JOINT COMMITTEE ON THE CONSTITUTION debate -
Wednesday, 27 Jan 2010

Electoral System: Discussion with German Ambassador

Chairman

The choice of electoral systems is one of the most important decisions in a democracy. Originating in Germany, the mixed member proportional, MMP, electoral system is becoming increasingly popular in Western democracies. It is also a popular alternative among those who advocate reform of the electoral system here. With our invited guest the committee will consider the main features of the MMP system and the experiences of it in Germany.

I welcome His Excellency, Mr. Busso von Alvensleben. We are grateful to him for taking the time to come before the committee. I thank him for his paper, which has been circulated. Before commencing the meeting, I must inform the ambassador that members of the committee have absolute privilege but that same privilege does not pertain to the ambassador. I invite the ambassador to make his presentation.

H.E. Mr. Busso von Alvensleben

I thank the Chairman for inviting me to speak to the committee today. It is a great honour to assist it in its deliberations on electoral systems.

I will focus on three aspects of the electoral system. These are the voting system, the political background and current issues under discussion in Germany. Germany has a mixed voting system, often called mixed member proportional representation, which contains elements of a majority voting system and of a proportional representation system. Under the system German voters have two decisions to make. Their first vote determines their choice of constituency candidate, with the candidate who wins the most votes being elected regardless of how his or her party performs in general. These constituency votes ensure that every region in Germany is represented in the German Parliament, the Bundestag. With their second vote voters decide on the relative strength of the parties in the Bundestag. The percentage of second votes won by the parties determines in principle their number of seats and thereby which parliamentary faction or coalition will have a majority allowing them to elect their preferred candidate as Federal Chancellor.

Half of the 598 members of the Bundestag are elected by majority — or perhaps more exactly plurality — vote in each of Germany's 299 single-seat constituencies. The other half are elected via party lists in each of the 16 federal states, the Lånder. The parties establish these lists by nominating candidates according to their procedures and criteria. Places at the top of the list are generally considered to be safe, with election most likely. However, the number of constituency seats won may be the same as the number of seats the party is entitled to according to its share of the second votes, in which case even the top candidate on the list will not be elected unless he or she has won a constituency seat.

If a party wins more constituency seats than it would be entitled to by its share in the second vote, it nonetheless keeps these additional seats, known as "surplus mandates" or "overhang mandates". The present Bundestag has 24 surplus mandates. A party will not be represented in the Bundestag if it fails to win at least 5% nationwide in the second vote unless it wins a minimum of three constituency seats with the first vote. This is the 5% clause.

The German electoral system was devised with the goal of ensuring maximum proportional representation — no vote should be ignored; maximum direct representation with members elected by plurality vote in every constituency; and maximum stability. The 5% clause and the alternative of a minimum requirement of three directly-won seats ensure that a multitude of political splinter parties represented in the Bundestag is avoided. That is one of the lessons we drew from the experience of the Weimar Republic. Furthermore there are no by-elections. If a member of Parliament, regardless of whether he or she was directly elected or selected through a list, loses a seat during a legislative period such as through death, he or she will be succeeded by the next candidate on the party's list. There is one exception to this rule in that holders of surplus mandates are not replaced. A parliamentary majority will therefore normally remain unaffected.

While the importance of the close link between a directly elected member of Parliament and his constituency is highly appreciated, proportional representation is regarded as equally important. The German constitution, the Basic Law, expressly accords political parties a significant role in politics. It is they who select the candidates for both the constituencies and the lists.

Germany has never known primary elections. Candidates are nominated at special party conventions by members of the party. Thus, candidates generally depend to a larger degree on party support than on their personal relationship with the electorate. The latter becomes, after nomination by the party, obviously predominant for constituency candidates but less so for those who are placed on the party list. Competition between party members will therefore not necessarily surface in public debate but usually remains an internal process.

In consequence, the focus of members of the Bundestag is more on national politics. Performance and reputation of the party are what matters most in the elections. Members of the German Bundestag constitutionally have a very independent position, the so-called "free mandate", and are expected to legislate in the interest of the population as a whole, exclusively based on their personal convictions. This is not always easy, either in instances where the interest of party and parliamentary faction invites unanimous voting or for constituency representatives who are more exposed to specific expectations from their electorate.

The German electoral system allows strategic voting by means of splitting votes, whereby one gives the first vote for one party and the second vote for another. In the 2009 elections, for example, an obvious line of reasoning for many voters was to give the first vote to the CDU candidate to enable him or her to win a constituency, and the second vote to the FDP, which had little chance to win a majority in a constituency but was supposed to be strengthened to allow a CDU/FDP coalition to succeed. In fact, the FDP did not win one constituency seat in the 2009 elections, while the Bavarian sister party of the CDU, the CSU, won all the Bavarian constituencies and did not obtain any additional list seat.

At the local and state level, some German Lånder have variations of the list house voting system. Bavaria, for example, has a mixed member proportional representation system for state and local elections in which the list is open or, as it is sometimes called, “ordered”. This open list allows voting with the second vote either for the list drawn up by the party as it stands or for an individual candidate in the list regardless of his or her position on it. Consequently, the voter can move candidates up and down the list, thus modifying the party’s choice. In addition, the calculating procedure is different. In contrast to the national system where only the second votes determine the percentage of a party’s seats, in Bavaria the first and the second votes together determine the percentage. The Bavarian system thus increases the proportionality element even further.

The German constitutional court recently ruled that the system of surplus mandates needed to be modified. While preserving the principle, some technical details on how exactly the number of surplus mandates is calculated need to be changed. One issue is the effect of the so-called negative voting weight that can, in rare cases, lead to a distortion in calculating the respective number of seats. The federal electoral law is currently under review and is supposed to be amended by 2011.

Another current issue is the voting age. In some Lånder the voting age was lowered from 18 to 16. The first change of this kind in local elections took place in Lower Saxony in 1995. Bremen will be the first German Land to allow 16 and 17 year olds to vote in state elections in 2011. On the national level this question is still under discussion.

Deputy Jim O’Keeffe

I thank the ambassador for a very interesting and precise exposition of the German system. I have always thought it a good system and wondered whether it could have application in the Irish system.

One of the issues arising from a list system is the potential for prejudice to be exercised by the few at the centre of a party in arranging the order of a list. It would arise if a candidate favoured by the party leadership was put on its list while one not so favoured was put either at the bottom of the list or not on it at all. How does that work in practice? Are there major tensions during the compilation of lists by the different parties?

The ambassador spoke of the attitude in the Bundestag where members are free spirits who act on behalf of the population as a whole, following the approach advocated by Edmund Burke in which politicians should always do what they feel is right, irrespective of the party view. Does that cause difficulties between members and their parties? If the major focus of members is on national issues, is there any scope for them to focus on the individual concerns of their constituencies or communities? Do members spend much time looking after local issues?

How is the membership of the second house, the Bundesrat, selected?

Chairman

I intend to bank all the questions and ask the ambassador to reply at the end.

Senator Dan Boyle

I was interested to hear what the ambassador said about the Bavarian variation in having a more open list than elsewhere. The joint committee would be interested to see the detail of how that system, which seems similar to the Danish system, works. One of the concerns about lists is the fact that they are predetermined in a closed fashion by political groupings, while the individual voters do not have a proper say in determining who their representatives should be.

I would be interested to learn to what degree non-party members have come through the constituency system for federal elections. Does that happen in the German Parliament? I am led to believe that, regardless of party affiliation and largely because of the list system, members of the German Parliament are generally expected to have a third level education. To what extent is parliamentary representation misshapen if it is not perceived to be representative of all people within society at a given time? While I acknowledge that our Parliament is not particularly representative in that way either, I seek the ambassador's comments in that regard.

I refer to the question of a lower voting age, which is in operation for local elections in certain Lånder and which will be used in a Land election next year for the first time. In so far as is possible, the ambassador should comment on his perceptions of the national debate on this issue in respect of federal elections. At national level, is Germany close to emulating the example provided by Austria regarding lowering the voting age?

Senator Eugene Regan

I thank the ambassador for his presentation. In his conclusion, he spoke about the German constitutional court's decision regarding surplus mandates and noted that federal electoral law is under review at present and is to be amended in 2011. Does this review relate to surplus mandates only or are other aspects of the electoral law subject to it? Second, taking the German system as a model and based on the ambassador's first-hand experience of Irish politics, are there certain aspects of Irish politics and the Irish political system that strike him as being odd or dysfunctional or which would encourage him to recommend the German model to this joint committee?

Deputy Michael Kennedy

I also welcome the ambassador and thank him for his paper. Has there been discussion in Germany of the absence of independent members of Parliament there? As he is aware, Ireland traditionally has always had quite a number of such members. Has this issue ever been discussed in the context of electoral reform in Germany, because those who wish to make a name for themselves in politics must do so through the party political system? One problem I believe to be associated with the closed list is that if the difficulty in getting elected pertains to the people who elect one, the difficulty will be bigger within a closed list system because to get on to the list, one must engage in persuasion within a political grouping. Consequently, new people or, as Senator Boyle suggested, people who might not have third level degrees or something special about them will find it difficult to be chosen for a list.

As for the voting age, the ambassador mentioned both 16 and 17 year olds. In the discussions in Germany, did one Land select the age of 16 as being a suitable voting age while another Land selected the age of 17? If so, what was the reason?

Deputy Michael Woods

This presentation was very interesting and requires some thought and consideration. How long has this system been in operation? The ambassador referred to allowing members remain in touch with the people. How do they do so? Moreover, for how many days does the Bundestag sit ? If my recollection of a visit there is correct, sittings in the main chamber took place for two days per week and members conducted party committee meetings, other meetings and other tasks on other days. The ambassador should provide further detail in this regard and explain how members keep in touch with the people.

One issue that always has been of concern to me is that of the party list. The ambassador's paper noted that being at the top of the party list is regarded as having a safe seat among the relevant 50% of members. In comparison, our system is highly open and depends on how members of a party fare with the people. While there certainly is a battle to receive a nomination for a party, thereafter, it is left up to the people to decide who they love most and who they wish to see elected.

I was also interested in other points made by the ambassador in his useful contribution. For example, I am interested in the 5% requirement and the fact, as the ambassador made clear, that a party is included if three of its members are elected. I was not aware of this before hearing the ambassador's contribution. I again thank the ambassador for his contribution, which will stimulate much thought. I seek more detail on how it works in practice.

Chairman

I again thank the ambassador for his presentation. I wish to add to the question put by Deputy Jim O'Keeffe on Edmund Burke and what is expected of legislators. The ambassador stated that legislators are expected to legislate in the interests of the population as a whole, exclusively based on their personal convictions. Who expects that of them? Is it in fact expected of them in this day and age?

H.E. Mr. Busso von Alvensleben

I thank members for their questions. As for how the lists are devised, they arise from intense discussions inside the parties. I wanted to stress this point in the paper as well. It is not so much a public discussion but very much an internal process within parties and therefore quite different from the system here. The strong role of the parties is laid down in the constitution and the so-called free mandate also is contained in the constitution. Therefore, the expectation as to what the ideal of a Deputy should be comes from the experience, sometimes even the personal experience, of the so-called fathers of our constitution. What they had in mind was the depressing experience of the Weimar Republic. They did not want lots of small parties or individual members, for instance, who could get into parliament and have it immobilised by splinter parties of all kinds. This is the reason they thought it was important to strengthen parties and to have a representative system and not a direct system. On the other hand, they wanted to retain a certain direct influence in parliament, which is the reason they split it in half. They thought we should have the best of both sides by having directly elected members of parliament. It is true that they are elected by the party, at least in so far as what concerns the candidature as such. The voter has no chance to change the candidate for the constituencies because that will be a party member who has been elected as a candidate.

Deputy Jim O’Keeffe

Does the ambassador mind if I return to the issue of the selection of the list by the parties and the ordering thereon? In practical terms, does this result in the knives being out in the smoke filled rooms and political blood being shed on foot of the tensions arising regarding the placing on the list?

H.E. Mr. Busso von Alvensleben

Yes.

Deputy Jim O’Keeffe

Ultimately, who decides? Does the secretary general of the party or the party leaders decide? What is the system? I can see fertile ground for very difficult discussions on arranging the list.

H.E. Mr. Busso von Alvensleben

It is discussed by groups within a party but eventually the party members elect candidates at special meetings through a special procedure which is quite transparent. There is no doubt that internal party structures have a strong influence on the process. Who is included in a party is constantly discussed in Germany. Returning to the question of whether expectations exist with regard to the academic background of candidates, I have no clear figures of the educational background of present members of the Bundestag. It is clear that primary education only is under-represented, as is the case in many other parliaments.

One can succeed in getting into the Bundestag only by engaging with a party. It is extremely rare that an independent candidate who is not affiliated to a party gets elected to a directly elected seat. It is possible, but one must keep in mind that German constituencies have approximately 130,000 voters and a relative majority is required. This means an independent candidate must be extremely popular, well known and hard working. It can happen and has happened, but very rarely. Typically, and almost without exception, one enters parliament through a party.

The intention of the fathers of the constitution was not to have too many parties. The 5% rule and the three-member rule mean that if a party has only three candidates directly elected, which happened with the left, and receives only 2.3% of the vote, it is represented by those three members and by the number of seats that corresponds to the percentage of vote received, even though that percentage is less than 5%. This has rarely happened.

One could see the free mandate as a contradiction between constitutional strengthening of parties and of members of parliament. Theoretically, a member is free to decide the way he or she acts. However, strong party discipline exists and many people have written theses on what would be the ideal balance. There is no ideal balance but members know they are expected by the constitution and the general public to act as independently as possible. This is a matter that is constantly discussed as sometimes the constitution is interpreted as stressing independence and other times it is interpreted as stressing party discipline. Whenever the issue is raised we have wonderful food for discussion and the lack of ideal balance makes discussion even more fruitful.

With regard to links to constituencies, each constituency has approximately 130,000 voters. There is no doubt that directly elected members have strong links to their constituencies. They all have offices in their constituencies and, as in this country, they try to return to their constituencies as often as possible as it is expected. It is more difficult for those elected from some areas, such as the Rhur region which has more than 5 million inhabitants, to have close contact with constituents.

Most of the other half of the members also have offices. Although they do not have constituencies, these offices are located where the members are based because they need the strong support of party members in their regions. They cannot just sit in Berlin and deal with national politics without caring about their electorate at home. That electorate is not made up of ordinary voters but party membership. The members of parliament must prove that they did something for their Lånder or regions.

The second chamber, the Bundesrat, is different. Members of the Bundesrat, as they did in Bismarck's second Reich, represent the German federal states. In 1870 those states were sovereign; now they are the federal states, the Bundeslånder. The Prime Minister and one minister of each state are members of the Bundesrat and they deal with legislation. The greater part of German legislation can only be effected with the co-operation of the Bundesrat. The general rule is that if legislation will affect the Bundeslånder the Bundesrat will have a say on it.

This can cause problems for the government because while it has a majority in the Bundestag, membership of the Bundesrat can change during the four years between elections to the Bundestag as regional elections take place almost every year. This can be compared with the United States where a federal government must begin work immediately to carry through its grand designs and projects. In Germany, criticism begins immediately in the regions and an initial majority in the Bundesrat may fade away over the years, which makes it difficult to govern. The role of the Bundesrat is essential to the German legislative process. It is a difficult aspect of the internal balance of the federal republic which must be worked on continuously.

As far as I know, there were no discussions during the early years of the federal republic on whether Bavaria's open list system would be suitable for the federal republic. The original tendency was to make matters as clear and transparent as possible with a strong element of representation but not necessarily having too much direct influence by voters as an element of distrust existed. People were aware that the Nazis came to power through the electoral system. Therefore, one of the strong focuses was on how to prevent that situation. Therefore, I could imagine what happened in Bavaria — I do not know when this law was devised but it is probably the original one. It was considered that this was going too far with an electorate of more than 40 million people. It is a problem and we do not know where it will end. This is speculative. There is no discussion about transferring that system to the federal level.

I mentioned the issue of non-party members. It is very difficult but it is not excluded. If anyone manages to get that relative majority he would be in the Bundestag but he would be completely isolated without a parliamentary group. We have that on the state level in Schleswig-Holstein where we have a Danish minority. They have the right to have a Member in parliament as set out in a special regulation.

Senator Dan Boyle

If a member of the German Parliament changes party affiliation in the course of a parliamentary term, does it make a difference whether he or she is a constituency member or on a party list and is he or she obliged to resign?

H.E. Mr. Busso von Alvensleben

That is part of the ideal of the free mandate. He or she is not responsible to the voters. He or she is responsible to his or her own conscience. He or she is free to change. Whether he or she is accepted in the other faction, for instance, is another story but it is possible.

Academic education is a matter of concern. The issue of how to activate people with non-academic education into parliament has been addressed, but not to a degree where we could be satisfied. That is almost a universal problem because strong personalities are needed. They are there but how can one encourage them to engage in parties? The way is through parties and it takes years. They will not allow one come up easily; one cannot just start one's career as a bright star and expect to be on the list the next time. This is not the normal way.

There is no big debate right now on the voting age. There is constant thinking about it but no serious debate is taking place and there are no direct plans to change things on the national level. The experience is that it does not make much difference. At least no particular party could count on stronger or increased support from that section of 16 and 17 year olds. The experience is that once they get the right to vote they engage a little more than the following group of youngsters between the ages of 18 and 21 and so on. It is going down and coming up again. The impact is limited and, in terms of greater democratic involvement it is almost non-existent in the public debate.

The constitutional court ruling only concerns the so-called overhang mandates. The problem is with the negative weight vote. It is a matter of calculation. We follow the system. I am not very conversant with it but Sainte-Laguë seems to be the most modern way of calculating the votes. What has happened in the past is that unintentionally there might be one additional vote or even one less vote, so it is contrary to what one would normally expect by voting, just by rounding figures up or down. It is a matter of calculation. A more sophisticated way of calculating has to be found and that will be the core of the discussion. It is not the overhang mandate as such but some consequences that have occurred on the national level and on regional level should be excluded. I would not wish to compare with the Irish experience. Six months is not enough. That is something we could do in private, but not even there if I think of certain experiences.

On the question of the list system, members might consider questionable the way of selecting people through party mechanisms but that is how things work in Germany. We have had a major discussion on the role of parties as such in Germany and whether the role of the parties is too important, because this representative thinking goes very far. We have them in many forums and public media and in some other instances. This is an element we have always stuck to, although we see that it can and does create difficulties because party leadership can be strong. Internal democracy in decision making in the parties is under discussion as it has to be more transparent. This issue is constantly discussed. We think it has worked well but we admit there is enough reason for everybody else and every observer to discuss and question it and to ask how things could be done differently. However, this is the way.

How do members of Parliament keep in touch with Parliament? I do not know exactly how many days the Bundestag sits but there are long holidays in between. Most of the members of Parliament do not live in Berlin. They are there as long as parliament is sitting but they always return at least for the weekend to the places from which they come, but not always constituencies. They live on that basis. It is extremely dangerous for those who think they can do without that. It is a problem once they actually move their families to the capital because then normally they tend to stay there longer. Members know much better than I do the problem that is caused by that. It takes a while to get to some remote corner of Germany but there, more than ever, people would expect one to be there whatever happens. I do not think German members of parliament can do it the same way as members of Parliament in Ireland. That has to do with the size of the country, which is not that big, but with the number of people for whom they have to cater.

I think I have exhausted most of the members' questions.

Chairman

Thank you for your most comprehensive response to all of the questions and comments made by members and for your presentation. It is extremely helpful to the committee in its deliberations and we are most grateful to you.

H.E. Mr. Busso von Alvensleben

Thank you, Chairman.

The joint committee adjourned at 10.50 a.m. until 7 p.m. on Tuesday, 2 February 2010.