly remains the strongest party, gaining 31.9% of the vote, ahead of the AfD (30.6%) and the BSW (11.8%), the Linke and the civic list (Freie Wähler). The Social Democrats (SPD) obtain only 7.3% of the vote, the Greens luckily enter with a mere 5.1%, while the FDP Liberals remain outside the parliament even in Saxony.

The leader of the AfD in Thuringia, Björn Höcke, one of the party’s most extreme figures, has twice been convicted by a German court for deliberately using Nazi rhetoric. Despite constant warnings from centrist leaders, institutions, and courts, the AfD has continued to rise (in the last federal elections, in 2021, it achieved 10.3%), especially in eastern Germany. Polls show that in the five Länder of the former GDR, voters, including the younger ones, are increasingly voting for it not out of protest, but out of sincere political conviction. Despite its success, the process of forming a government will prove difficult. The Christian Democrats want to appoint the premier in both Saxony and Thuringia. However, it remains unclear with whom they could collaborate to achieve this as all other parties reject any coalition with the AfD. Even with the BSW, which came third in both Länder, their positions remain far apart, especially on the issue of support for Ukraine, with the BSW calling for an end to it and openly supporting Putin's positions. Due to the increasingly fragmented political landscape in the East, the BSW will play a key role in forming coalition governments in both Saxony and Thuringia.

Three weeks later, on 22 September, the elections in Brandenburg - the Land surrounding the federal capital Berlin and where the SPD has historically been the strongest party and in government for 32 years - were also characterized by a strong polarization between the AfD and those who wanted to prevent it from gaining the majority of votes. With the turnout also high (72.9%), the incumbent Land President Dietmar Woidke (SPD) wins, rewarded by his strategy of focusing on the duel with the AfD and at the same time distancing himself from the SPD and the federal government. His SPD obtains 30.9% of the votes, followed by the AfD with 29.2%, while the Sahra Wagenknecht Alliance (BSW) is the third force with 13.5% - ahead of the CDU, which reaches 12.1%. The Greens, the Left Party, and the Liberals are all below the 5% threshold and are therefore not represented in the state parliament.

For Brandenburg and the SPD, this is a victory achieved at great cost: since the Greens failed to reach the 5% threshold and many CDU voters supported the SPD in the duel against the AfD, Woidke’s old coalition is no longer an option. Populist forces are now stronger than ever in Brandenburg: without BSW, Woidke’s SPD cannot govern. Moreover, the AfD - with which none of the other parties wants to form a coalition - has won more than a third of the seats in the state parliament, sufficient to potentially block all state parliamentary decisions and elections requiring a two-thirds majority, e.g. the election of constitutional judges.

The fact that the AfD has reached such a blocking minority in both Thuringia and Brandenburg increases its potential for negative influence. Not much is yet known about the BSW, but its votes will be decisive for the formation of governments in Thuringia and Brandenburg.

At the federal level, instability and political crisis may be looming: amidst growing voter discontent with Chancellor Olaf Scholz’s center-left federal government, the AfD becoming the strongest party in Thuringia and obtaining a strong second place in Saxony and Brandenburg has provoked a new turn of events in Berlin, one year before federal elections that could see Germany tilt to the right. A central problem is that it is generally not easy for centrist parties to tackle the growing mistrust towards them and the institutions that have fomented anti-establishment fervor in a wide swathe of the country. The current coalition at the federal level, between SPD, Greens, and FDP, is mainly known for its internal disputes and the disastrous results of the regional elections are creating the expectation of a strong reaction. The result in Brandenburg has only slightly eased the pressure. The liberals of the FDP, now represented in only 9 of the 16 Länder parliaments, could decide to leave the government coalition, thus opening a political crisis that would inevitably lead to early elections.

Germany’s federal system could soon become a problem, too, as it is intrinsically based on cooperation. Cooperation is required by its very structure, because of the Länder’s enforcement of federal and EU legislation. But cooperation is also a political requirement, because of the constitutional obligation to guarantee equivalent living conditions to be realized through a culture of cooperation and self-coordination. However, cooperation as a systemic requirement offers considerable potential for obstruction by those who do not want to make the system function. Populist coalition partners in some Länder governments could exploit it by exerting pressure in the Federal Council, where representatives of Länder governments need to approve approximately 40% of federal legislation (disagreement within a Land delegation usually leads to abstention, as votes must be cast as block votes). Intergovernmental relations may also be affected, in particular the sectoral minister conferences which decide unanimously and are thus prone to veto rights. And what can be done if one Land government does not implement federal or EU legislation? So far, there is only “federal execution”, but this is a ‘nuclear option’ (and thus has never been used), which is why one should rather think of other, less devastating sanctions which function as deterrents, such as withholding financial resources. The strength of Germany’s federal system, i.e. its cooperative culture, needs to be preserved, in order to keep it functioning well and efficiently. The current populist advance poses serious challenges, but the debate about a transformation into a more “militant federal system” (by analogy with “militant democracy”) has started. Instead of leaving them to an ordinary statute, key structural features of the Federal Constitutional Court shall be constitutionally enshrined. In addition, a replacement election mechanism is to be introduced in the event of a deadlock in the election of judges. These proposals, discussed on 10 October in the Federal Parliament, shall protect the Federal Constitutional Court against changes adopted with a simple majority. There is also a renewed debate on the prohibition of the AfD.

In mid-July, the federal government presented the ‘Equivalence Report 2024’ (Gleichwertigkeitsbericht), which documents the development of living conditions in Germany, at the urban and rural levels. Its results show above all that regional differences in living conditions have largely narrowed in recent years. The demoscopic survey also shows that the vast majority of people in Germany are fairly or even very satisfied with their lives. This seems to be in stark contrast to the political preferences expressed in the three elections in favor of populist parties, for which the migration crisis has led to a Germany on its knees.

Jens Woelk is a full professor of comparative constitutional law at the University of Trento (Italy), at the Faculty of Law and the interdisciplinary School of International Studies (“Euregio chair”). He also works at the Institute for Comparative Federalism (Eurac Research) in Bolzano/Bozen.

This blog is part of the blog symposium Federal Coalitions and Subnational Democracy hosted by the IACL Research Group on Constitutionalism and Societal Pluralism: Diversity Governance Compared.

Suggested citation: Jens Woelk, ‘The rising tide of populism raises questions about the invulnerability of Germany’s democratic and federal system’, IACL-AIDC Blog (7 November 2024) The rising tide of populism raises questions about the invulnerability of Germany’s democratic and federal system — IACL-IADC Blog