Hans Herbert von Arnim Institutionalized Political Unaccountability

Hans Herbert von Arnim Institutionalized Political Unaccountability

Hans Herbert von Arnim
Institutionalized Political Unaccountability and Political Corruption in Germany
In this paper I will describe a number of cases and incidents which clearly demonstrate that the German political system
cannot be understood without an appreciation of the dominant role played by what has become a self-interested political
class cartel. The system has developed an extraordinary vulnerability to corruption, influence-paddling, cronyism, and
the violation of democratic principles, the Constitutional Court has been of limited effectiveness in correcting this, and
the voters have been almost disempowered.[1] Many of my examples relate to political financing, because it has been
my experience that the characteristics of a community are almost always reflected in its finances.[2] As the saying goes:
“You must follow the money trail and you will find the truth.”[3] That applies especially to the topic of vanishing political
responsibility and mounting corruption. In this paper I do not intend a systematic approach, but will bring to light only
some aspects of the subject.[4] Let us first consider some examples of improper, legally non-prohibited political
activities, which I call "legally countenanced corruption."
1. Legally Countenanced Corruption
German parliamentarians have multiple privileges[5]. The law does not forbid the rich to pass an entire sack full of
money as a personal donation to a legislator; this need not be intended for political work and the campaign, but instead
may be for personal use. Such a payment is not even subject to the annual income tax; rather it falls under the usually
much lower gift tax.[6]
Big money has still other options under German law to transform economic power into political influence: legislators may
become the Chief Excutive Officers of lobbying organizations and nevertheless retain their parliamentary mandate.
They then receive two full salaries, one as a member of parliament and one as a lobbyist.[7] For example, the German
politician, Elmar Brok, is – as the Chairman of the Foreign Affairs Committee of the European Parliament – an influential
Christian Democratic Union Party (CDU) deputy and, at the same time, a highly paid chief executive of the Bertelsmann
Group. Reinhard Goehner is both a Member of the Bundestag (CDU) and Chief Executive Officer of the German
Employers Association. Also, former Chancellor Helmut Kohl, during the 1960s as chairman of the CDU-Faction of the
Rhineland-Palatinate legislature, was listed on the payroll of a federation of chemical industries.[8] And he went on like
that later on: Kohl and other former members of his government after they had lost the elections in 1998 received up to
600,000 Deutschmark p.a. each by the television tycoon Leo Kirch – a thank you for former media politics favourable to
Kirch?[9]
Also political parties may accept money from industry and elsewhere, in the form of so-called donations, in unlimited
amounts.[10] There is the example of the entrepreneur Ehlerding. In 1998, he donated 5.9 million Deutschmark[11] to
the CDU. At the same time, he received an extremely favorable government contract which was worth several billion
Marks. Coincidentally, it was the CDU Minister Wissmann who supported Ehlerding’s contract bid.[12]
In these “entirely legal” options which politicians keep open for themselves, one may find an answer to the often asked
question as to why the German politicians only half-heartedly fight corruption in the administration:[13] When the
politicians and the political parties can remain unpunished for accepting flagrant "donations", they lack the necessary
distance for determined action against the corruption of others. He who sits in a glass house will not throw stones.[14]
In the United States the Watergate-Scandal led to the establishment of a strict and binding ethical code for members of
Congress.[15] Up until now, the major political scandals in Germany (for instance the Flick-Scandal twenty years ago,
the CDU party contribution scandal which was uncovered in late 1999, the SPD scandal centered in Cologne and other
cities of North-Rhine-Westfalia in 2002[16] and the affair of the FDP politician Juergen Moellemann, which became
public in 2002[17]) unfortunately have had no significant consequences. The Federal Parliament judges itself, or even
declines to act at all. Half-hearted attempts to put a legal stop to political corruption were up until now always
wholeheartedly defeated – by the directly affected legislators or by legislators who could be affected in the future.
A Presidential Commission, which had been appointed by Federal President Johannes Rau in reaction to the CDUAffair, published its findings in July 2001. But the recommendations of this commission, headed by the President of the
Federal Accounting Office, Carola von Wedel (CDU), did not suggest action on any of the problems and issues raised
above,[18] neither did the amendment of the party law that was passed in 2002.[19]
The only legal requirement with practical relevance is that donations higher than 20,000 Deutschmark, now 10.000
Euro, given by any single donor in one year, must be published together with the name and address of the donor. So,
for instance, when it became public that Helmut Kohl did not reveal (and still will not reveal) the source of the almost 1
million dollars he received between 1992 and 1995, the CDU-Donation Scandal commenced. Kohl had to resign as the
honorary leader of the CDU. His party had its public subsidy reduced by an amount three times the undisclosed amount,
viz. a total of nearly 3 million dollars. Extraordinarily his justification for non-disclosure was that he had given his word of
honor to those donors that their identities would be kept secret.[20] That is an attitude perhaps more appropriate to the
Mafia.[21]
There were similar consequences in the matter of Wolfgang Schäuble, who had to resign as leader of the CDU/CSU
faction, after having received about 100,000 Deutschmark from the arms dealer Karlheinz Schreiber. This was passed
on to the party, but again was not disclosed.[22]
Between 1975 and 1980 Kohl also received about 515,000 Deutschmark from the entrepreneur Flick whose general
manager Eberhard von Brauchitsch described himself as "cultivating the Bonn landscape". The former Federal Minister
of Defense and Bavarian Prime Minister Franz Joseph Strauß (CSU) received more than 950,000 Deutschmark from
the same source between 1975 and 1979.[23] Whether the money was really passed to the parties as both claimed was
never proved.
2. Double and Triple Salaries from Public Funds
Cabinet Members, too, enjoy a privileged status. Minister Presidents, ministers and parliamentary state secretaries are
often paid three salaries out of the public purse. For example, Edmund Stoiber, the Minister President of Bavaria – one
of the 16 states of the Federal Republic of Germany – and leader of the Christian Social Party (CSU), the Bavarian
sister of the CDU, earns:[24]
x
as Minister President - an official salary of 165,317 Euro per year which is taxable,
x
as a member of the state legislature – 32,100 Euro per year which is 50% of the annual deputy salary and also
taxable,
x
a tax-free third annual income which is meant to compensate for expenditure which, however, is not and usually
cannot be incurred in reality; this income is in brutto about 74,167 Euro per year.
Of the 182 members of the federal and the 16 state governments, 97 are contemporaneously members of parliament.
Many of them receive a considerable additional salary from their mandate.[25] Only in Hamburg and Bremen (as in
some other continental systems – see Austria, Belgium, France, the Netherlands and Switzerland) do the constitutions
forbid the holding of both positions at the same time. The Greens' official platform also adhered to this principle until in
1998 they entered a coalition with Gerhard Schroeder's SPD and formed the Federal Government. Green Ministers
Joschka Fischer and Jürgen Trittin then decided they wanted to retain both roles and forced their party assembly to
abandon this principle, ostensibly for the time being.
3. Disproportionately High Pensions for Politicians
Another example for the privileges of politicians is their pension scheme. Former cabinet members and deputies will
enjoy high pensions, without ever having contributed a single Deutsch Mark of their own money, when they are no
longer in public office. These benefits are not only very much higher than those of the average citizen, but also
accumulate after shorter periods of service and provide a pension entitlement at an earlier retirement age. Let me here
provide you with just two examples of the manner in which German politicians show their contempt for their constituents'
electoral impotence and flaunt their immunity from electoral sanctions:
x
In North-Rhine-Westphalia two ministers of the Green Party, Michael Vesper and Baerbel Hoehn, are entitled
after four years in office to a monthly pension of 7,591 Euro payable thirteen times per year. This pension is
based upon 63 percent of their full salary. They had previously, while in opposition and therefore not entitled to
benefit, criticized this law.[26]
x
In the Saar it was possible to get the maximum pension (75 percent of full salary) after only one day's service in
government, until a public outcry forced a retreat and rescission.[27] The procedure by which this became law
was typical of a cartel amongst government and opposition parties. There was no public debate whatsoever in
parliament, and the opposition's silence was assuaged by large additional payments to the parliamentary
groups of these parties.
I should add that it is not uncommon for politicians to collect two government pensions: one pension from an earlier
cabinet position and another pension from either a concurrent or subsequent parliamentary mandate.[28]
4. State Deputies: Increasing Salaries for Decreasing Responsibilities
Members of the state legislatures constitute a special case. A remarkable divide has opened between their
responsibilities and salaries. On the one hand, the competencies of state legislatures have declined dramatically over
the years as a result of institutional changes.[29] On the other hand, the state deputies’ salaries and pension benefits
have markedly increased. Even the fifty members of the state legislature in the Saar, a small State of some one million
citizens, enjoy salaries which most American state legislators (and also the deputies of the Federal Parliament of
Switzerland) can not aspire to. This is despite the fact that the latter exercise incomparably more competencies than
their German counterparts.
The generous salaries and pension benefits of German state deputies have increasingly degenerated into an expensive
consolation prize for the withdrawal of political tasks, functions and responsibility. At the same time, however, a full
salary – despite decreasing parliamentary functions – enables many state deputies to be active – day to day – as
publicly financed political party workers; they can mesh and fasten the threads of internal party politics which
guarantees their renewed nomination and, hence, their re-election to the state legislature.[30]
5. Invasion of Legislatures by Civil Servants
A major problem is the intertwining of the legislative and administrative branches of government in terms of personnel:
almost half of the some 2,800 German deputies of the Federal Parliament, the 16 state legislatures and the European
Parliament come from the civil service. Many of these German civil servants are teachers. At the end of their
parliamentary mandate they are legally granted the right of return to a civil service position. In states such as BadenWürttemberg many deputies are simultaneously active as civil servants, collecting salaries from both positions.
Such an invasion of civil servants into German legislatures has been criticized by the Federal Constitutional Court from
the perspective of the constitutional doctrine of the separation of powers[31] – but to no apparent effect. In a nation
where even the top executives of government, the minister presidents and ministers, hold positions as deputies and
derive supplementary income from this fusion of roles, one may not expect great understanding of this classical
principle.
Originally, the German Constitution was to follow the Anglo-Saxon model and place a ban on the eligibility of civil
servants and judges for election to parliament. However, such a proposal did not find favor with the drafters of the
Constitution, the Parliamentary Council, 60 percent of whose members were themselves civil servants.
How can parliaments dominated by civil servants be expected to attain the necessary impartiality to reform,
fundamentally, the civil service; or teacher-parliaments to reform the school system, no matter how necessary such
changes may be in Germany, as international comparative performance studies have shown?
6. How the Political Parties Help Themselves to the Taxpayers’Money
The political parties are dependents of the government. Even though the parties garner high sums of money through the
fees of their ca. two million members, in addition to the previously mentioned private and corporate donations, they are
also subsidized through public funds in three ways:
x
directly through public grants-in-aid presently amounting to 133 Mio. Euro annually,
x
indirectly through high tax advantages for membership fees and contributions, and
x
through transfers of parts of the salaries of deputies, cabinet members and other office-holders (so called party
taxes) whose salaries are, therefore, fixed at a higher level from the outset.
Hence it is possible for a married individual to donate up to 6,600 Euro to a political party and thereby enjoy personal
tax benefits;[32] the taxpayers finance about one-half of these contributions.[33]
“Party-taxes” are viewed by almost all commentators on the Constitution as unconstitutional because they violate the
prohibition against indirect governmental party financing, and the principle of a free mandate.[34] Nevertheless, the
political parties receive a double subsidy even on this form of contribution. The state relieves the office-holder of onehalf of the financial burden through tax benefits, and the party receives a 38 percent extra grant on the donation. Here
one can witness that unconstitutional transfers in terms of “party taxes” are given a twofold bonus by the state.[35]
All in all, the political parties receive about two-thirds of their income directly or indirectly from the public purse.[36] But
that isn’t all: there are high government payments to the parliamentary factions, the staff of deputies etc. These
institutions are financed almost entirely with public funds. The political “foundations” of the parties, a highly misleading
expression for these institutions, receive about 272 million dollars per year.
7. Channelling of Public Funds to Political Parties via Support Organizations
The German political parties have always been most innovative when providing for themselves out of the public purse.
The introduction of their subsidization in 1959 was a European 'first' and would almost have become a world 'first' if
Argentina and Puerto Rico had not already introduced state financial support of their political parties. The fathers of the
German Constitution would not have intended such financing.[37] However, the political parties made Gerhard Leibholz
a justice on the Federal Constitutional Court and in 1958 he rendered a case decision which included a one-sentence
dictum providing the legal rationale for state financing of the political parties.[38] Now the political parties in the Federal
Parliament were no longer restrained: in 1959, they appropriated 5 million Deutschmark for themselves, a few years
later 38 million Deutschmark per year, and in the mid-1960s an annual increase to almost 90 million Deutschmark was
planned.[39] At that time the Federal Constitutional Court had to apply the emergency brake to set restrictions on
political party financing.[40] However, the political parties were able to circumvent the Court by diverting the public
funding sources to their political support organizations. The political foundations and the party factions in the federal
and state parliaments were inundated with public funds[41] (an approximately forty-fold increase in subsidies over the
past 30 years). During the same period part-time deputies evolved into fully paid political party workers, and, in addition
to that, they were supplied with substantial funds for their staff who frequently worked for the parties too.
The public financing of political parties was originally justified by the argument that it would thereby be possible to
prohibit large donations which always create – as the German Political Scientist Theodor Eschenburg put it – “an
atmosphere of corruption”. But this argument was later “forgotten”. In reality, the Federal Republic has now both evils:
large tax-subsidized donations to, and excessively high public financing of, political parties.[42]
8. Controls by the Federal Constitutional Court?
Many of the provisions mentioned above violate the Federal Constitution. However, without a decision from the
competent court, the responsible political actors brazenly maintain the opposite position. The Federal Constitutional
Court – as is the general rule with courts – must not commence legal proceedings on its own initiative but only upon a
petition. Standing in court usually is confined to political parties, the government and members of parliament, in other
words, to the beneficiaries of the present system. In contrast, citizens and taxpayers who have to accept the
consequences of the system in most cases cannot challenge in court the public financing of political parties, deputies
and ministers. This leads to a paradoxical result: Those who have standing in court do not make use of it because of
their personal interests, and those who would like to bring suit have no standing. Thus, the actors who are responsible
for wrong-doings cannot be held responsible before the court.
An example of this can be found in the tax free allowances which are paid automatically to politicians and which are
constitutional only if they are related to the expenses which usually occur. There is clear evidence that, for example, the
expense allowance of 42,036 Euro p.a. Members of the Bundestag receive does not square with these principles. A
salesman who usually had many travel expenses went to the Constitutional Court claiming he should be treated on the
same basis as parliamentarians (on the principle of equality). But the court declined to decide the matter, denying
standing to the petitioner. However, it did indicate in an obiter dictum that parliamentary allowances were
unconstitutional.[43]
This is even more true in the case of persons who are contemporaneously both members of government and of
parliament. Here the situation is even more stark. Their allowances are often very high and their expenses much lower
than those of mere parliamentarians, because they enjoy, inter alia, additional taxpayer funding of their staffing and
transport requirements. This is so with most members of the Federal Government (e.g. Joschka Fischer and Juergen
Trittin to whom I referred above), and of the Bavarian Government (e.g. Edmund Stoiber – also mentioned earlier).
Though usually there are some restrictions on who can go to court, in Germany the access is particularly limited. The
judicial immunization of the political process is rooted in history. Until the end of World War I, the organization of the
German state and the realization of the public welfare were the sole responsibility of the monarch who derived his
authority from the Grace of God, not from the people. The citizen was responsible for his direct self-interest only and
could, therefore, go to court only where his personal interests were impaired. And so it has remained. Something like a
“class action” does not exist under German law.
But if a competent party does go to court the proceedings are often very protracted. Some questions as to the
payments of parliamentarians brought to court by the Greens of Thueringen in 1991 were not decided until July 2000
[44] – and in such a vague and dubious way that parliaments disregarded the judgement.[45]
By failing to declare a malfeasance unconstitutional, the Constitutional Court b often gives politicians the scope to
pretend that all was normal, and so removed public pressure for change, thus further weakening public control.
Sometimes, when the intended actions clearly violate existing Constitutional Court Rulings the parliamentarians have
resorted to an attempt to amend the Constitution. This happened in 1995 when the Bundestag passed an amendment
which tied the salaries of the Members of the Bundestag to those of the Judges of the Federal Courts; that meant a
considerable increase coupled with indexation. As the Constitutional Court had found such an indexation
unconstitutional in a similar case in 1975[46] the political class sought to achieve its ends by amending Article 48 of the
Constitution which deals with the status of the Bundestag Members; while they were about it they added some further
privileges. But they hid the real content of the draft, and there was a public outcry[47] when the true meaning was
disclosed by an opinion of mine which was published at a press conference of the Taxpayers Association.[48] Eighty-six
public law professors then sent a protest to the Federal Council which finally vetoed the amendment.
As so often in Germany, the resort to the court of public opinion provided the only available remedy even though it was
at least arguable that the amendment was unconstitutional as being in breach of the "eternity clause" of the
Constitution.[49] However, once again, there probably would not have been a competent party with status willing to
argue the matter.
9. Political Favoritism
A problem which is widely discussed only in recent times is the political favoritism which influences the distribution of
public offices by the political parties.[50] Parties seek to exert influence in areas which are not their concern. They
attempt to infiltrate party faithful into all possible watchdog and influential institutions and positions:
x
appellate courts, especially the constitutional courts,
x
top officials of the government accounting offices,
x
important positions in the public radio and television networks,
x
positions in the entire civil service, sometimes down to the doorman
x
management positions in public enterprises,
x
top positions in schools and gradually also in universities,
x
expert commissions providing technical advice for the policy-making process.[51]
For example, the following practice has evolved for the selection of the sixteen Justices (of the two chambers) of the
Federal Constitutional Court: half of the Justices are determined by the CDU/CSU Party, the other half by the SPD; the
governing party in turn permits its smaller coalition partner to designate one of its allotted appointments. Usually, six
Justices are party members of the Christian Democratic Union, six are party members of the Social Democratic Party.
Four are ‘closely’ identified with one or the other of the two major parties. The entire selection process is
unconstitutional.[52] This is also true because – contrary to the Constitution – it is not the plenary of the Federal
Parliament which decides on the appointment of justices but a parliamentary committee behind closed doors.[53]
The top positions at the seventeen Federal and State General Accounting Offices are similarly politicized: the President
regularly is a member of one of the major political parties and the Vice-President is a member of the other major party.
In 1987 the Kohl-Government was formally asked in Parliament what measures it would take against the increasing
practice of favoritism. It's brazen answer was, that there was no such thing in Germany.[54] By way of contrast one
should recall the statement of Kohl on an earlier occasion when he was merely leader of the opposition: in 1982 he had
characterized favoritism as becoming entirely unbearable.[55] And the situation has deteriorated since.[56]
Political favoritism in the distribution of public offices and the dominance of civil servants in German parliaments
reinforce each other. The increasing importance of political party membership for a career in the civil service prompts
more and more civil servants to join a political party. Civil servants, especially teachers, have particularly good chances
of being nominated for a parliamentary mandate. This is so not only because of any specific professional attributes, but
also due to the substantial time they have available for political activities. The usual practice in Germany is for teachers
to conduct classes in the mornings only. I will return later to these points. This context not only explains the dominance
of civil servants in parliament but also the increase of political favoritism.
10. On the Road to “Cartel Parties” and a “Spoils System” ?
The politicization of the courts, the civil service and other institutions – which are intended to be neutral in terms of party
politics – runs counter to the imperatives of the democratic system (see Joseph Alois Schumpeter, the father of the
concept of political competition[57]). Such politicization has the result that political identification frequently replaces
professional competence. This practice, which is typical of a “party state”, undermines the principle of the separation of
powers. It is clearly unconstitutional (Art. 3, 33 Basic Law). If the established political parties are in agreement that
public offices and money should be divided amongst them and thereby that the state should be plundered, political
competition can no longer fulfil its control functions, and it also fails to create political responsibility. Consequently,
political cartels emerge which have led political scientists such as Richard Katz and Peter Mair to use the term “cartel
parties”.[58] The Federal Republic of Germany (with its extended public funding of parties and its widespread political
favouritism) is one of their prime examples of a cartel party system.
When the concept of corruption is defined as the use of public power for private or personal gain in contravention of law,
ethics or simply common decency,[59] then the previously described exploitation of the body politic must be labelled as
corruption.[60]
By focusing on the features of the German political party system presented here, one can ask if Germany is on its way
to a political “spoils system” as existed in the United States at the turn of the 19th to the 20th Century. This period was
followed by the political reform efforts of the Progressive Era which succeeded in eliminating the most excessive abuses
of political power.[61]
The central institutional problem is the fact that the political class decides on the regulations from which it benefits, and
that it has the means to disarm existing control mechanisms. In the USA abuses of a legislature which decides its own
affairs were dealt with by a provision in the Constitution (the 27th Amendment - 1992). It stipulates that new regulations
changing the financial status of Members of Congress will not become effective before the next Congressional term.
The provision is based on the timeless insight of James Madison: that it appears unseemly if any group takes, in an
uncontrolled manner, money out of the public purse and puts it into its own pockets. Similar regulations are missing in
Germany, although a commission (of which I was a member and which was appointed in 1992 by the then Federal
President Richard von Weizsaecker) had suggested the implementation of the American system.[62]
11. Prerequisites of “Responsible Party Government”
The described problems are, generally speaking, expressions of missing political responsibility and control. We know
two models to ensure political responsibility within a representative democracy. In the model of “responsible party
government” the citizens choose between various parties. Governments with which they are dissatisfied are voted out of
office. This is how the so-called democratic minimum also has its say within a democracy. Karl Raimund Popper found a
definition for this case: the population must have the opportunity to get rid of a poor government without having to shed
blood.[63]
However, this system, which succeeds for example in the United Kingdom, fails within the Federal Republic of
Germany.[64] In fact it fails not only when it comes to the regulations concerning “political financing”, corruption, and
patronage, but also when it has to deal with "normal" matters.
In Germany, as in some other countries,[65] governments exist only with coalitions involving two or more parties – a
consequence of the system of proportional representation. Therefore, a government normally is not directly changed by
the votes but instead by a new coalition which often cannot be anticipated by the citizens. While this is not unique to
Germany it further diminishes the accountability of parties and the role of the voter. So for example the FDP supported
Chancellor Konrad Adenauer (CDU) in the Fifties and Sixties, SPD-Chancellors Willy Brandt (1969-1974) and Helmut
Schmidt (1974-1982) and CDU-Chancellor Helmut Kohl (1982-1998). Only 1998 the change in government was not
caused by a new coalition preference of the FDP but by the federal election who brought the former opposition to power
(SPD-Chancellor Gerhard Schröder and Foreign Minister Joschka Fischer of the Greens). The FDP had explicitly
refrained from naming a prospective coalition partner in order to keep all options open to itself.
However, there is also the Federal Council which has to agree on all important federal statutes even though the Federal
Council is most often in the hands of the opposition. Originally only 10 percent of the federal laws had to be approved of
by the Federal Council, today it is about 60 percent. As a consequence the question arises as to who is politically
responsible for the laws which are implemented; is it the government or the Federal Council?
In addition to this there is also a Mediation Committee which usually becomes involved when the Federal Parliament
and the Federal Council disagree. These mediations always take place in camera so that the public does not know what
is being discussed. In this case, it is even more impossible for the citizen to ascribe the responsibility for a statute to one
or another party, or even to the Government or the opposition. If both government and opposition have been involved in
measures which the citizen does not approve whom should he or she now vote for or vote out of office? The political
responsibility obviously vanishes.
The German Federal Council is unique in itself: it is not inducted by elections through the populations of the states or
the state parliaments but consists of the state governments themselves. This strange concept, which does not exist in
any other current western federal democracy, goes back to the intervention of the state governments. The state
governments and minister presidents already existed before the Federal Republic of Germany was founded. They
exercised massive influence on the drafting of the Constitution while pursuing their interests at the same time. In this,
they were supported by the inertia of traditional institutions. The Federal Council resembles its predecessor in the
Bismarck empire of 1871 which was also composed of the then still monarchical state governments.
The German Minister-Presidents, who are occasionally called "state monarchs", have steadily increased their power.
This happened through a well known mechanism of negotiations at the charge of third parties: the federal state
throughout the years gained more and more legislative competences, which increased his power. The MinisterPresidents voted in favour of the constitutional amendment under the condition that the Bundesrat would obtain a right
of veto in the corresponding legislative process and therewith acquired status on the federal level. All of that was at the
charge of state parliaments who lost influence and of the citizens who no longer see through.
In addition to that, legislative competencies, by and large, lie with the Federal Government (and increasingly with the
European Union) while the competencies for the implementation of statutes rest with state and local governments. This
entails – as the political scientist Thomas Ellwein characterized it – “a marshalling yard for parliamentary
responsibilities”.
The fiscal sections of the Constitution obscure political responsibility even further: the Federal Government can impose
additional expenditures on the state governments without having to contribute to the costs. Furthermore, redistribution
of income between the federal, state and local governments is predominantly not dependent on success. “States
whose parliaments and governments are managing intelligently, efficiently and successfully are being punished; states
which have manoeuvred themselves on the brink of bankruptcy are being favored” (former Chancellor Helmut Schmidt
[66]).
Important “shared projects” are co-financed by the Federal Government, the states, local governments and the
European Union. This easily encourages the respective levels of government to spend money merely because funds
from a higher governmental level are available. But most of all, political actions cannot be ascribed to anyone. The
citizen yet again is unable to recognize who bears the political responsibility.
At the level of state politics, the dissipation of responsibilities is even greater where the states still retain competencies
of their own. The reason for this is that the 16 states have begun to coordinate their policies through interstate
committees and bodies where all states and often the Federal Government are represented (e.g. the Ministerial
Conference for Cultural Affairs). There are close to one thousand coordination bodies of this kind which are used by
representatives of the state governments and other state authorities to discuss and negotiate legislative and
administrative measures. The results of these negotiations are factually binding on the state governments. The state
parliaments are being deprived of power to an even greater extent. The parliamentary majority does not want to
disavow its own government which adheres to the agreements. The opposition mostly lacks the necessary information
to raise well-founded criticism in public. Its position is weakened even further because representatives of their party who
are in government in other states have approved of the measure.
This kind of political entanglement leads to a situation where at the end no-one knows at all who is responsible for which
decision.[67] The voter is no longer in a position to judge good and bad policies – the way the democratic system
intends – by casting a vote. Instead we have a situation of organized irresponsibility. Its trademarks are “creditclaiming“
and “scapegoating“. Everybody claims credit for successes; failures on the other hand are always the responsibility of
the opposing party. This is not a special feature of politics. As the saying goes: "success has many fathers, but failures
are orphans". The problematic and worrying fact is that the political class, thanks to its key position at the levers of the
constitution- and law-making process, has altered the institutions according to its personal interests while blocking
necessary reforms. This has only reinforced this human weakness.[68] The institutions are so perverted that those
responsible for political accomplishments and political failures can no longer be identified. Everyone is participating. But
where everyone is responsible, obviously no-one is. Citizens and voters are left completely disoriented.
In common with most political systems the major parties have adopted largely the same policies in their quest for the
(old or new) middle ground. Furthermore the parties avoid declaring openly before elections which policies they intend
implementing; sometimes they do not know themselves. The government frequently makes promises it can not possibly
keep. The opposition often voices criticisms only in order to hurt the government but not because it would do things
differently if it had the majority. However, in Germany these problems take on greater dimensions because the
electorate usually lacks power to sanction parties for non-performance.
While criticism of this sort was regarded as politically non-correct for a long time,[69] in the last three or four years there
happened a sort of a sudden change in the public perspective: Now the lack of political accountability that results of
German federalism is generally complained of in the media by politicians of all parties,[70] by commissions[71] and
scientists.[72]
12. Preconditions for the “Responsible Persons' Government"
Now, if it has become increasingly difficult for the voter to distinguish between the different parties and to hold them
accountable for specific political decisions the real question ought to be which persons should be elected to parliament.
This leads to the second model of representative democracy: “the responsible persons' government“. Here it is less
important to know what the party stands for than who stands for election.
In reality, however, the German voter often has no real choice as to which individuals should represent him in
parliament. Many members of parliament are "elected" solely because they occupy a secure position on the party list
which they owe to their nomination by their party. The great majority of the representatives can be sure of their seats in
parliament long before the election takes place.[73] Consequently the word "election" misdescribes the process. This is
fundamentally different from election systems where the parliamentary seat goes to the candidate who, after
preselection by constituents, wins the majority of votes at the subsequent election. In Germany it is true you also cast
your first vote for a specific candidate from your election district. But the voter has no say in the nomination of
candidates, most of whom appear as well on the party list; even if they lose the direct run-off, they nevertheless will gain
a seat in parliament. By way of example, the 1998 Federal Parliament election in Ludwigshafen highlighted a run-off
between Helmut Kohl (CDU) and Doris Barnett (SPD). Since both candidates were also nominated in "safe" positions
on the party list it meant that even the loser – in this case Helmut Kohl – would enter the Federal Parliament. The whole
campaign was nothing but a theatrical exercise to deceive the voter into thinking he had a choice.[74] Another example:
In the 2002 election in Montabaur, a town in Rhineland-Palatinate the former Federal Minister of Defense Rudolf
Scharping (SPD) and Joachim Hörster (CDU) struggled for the mandate. Both of them – because of their top positions
on the party lists in Rhineland-Palatinate – could already be sure of being elected to the Bundestag. In fact, Rudolf
Scharping lost his constituency – probably because of too many bricks dropped and the Hunzinger Affair – but was
safely elected to the Bundestag through the party list.
Small parties such as the FDP or the "Greens" usually have no chance to win a direct run-off. All 47 members of
parliament belonging to the FDP and 54 of the 55 members of parliament belonging to the Greens secured their seats in
2002 by way of their party lists. This observation is crucial because, with one exception, in the 54 year history of the
Federal Republic it has been one of these small parties which decided who was to form the government and who should
become chancellor.[75]
The situation is even worse with the elections of the 99 German members of the European Parliament. Because all are
on rigid lists, almost 90 percent of them are virtually elected once they are nominated by their party. The voter here, as
is the case also in federal elections, has no influence at all on the composition of the list.
These "make-believe" elections, coupled with the monopoly parties enjoy as to who is nominated, prove that the parties
decide alone, and usually irreversibly, who becomes a member of parliament and therefore an active politician. But
whom do the parties nominate for secure list positions and candidacies in supportive election districts? This is where the
so-called Ochsentour plays a central role: Regional branches of the respective parties decide to whom the best
positions go. Before granting such a position they expect years of demanding, very time-consuming activities for the
party: first as campaign volunteers, then as active members of the local party leadership and local government councils
– on average this lasts sixteen years.[76] However, this is only possible for people with ample free time, such as civil
servants (especially teachers) and above all, people who do not have to relocate.[77] Free time and immobility are not
necessarily positive attributes.
While the voter decides the number of seats each party will have in parliament, he usually has little say who will occupy
them. Even the questions of who forms the government and who becomes chancellor (in the states: minister president)
often are not decided by the voters. For, as noted earlier in another context, this usually depends on coalition
agreements which tend to be made after elections.
The conclusion to draw is rather devastating: Democracy in Germany to some extent is merely a nice illusion. In spite of
the many campaigns for the Federal Parliament, the sixteen state parliaments, and the ca. 15,000 local governments,
the citizens do not really have any voice. The political class occupies all the strategic positions and deals within itself.
The political responsibilities of the parties and of the incumbents have become largely non-existent.[78]
13. The Trust-Approach
Theoretically there is another way to secure the common good. This would be based on the constitutionally imposed
fiduciary relationship between representatives and citizens. The concept depends upon representatives, who, driven by
and responsible to their conscience and their constitutional duty, try to act in the public interest, whether political
competition is functioning or not. But such an approach would not really advance matters. Apart from the fact that it is
not very democratic, as it is similar to the enlightened absolutist principle of Frederick the Great of Prussia ("I am the
first servant of my country"), this approach fails in practice: experience proves that in case of conflict between common
interests and the self-interests of the political class, the latter usually prevail.[79]
Kohl showed with his so-called "System Kohl" that the quests for power, influence, position and money were dominant
motives and that he was of the impression that inconvenient laws could be disregarded. But Kohl and his party are not
the only exponents of this system, perfected during his 25 years as party leader, the last 16 of which were as
Chancellor. Many successful professional politicians of other parties had to adopt the same tactics. So we now have in
fact a complete "secondary system" under the official constitutional system.[80] The greatest cause for concern is that
the political class has gradually moulded the system to conform to its interests, so reducing the system's susceptibility to
reform and its ability to cope with new challenges. That produces a considerable competitive disadvantage in
comparison to other countries which successfully implemented necessary reforms and in my view is one important
cause of the "German disease".
14. What Can be Done?
Ultimately the question remains whether this development is "God-given" or whether we can do anything about it. In
reality this situation is, of course, essentially the work of man: the present institutional and legal conditions, as has been
shown, serve the interests of the political class. It is my considered opinion that activating the common sense of the
people is the only effective counterweight available.
This can be achieved in various ways. One way is the forming of a new party whose platform squarely raises issues
disregarded by the political establishment despite strong wishes of the voters. A recent example of this occurred in the
Hamburg election of September 2001 where an entirely new party was formed with practically a sole raison d'être – the
securing of law and order – and won almost 20 percent of the vote. Hamburg had the highest crime rate of any German
city and the established political parties were ineffectual in dealing with the problem. But forming a new party as in a city
state such as Hamburg is a very different proposition from an attempt to do the same in other states or at the federal
level, not least because of the very high legal and practical barriers erected by the political class.
Another way is the strengthening of initiative, referendum, and the introduction of direct elections. This was one of the
remedies used in the United States during the “Progressive Era” to remove the predominant position of the party bosses
and their machines.[81] Such a reform strategy requires, for instance, changes of electoral law.[82] In this respect,
however, no realistic hope for reform can be based on actions of parliaments alone. Something like that must rather be
achieved by means of initiatives and by referenda. These already exist in the Federal Republic at the levels of local
governments and all sixteen state governments. So initiatives and referenda could be used to change both the
constitutive elements of the system itself and the laws made under them.
The only real institutional reform in Germany in the last decade was brought about either directly by initiatives and
referenda or indirectly by subsequent parliamentary action forced by credibly announced initiatives; I refer to the reform
of the municipal constitutions.[83] Now in nearly all German states the mayors are no longer elected by the legislatures,
but directly by the local people,[84] who are also entitled to local initiatives and local referenda. Further, in local
government elections voters in most states are no longer restricted to rigid party lists, but may give their votes to their
preferred candidates.[85] The reform was started in 1991 by a referendum in the State of Hesse, where 82 percent of
those voting voted for the introduction of direct election of mayors and chiefs of the counties. In 1995 in Bavaria a state
initiative and subsequent referendum introduced local government initiatives and referenda in this state. The whole
political class then realized the potential power of direct lawmaking by the people or what one might call voter
legislation. Consequently, in several other states,[86] one had only to threaten an initiative to send even hesitant state
parliaments running.[87] The reform of the municipal constitutions could also become a model for reforming the
constitution of the states.[88]
Acknowledgements
My Speyer colleague Eberhard Bohne commented on an earlier draft, Dr. Brenda Bohne translated it into English and
Anthony Croft gave me his valuable advice. – The titles of cited German publications and quotations of German authors
have also been translated into English.
Endnotes
[1] On the other hand it must not be ignored, that there are many problems in other western democracies as well (see
e.g. Joseph S. Nye, Jr./Philip D. Zelikow/David C. King [eds.], Why People Don't Trust Government, Harvard Press,
Cambridge, Mass./London 1997; Susan J. Pharr/Robert D. Putnam [eds.], Disaffected Democracies, Princeton
University Press, Princeton 2000). But that doesn't excuse solvable deficiencies in the Federal Republic of Germany.
[2] The symptomatic as well as the causal relevance of finances for political events has constantly been stressed by
Joseph A. Schumpeter. As an example see his article in: Die Krise des Steuerstaates (The Crisis of the Tax State), in:
Goldscheid/Schumpeter [eds.], Die Finanzkrise des Steuerstaates (The Financial Crisis of the Tax State), 1917,
reedited by R. Hickel, 1976, 329 (332).
[3] Russell L. Cope, Legislative Studies, vol. 9 No. 2 (Autumn 1995), 80 (81).
[4] For a systematic approach see my books mentioned in the following footnotes.
[5] A member of the lower house of parliament, i.e., Bundestag, may at the same time pursue almost any occupation
and thus legally collect a second salary. That was necessary when the mandate was honorary and there was a small
expense allowance. This was the case even in the Bundestag, during the 1950s. However, today this is a "full-time job"
and the pay is a "Vollalimentation".
[6] Christine Landfried, Parteifinanzen und politische Macht (Party Finance and Political Power), Nomos, Baden-Baden
1990, 143 ff.; Hans Herbert von Arnim, Die Partei, der Abgeordnete und das Geld. Parteienfinanzierung in Deutschland
(The Party, the Representatives and Money. Party Financing in Germany), 2nd ed., Knaur, München 1996, 293 ff. –
Regrettably I have to refer to my own publications more often than I would like due to the fact that it was a publication of
mine which often brought about public and academic appreciation of the problems and on occasion produced
subsequent remedial legislative action.
[7] The Federal Constitutional Court in 1975 directed the legislature to institute legal measures against those abuses
(Amtliche Sammlung der Entscheidungen des Bundesverfassungsgerichts, Band 40, Seiten 296 ff. [318 f.] = BVerfGE
40, 296 [318 f.] – 1975). But now, 28 years later, this has still not been done. See Hans Herbert von Arnim, Das Verbot
von Interessentenzahlungen an Abgeordnete (The Prohibition of Payments by Interest Groups to Parliamentarians),
Wiesbaden 1976.
[8] Hans Herbert von Arnim, Diener vieler Herren. Die Doppel- und Dreifachversorgung von Politikern (Servants of Many
Masters. The Double and Triple Benefits of Politicians), Knaur, München 1998, 39 ff.
[9] Der Spiegel of 14.4.2003, p. 152 f., and of 19.4.2003, p. 128 ff.; Hans Leyendecker, Die Korruptionsfalle (The
Corruption Trap), Rowohlt, Reinbeck 2003, 75 ff.
[10] Rolf Ebbighausen (and co-authors), Die Kosten der Parteien- demokratie (The Costs of the Party Democracy),
Westdeutscher Verlag, Opladen 1996, 81 ff.
[11] One Deutsch Mark equals 0.5113 Euro. Euro are converted to US-Dollars at the rate of 1.17240 (7.10.2003).
[12] Hans Herbert von Arnim, Das System. Die Machenschaften der Macht (The System. The Manipulations of Power),
Droemer, München 2001, 88 ff. Also see: Beschlussempfehlung und Bericht des Untersuchungs- ausschusses
"Parteispenden", Bundestagsdrucksache 14/9300, 216.
[13] So for example Hans-Ludwig Zachert, Korruptes Deutschland? (Corrupt Germany?), Frankfurter Allgemeine
Zeitung, July 30, 2001. Zachert is the former President of the German Bundeskriminalamt (Federal Investigation Office).
[14] Hans Herbert von Arnim, Bestechung leichtgemacht (Bribery Made Easy), Frankfurter Allgemeine Zeitung, August
6, 2001 (letter to the editor).
[15] Andrea Martel, Vom guten Parlamentarier. Eine Studie der Ethikregeln im US-Kongress (About the Good
Parliamentarian. A Study on the Ethic Code of the US Congress), 2001.
[16] Leyendecker, op.cit., 19 ff., 207 ff.
[17] Leyendecker, op.cit., 97 ff.
[18] Bericht der Kommission unabhängiger Sachverständiger zu Fragen der Parteienfinanzierung (Report of the
Commission of Independent Experts on Questions of Party Financing), in: Deutscher Bundestag, Drucksache 14/6710
vom 19.7.2001.
[19] "Achtes Gesetz zur Änderung des Parteiengesetzes" vom 28.6.2002, BGBl. p. 2268. See the comments of Hans
Herbert von Arnim, Die neue Parteienfinanzierung (The New Party Financing), Deutsches Verwaltungsblatt 2002, 1065
ff.
[20] Beschlussempfehlung und Bericht des Untersuchungsausschusses "Parteispenden", Bundestagsdrucksache
14/9300, 204.
[21] The scandal was not just that Kohl won't reveal who the donations were from, it is also that, for the best part of 16
years, he ran a private system of money laundering.
[22] Beschlussempfehlung und Bericht des Untersuchungsausschusses "Parteispenden", Bundestagsdrucksache
14/9300, 162 ff.
[23] Urteil des Landesgerichts Bonn vom 16.2.1987. Also see: Hans Herbert von Arnim, Das System, op.cit., 95 ff.
[24] Hans Herbert von Arnim, Politik Macht Geld. Das Schwarzgeld der Politiker – weißgewaschen (Politics Power
Money. Black Money of Politicians – laundered), Knaur, München 2001, 62, 250 f.
[25] von Arnim, Politik Macht Geld, op.cit., 224 (Stand: 30.11.2000).
[26] This pension scheme was limited in reaction to public protest (see von Arnim, Politik Macht Geld, op.cit., 124 ff.),
but the ministers in office at that time kept their privileges.
[27] This outcry was caused by an opinion of mine which was published at a press conference of the taxpayers
organisation of the Saar on the 11th of May 1992; see also the booklet, Hans Herbert von Arnim, Die finanziellen
Privilegien von Ministern in Deutschland (The Financial Privileges of German Ministers), Wiesbaden 1992, and the
press coverage, for example the magazine "Der Spiegel" of May 11th, 1992 which had been previously supplied with
the manuscript of my opinion and made a cover story of it.
[28] von Arnim, Politik Macht Geld, op.cit., 90 ff.
[29] Hermann Eicher, Der Machtverlust der Landesparlamente (The Loss of Power of State Parliaments), 1988;
Gabriela Weber, Die Stellung der Landesparlamente (The Status of State Parliaments), Forschungsinstitut für
öffentliche Verwaltung bei der Hochschule für Verwaltungswis- senschaften Speyer, 1996; Arthur Gunlicks, The Länder
and German Federalism, Manchester and New York 2003, p. 216 ff.
[30] Hans Herbert von Arnim, Fetter Bauch regiert nicht gern. Die politische Klasse – selbstbezogen und abgehoben
(The Glutton as Caterer. The Political Class – Self-serving and Remote from the People), Kindler, München 1997, 186
ff.; Stephan Holthoff-Pförtner, Landesparlamentarismus und Abgeordnetenentschaedigung (State Parliaments and
Financial Compensation), Nomos, Baden-Baden 2000.
[31] BVerfGE 40, 296 (321) – 1975.
[32] The Federal Constitutional Court upholds tax allowances for donations as constitutional only up to an amount which
the majority of the citizens can afford (BVerfGE 85, 264 [313, 316]). Applying this principle to the amount of 12,000
Deutschmark (which originally was laid down in the party law) was considered much too high by the Presidential
Commission, appointed by the then Federal President Richard von Weizsaecker, which pointed out that more than
4,000 Deutschmark (= one third of 12,000 Deutschmark) would not comply with the Constitution: Bundespraesidial- amt
(Hg.), Empfehlungen der Kommission unabhängiger Sachverständiger zur Parteienfinanzierung (Office of the Federal
Praesident [ed.], Recommendations of the Commission of Independent Experts on Party Financing), Nomos, BadenBaden 1994, 76 ff.
[33] Only "elder statesmen" seem to allow themselves to criticize state subsidies for political parties. See for instance
former Federal Chancellor Helmut Schmidt, Frankfurter Rundschau of 23.12.1999: "Political parties in Germany
received far too much money from the state. Schmidt told the television station Phoenix. This was not a good thing, said
Schmidt in a 90 minutes interview with Ulrich Wickert. In his eyes parties should be dependent on membership fees and
donations from their supporters but not on some association collecting money from the industry or banks."
[34] von Arnim, Die Partei, op.cit., 2. ed., 312 ff. See also Rudolf Streinz, in: Mangoldt/Klein/Starck, Das Bonner
Grundgesetz. Kommentar, 4 ed., 2000, Art. 21 Abs. 1 No. 194: "Especially problematic are the socalled 'partytaxes' […]. Their constitutional permissibility […] is more than doubtful."
[35] von Arnim, Die neue Parteienfinanzierung, op.cit., 1065 (1070
ff.).
[36] von Arnim, Die Partei, der Abgeordnete und das Geld, op.cit.,
123 ff.
[37] During the initial phase of the German Republic public subsidies for political parties were considered as dubious
under constitutional law and were not at issue. One of the "fathers" of the Grundgesetz, Minister-President Zinn,
retrospectively admitted "that the thought of public maintenance of political parties at that time was completely
unimaginable". (See BVerfGE 20, 56 [108]).
[38] BVerfGE 8, 51 (63).
[39] von Arnim, Die Partei, der Abgeordnete und das Geld, op.cit., 77.
[40] BVerfGE 20, 56 – 1966; BVerfGE 24, 300 – 1968.
[41] See already Hans Herbert von Arnim, Parteienfinanzierung (Party Financing), Wiesbaden 1982, 25 ff.
[42] This is also stressed as a core problem of the German system of party financing by the political scientist Klaus von
Beyme. See for instance: von Beyme, Die Chance der Skandale (Chances of Scandals), Süddeutsche Zeitung of
20.1.2003: "In pretended innocence we have combined the worst of the two worlds: high state subsidies as a European
model and a system of donations […] just like the anglo-saxon model. We can not completely abolish the co-existence
of both systems. …Both ways of financing must be reconciled with the ideals of this republic – and its center is the idea
of the rule of law."
[43] BVerfGE 49, 1 ff. – 1978.
[44] BVerfGE 101, 224 – 2000.
[45] von Arnim, Das System, op.cit., 282; ibid., Die Besoldung von Politikern (The Salary of Politicians), Zeitschrift für
Rechtspolitik 2002, 235 (237 f.).
[46] BVerfGE 40, 296 (316 f.).
[47] See for instance the cover story of the German magazine "Der Spiegel" of Sept. 18th, 1995).
[48] On September 1995. Some weeks later it was published as a pocketbook: Hans Herbert von Arnim, "Der Staat sind
wir!" ("We are the State!"), Knaur, München 1995); see also idem, Misleading the German Public: The New Bundestag
Law on Parliamentarians, German Politics, Vol. 6, No. 2, 58 ff.
[49] von Arnim, "Der Staat sind wir!", op. cit., 137 ff.
[50] But see already Theodor Eschenburg, Ämterpatronage (Favoritism), 1961; Hans Herbert von Arnim,
Ämterpatronage durch politische Parteien (Favoritism by Political Parties), Wiesbaden 1980.
[51] It is impossible to convey any real sense of the vast extent of these problems in this bare outline. For example see
von Arnim, Politik Macht Geld, op.cit., which deals merely with the last of these headings, "expert commissions".
[52] See e.g. Wilhelm Karl Geck, Wahl und Status der Bundesverfas- sungsrichter (Election and Status of the Judges of
the Federal Constitutional Court), in: Josef Isensee/Paul Kirchhof (Hg.), Handbuch des Staatsrechts, Band II (Handbook
of State Law, volume II), C.F. Müller, Heidelberg 1987, 697 (706 ff. with further references).
[53] Stefan Ulrich Pieper, Verfassungsrichterwahlen (Elections of Constitutional Court Judges), 1998, 29 ff., with further
references.
[54] Antwort der Bundesregierung auf die Kleine Anfrage des Abgeordneten Gerald Häfner und der Fraktion Die
Grünen (Reply of the Federal Government in answer to a question by the Deputy Gerald Häfner and the Green
Faction), Bundestags-Drucksache 11/209.
[55] Helmut Kohl, in: Politische Parteien und öffentlicher Dienst (Political Parties and Public Service), 23.
Beamtenpolitische Arbeitstagung des Deutschen Beamtenbundes, 1982, 177 ff.
[56] von Arnim, Das System, op.cit., 159 ff. with further references.
[57] Joseph A. Schumpeter, Kapitalismus, Socialismus und Demokratie (Capitalism, Socialism and Democracy, Harper
and Brothers, New York 1942), A. Franke Verlag, Bern 1950, 427 ff.
[58] Richard S. Katz/Peter Mair, Changing Models of Party Organization and Party Democracy. The Emergence of the
Cartel Party, Party Politics 1995, 5 ff.
[59] Carl Joachim Friedrich, Corruption Concepts in Historical Perspective, in: Arnold J. Heidenheimer/Michael
Johnston/Victor T. LeVine (eds.), Political Corruption, Transaction Publishers, New Brunswick and London 1989, 15 ff.;
V.O. Key jr., Techniques of Political Graft, in: Heidenheimer et al. (ed.), op. cit., 38 ff.; Peter Eigen, Das Netz der
Korruption (The Net of Corruption), Campus Verlag, Frankfurt/New York 2003, 11 ff.; Britta Bannenberg, Korruption in
Deutschland und ihre strafrechtliche Kontrolle (Corruption in Germany and its Control by Criminal Law), Luchterhand,
Neuwied/Kriftel 2002, 15 f.
[60] Hans Herbert von Arnim (ed.), Korruption (Corruption), Knaur, München 2003, 18.
[61] See e.g. Richard Hofstatter, The Age of Reform 1955; von Arnim, Das System, op.cit., 324 ff., with further
references.
[62] Bundespraesidialamt (Hg.), Empfehlungen der Kommission unabhängiger Sachverständiger, op.cit., 102.
[63] Karl Raimund Popper, Über das Problem der Demokratie (On the problem of Democracy), in: Manfred
Lahnstein/Hans Matthöfer (eds.), Leidenschaft zur praktischen Vernunft (Passion for Commone Sense), given to Helmut
Schmidt for his 70th Birthday, Berlin, Siedler 1989, 391 ff.
[64] Fritz Scharpf/Bernd Reissert/Fritz Schnabel, Politikverflechtung, 1976; Gerhard Lehmbruch, Parteienwettbewerb im
Bundesstaat (Party Competition in the Federal State), 2nd. ed., Opladen/Wiesbaden 1998; Hans Herbert von Arnim,
Vom schönen Schein der Demokratie (The Nice Appearance of Democracy), Droemer, München 2001, 47-166; Hans
Herbert von Arnim/Gisela Färber/Stefan Fisch (eds.), Föderalismus – Hält er noch was er verspricht? (Federalism –
Does it still Come Up to its Promises?), Duncker und Humblot, Berlin 2001.
[65] Dieter Nohlen, Wahlsysteme der Welt (Election Systems of the World), Piper, München/Zürich 1978; Lawrence
LeDuc/Richard G. Niemi/Pippa Norris (eds.), Comparing Democracies: Elections and Voting in Global Perspektive,
SAGE, Thousand Oaks/London/New Delhi 1996.
[66] Helmut Schmidt, Auf der Suche nach einer öffentlichen Moral (On the Search for a Public Morality), Deutsche
Verlags-Anstallt, Stuttgart 1998, 143.
[67] Warnfried Dettling, Demokratie auf dem Prüfstand (A Test for Democracy), Die Zeit of 16.3.2000.
[68] That not only ideals but also the founding fathers' selfish interests influence the content of a constitution was
highlighted for the first time in the USA in 1913 by Charles A. Beard in his seminal work "An Economic Interpretation of
the Constitution of the United States". See e.g. Robert A. Goldwin/Wilham A. Schambra (ed.), How Democratic is the
Constitution (1980). In Germany this train of thought is fairly new, if one disregards the one-dimensional theories of Karl
Marx, Friedrich Engels and their successors.
[69] See e.g. the critique of my book "Vom schönen Schein der Demokratie", op.cit., by Michael Haus, Vom Schein zum
Sein? Ein Kommentar zu Hans Herbert von Arnims Föderalismuskritik (From Appearence to Reality? A Comment on
the Criticism of Federalism of Hans Herbert von Arnim), in: Zeitschrift für Politikwissenschaft 2000, 843 ff.
[70] See for instance "Kommission zur Föderalismusreform" (Commission on the Reform of Federalism), in: Frankfurter
Allgemeine Zeitung of 27.8.2003; "Föderalismus auf dem Prüfstand" (Federalism Being Put to Test), Rheinpfalz of
27.8.2003, "Stoiber, Teufel und Althaus für rasche Föderalismus-Reform (Stoiber, Teufel and Althaus Pleed for Speedy
Reform of Federalism), Frankfurter Allgemeine Zeitung of 28.8.2003.
[71] In Autumn 2003 a "Kommission zur Reform der bundesstaatlichen Ordnung" will be installed consisting of 16
members of the Bundestag and the Bundesrat each. The Landtage and the municipalities also send representatives into
the Commission, but without the power to vote.
[72] See e.g. articles by Klaus von Dohnanyi, Gebhard Kirchgässner, Hans Herbert von Arnim and Gerhard Lehmbruch
in: Wirtschaftsdienst 2002, 187 ff.; articles by Thomas Fischer, Udo Morgedant, Uwe Thaysen, Roland Sturm and Arthur
Benz, in: Aus Politik und Zeitgeschichte No 29-30/2003; Hans-Jürgen Papier, Steuerungs- und Reformfähigkeit des
Staates. Woran krankt unser Staatswesen? Diagnose und Reformansatz (State Ability to Reform and Control. What
Does our Political System Suffer from? Diagnosis and Reform Approach), Verwaltung und Management 2003, 116 ff.
Papier is President of the Federal Constitutional Court. For further references see von Arnim, Vom schönen Schein der
Demokratie, op.cit., 304 ff.
[73] For evidence with regard to the Federal election 2002 and the Hess state election 2003 see Hans Herbert von
Arnim, Wahl ohne Auswahl. Die Parteien und nicht die Bürger bestimmen die Abgeordneten (Election without Choosing.
The Parties and not the Citizen Determine who becomes a Member of Parliament), in: Andreas Wüst (ed), ¢, Leske and
Budrich, Opladen, 2003, 123 ff.
[74] State elections are similar. In the state election of Rhineland- Palatinate (1995), for example, 32 candidates of the
two major parties who were defeated in one of the 51 election districts secured a seat in the state parliament by virtue of
the party list.
[75] The only exception was the "Grand Coalition" of CDU/CSU and SPD which lasted from 1966-1969.
[76] Ralf Paprotny, Der Alltag der niedersächsischen Landtagsabgeord- neten (The Daily Life of the Members of the
Lower Saxony Parliament), 1995, 105 f.; von Arnim, Fetter Bauch regiert nicht gern, op.cit., 111 ff.; Wolfgang Klages,
Republik in guten Händen? (The Republic in Good Hands?), Deutscher Wissenschafts-Verlag, Würzburg und Boston
2001, 34 ff., 50 ff; Anton Guha, Ochsentour. Seiteneinsteiger oder ungenutzte Chance der Parteien, in: Hans Herbert
von Arnim (ed.), Reform der Parteiendemokratie (Reform of Party Democracy), Duncker und Humblot, Berlin 2003, 31
ff.
[77] Ulrich Pfeiffer, Eine Partei der Zeitreichen und Immobilen (A Party of Immobile Members with Ample Free Time),
Die Neue Gesellschaft/Frankfurter Hefte 1997, 392 ff.
[78] The accommodation of citizens to their disempowerment in the German political system may be one reason
explaining the relatively small public protest against the even greater disempowerment in the European Union. See e.g.
von Arnim, Vom schönen Schein der Demokratie, op.cit., 114 ff., 278 ff.
[79] von Arnim, Das System, op.cit., 34 ff., with many examples and references.
[80] von Arnim, Das System, op.cit.
[81] von Arnim, Das System, op.cit., 322 ff.
[82] Papier, op.cit., 116 (121): "Reform of election law towards strengthening the personality factor."
[83] See Hans Herbert von Arnim, Staat ohne Diener (State without Servants), pocketbook edition, Knaur, München
1995, 70-75; Susan Scarrow, Party Competion and Institutional Change. The Expansion of Direct Democracy in
Germany, Party Politics 1997, 451 ff.
[84] The only exceptions are the three city-states Berlin, Hamburg and Bremen.
[85] Hans Herbert von Arnim, Möglichkeiten unmittelbarer Demokratie auf Gemeindeebene (Instruments of Direct
Democracy on the Municipal Level), Die Öffentliche Verwaltung 1990, 85 ff., where I recommended such a reform.
[86] For instance in North-Rhine-Westfalia, Lower Saxony, Schleswig-Holstein, The Saar and Brandenburg.
[87] von Arnim, Vom schönen Schein der Demokratie, op.cit., 258 ff.; ibid., Die politische Durchsetzung der
Kommunalverfassungsreform der neunziger Jahre (The Political Interspersion of the Local Government Reform in the
Nineties), in: Die Öffentliche Verwaltung 2002, 585 ff.
[88] Hans Herbert von Arnim, Systemwechsel durch Direktwahl des Ministerpräsidenten? (Change through Direct
Suffrage of the Minister-President?), in: Heinrich Siedentopf/Karl-Peter Sommermann (eds.) (to be published in Spring
2004).
(aus: Eberhard Bohne/Charles F. Bonser, Kenneth M. Spencer, Transatlantic Perspectives on Liberalization and
Democratic Governance, Münster 2004, S. 460-488)