Die Pause: the old Bundestag may still have a role to play

Likely new Chancellor Friedrich Merz may seek approval of the outgoing Bundestag for constitutional changes on expenditure before its mandate expires this month

Transitions of power

I want to talk about parliamentary mandates. No, wait, come back: this could be important. The point at which the particular composition of a legislature ceases to exist and exercise any mandate varies from country to country. In the United Kingdom, it is unambiguous, sudden and total. Parliament is dissolved by the monarch, at the request of the Prime Minister, by the issuing of a royal proclamation under the Great Seal of the Realm. This is one of the sovereign’s prerogative powers, devolved as most are to the executive, meaning it does not need to be approved by Parliament or any other body.

(The prerogative power was abrogated under section 3(2) of the Fixed-term Parliaments Act 2011 but restored by section 2 of the Dissolution and Calling of Parliament Act 2022.)

The moment that Parliament is dissolved—there is no leeway here—its mandate expires because the institution in a sense no longer exists. Members of Parliament cease to be Members of Parliament in that instant, and there are stringent penalties for continuing to describe themselves as such or using the post-nominal letters “MP”. They are not even allowed to enter the Palace of Westminster as of right, although their staff are allowed to remain. Peers are “discharged” and will not resume their legislative duties until they receive a writ of summons to the new parliament. Any business still before Parliament falls, and it cannot be recalled in an emergency until after the general election.

This guillotine-like process is not universal in European legislatures. Broadly speaking, electoral mandates expire at one of five points in time: at a fixed date; on the last day of the old legislature’s term (as in the UK); on the day of elections for a new legislature; when the mandates of new legislators are validated; or on the first day of meeting of the new legislature. In Germany, the mandate of the Bundestag falls into that last category: the previous group of legislators ceases to exercise its mandate when the new Bundestag has its first meeting. The number of sovereign states in Europe varies according to definition, but I put it at 44, of which only 12 others apart from Germany use this definition of the end of an electoral mandate: Austria, Belarus, Hungary, Italy, Latvia, Liechtenstein, Lithuania, Romania, Russia, Slovenia, Sweden, Switzerland and Ukraine.

The election of the 21st Bundestag

Why does this piece of parliamentary arcana matter? What are the consequences? Germany went to the polls on Sunday 23 February to elect a new legislature, and according to the Federal Republic’s Basic Law, the 21st Bundestag must be constituted within 30 days of the election, which means by Tuesday March 25: there are essentially three weeks left. During that time, a coalition needs to be formed which will have the parliamentary support to confirm its candidate for the position of Federal Chancellor, conventionally the leader of the larger or largest party in the proposed coalition. (Deutsche Welle, the German state-owned public broadcaster, has a useful guide to the sequence of events.)

It is expected that Friedrich Merz, leader of the Christian Democratic Union (CDU) which, with its Bavarian sister party the Christian Social Union (CSU), has the largest group in the Bundestag, will be elected as Chancellor. Here is a reminder of the electoral result:

CDU/CSU Union 208
Alternative für Deutschland (AfD) 152
Social Democratic Party (SPD) 120
Alliance 90/The Greens 85
Die Linke 64
South Schleswig Voters’ Association (SSW) 1

Given that the Union and the AfD are both right of centre and the SPD, the Greens and Die Linke are left of centre, someone looking solely at the arithmetic would see an obvious way forward: a Union/AfD coalition would have a healthy majority of 90 in the new Bundestag, more than enough to sustain a government for the standard 46-48-month term. Only five of the previous 20 mandates of the Bundestag have lasted for less than four years, and the shortest, the 9th Bundestag of 1980-83, lasted two and a half years.

As we know, however, it is not that simple. Not only do the Union and the AfD have substantially different policies on a number of issues including immigration and repatriation, climate change, European Union and NATO membership, relations with Russia and the war in Ukraine, but the AfD is regarded by the other political parties as an extremist far-right party. As a result, they keep in place the so-called Brandmauer or “firewall” which is an agreement among them not to enter partnership or co-operate in any way with the AfD. All the party leaders remain committed to the Brandmauer, and it is taken so seriously that Friedrich Merz was widely criticised in January, including by his party colleague and former chancellor, Angela Merkel, simply for tabling a motion in the Bundestag in the knowledge that the AfD was likely to support it. He had not sought their support nor consulted with them in any way: the mere fact that they voted in support of the motion was unacceptable for many German politicians.

For what it’s worth, I think this extreme interpretation of the Brandmauer is dangerous and quite silly. To make it effectively the overriding consideration for any legislative proposal that the AfD does not support it gives the party a huge degree of initiative and the potential to make mischief, and seems entirely the wrong lens through which to see public policy. I hold no brief for the AfD and am perfectly persuaded that many of its policies are ethically and morally wrong as well as practically mistaken and many of its members are either unconvinced by the primacy of the democratic process or are out-and-out fascists. At the same time, I find the idea of having your ideology and your political activities shaped by whether one particular party supports them or not is convoluted and intellectually weak.

I wrote about possible coalition negotiations at the beginning of the year. The result of the federal election was sufficiently in line with predictions and opinion polls that nothing substantial has changed in the likely outcomes; the tl;dr version is that the only practical way forward for Merz seems to be the formation of a “Grand Coalition”, or Große Koalition, between the Union and the SPD. This happened in 1966-69, 2005-09 and 2013-21—always, interestingly, with the Union as the senior partner and providing the Chancellor—but the difference this time is that the SPD is not the second-largest group in the Bundestag but the third-largest, with 120 seats to the AfD’s 152. For this reason, many AfD supporters see it as a device to exclude their party from power, which, in fairness, it absolutely would be.

The other factor to consider, and one which I think will rankle with many voters, even those who do not want to see the AfD given any place in the federal government, is that the SPD suffered a catastrophic defeat in last month’s election. Falling from largest to third party in the Bundestag, it lost 86 seats, from 206 to 120, and dropped from 25.7 per cent of the vote to 16.4 per cent. The last time it won fewer seats at the national level was May 1924 when only 100 SPD members were returned to the Reichstag, and it hasn’t received a smaller share of the vote since February 1887, when it received only 10.1 per cent.

This was an epochal defeat. The outgoing Federal Chancellor, Olaf Scholz, has said that he will take no part in coalition negotiations nor accept any role in a government which might be constructed, though he will take his seat for Potsdam-Potsdam-Mittelmark II-Teltow-Fläming II in the new Bundestag. Lars Klingbeil, the party’s co-leader (with Saskia Esken), has become the SPD’s leader in the Bundestag and will be its chief negotiator. Despite the departure of Scholz, however, the likelihood is that the SPD, having suffered such an enormous electoral setback, will nevertheless remain in government, albeit as a much-reduced junior coalition party. It has not been in opposition since 2013, and indeed has spent only four years out of power this century. Whatever the arithmetic and the political imperatives, it would be understandable if voters felt somewhat frustrated that the SPD could spend another four years in ministerial positions. But that’s coalition politics for you.

The 20th Bundestag: the last act

With up to three weeks until the 21st Bundestag must be constituted, there have been suggestions that Friedrich Merz will not wait until he can form a governing coalition, assuming that task is possible, but, as Kanzlerkandidat of the group which won the most seats at the election, will use that unofficial and moral authority to ask the 20th Bundestag, in its last few days before its mandate expires, to approve various measures which are either urgent or for which Merz fears there will not be enough support in the new legislature.

There is an important constitutional factor here. Article 79(2) of the Basic Law stipulates that, in terms of amending the Basic Law itself—of which some parts are strictly off-limits, including the underlying principles of Articles 1-20 and the division of the Federal Government into Länder—“any such law shall be carried by two thirds of the Members of the Bundestag and two thirds of the votes of the Bundesrat”. To look at this from the other end of the telescope, any group which can muster the votes of a third of the Bundestag can prevent any changes to the Basic Law.

There are understandable historical reasons why the German political establishment is extremely wary of a simple parliamentary majority having the ability to amend the country’s fundamental constitutional settlement. It is very different from the UK’s arrangements, whereby in theory Parliament could legislate tomorrow to say that the moon is blue or that David Beckham should be Lord Protector.

The Basic Law, in Articles 109 and 115, restricts structural budget deficits to 0.35 per cent of gross domestic product and limits the issuance of government debt in order to maintain a balanced federal budget; this is known as the Schuldenbremse or “debt brake”. These strictures were introduced in 2009 by Angela Merkel’s first government in response to Germany’s debt-to-GDP ration exceeding 60 per cent, a threshold which is imposed on all EU member states by the Treaty on European Union (the so-called Maastricht Treaty). There is provision for the limit of 0.35 per cent to be exceeded temporarily in times of crisis or recession, and in 2020 the debt brake was suspended in order to give the government greater freedom to deal with the costs of the Covid-19 pandemic.

The debt brake was due to come back into force for 2023, but in November of that year, the Minister of Finance, Christian Lindner of the FDP, reluctantly introduced a supplementary budget which continued its disapplication for a further year. On October 2024, with tax revenue falling and a stagnant economy, the Vice-Chancellor, Robert Habeck of the Greens, who was also Minister for Economics, proposed creating a €1 billion fund financed by debt to promote private-sector investment. This would have been incompatible with the debt brake. Lindner, whose party has a long-term commitment to fiscal discipline, countered by issuing an 18-page policy paper which called for an entirely new economic policy including tax cuts, reductions on public expenditure and deregulation. It exposed fractures in the three-party coalition which were no longer reconciliable: Chancellor Scholz asked the President, Frank-Walter Steinmeier, to dismiss Lindner, after which two of the FDP’s three other cabinet ministers resigned, while the other ended his party affiliation and remained in office as an independent. The FDP effectively left the government as an SPD/Green coalition.

During the election campaign, Merz stated his commitment to the debt brake. It was, after all, introduced by a CDU-led administration, although the Minister of Finance at the time was the SPD’s Peer Steinbrück, and the CDU has traditionally advocated fiscal conservatism and sustainable public finances. However, Merz delicately left the door open to discussions on ways in which it could be reformed, no doubt aware that potential coalition partners the SPD and the Greens, while acknowledging the importance of a balanced budget, had indicated that perhaps in its current form it put too much importance on the avoidance of public debt and too little on overall management of the economy and the promotion of growth and prosperity.

That the federal budget requires substantial investment is widely accepted. There is a need for improvement and modernisation of Germany’s transport and communications infrastructure, but, more than anything else, the government needs to increase defence spending considerably. Germany was one of the most enthusiastic beneficiaries of the post-Cold War “peace dividend”: having spent well over 2.5 per cent of GDP on defence throughout the 1980s, and considerably more before that, the government reduced its commitment to 1.5 per cent by 1995 and 1.1 per cent by 2005. It met the NATO target of two per cent in 2024, but only just, and that represented a 32-year high. With recent statements by President Trump, Vice-President Vance and others finally making European leaders understand that the United States is in deadly earnest to reduce its commitment to European security, and that European countries will have to increase their own capabilities and therefore spending very substantially, attention is now focused on how much money the government will need to restore, re-equip and expand the Bundeswehr, which is regarded as being in a poor state of readiness.

Friedrich Merz’s official stance during the election was that he was confident of being able to increase investment by cutting welfare spending and benefiting from economic growth. That now seems fanciful, at least in the short term. One report in Bloomberg, which was neither confirmed nor denied, said that Merz had prepared a series of measures on defence which would cost €200 billion, a sum which is clearly unaffordable through conventional government expenditure.

There are two principal options for generating the resources required for that kind of investment. The first is to create a special fund separate from the government’s standard budget: this was the approach of Olaf Scholz’s government in 2022, when he created a €100 billion fund to modernise and rearm the Bundeswehr, so there is a clear and recent precedent. However, the creation of that fund required an amendment of the Basic Law, what is now Article 87a, to allow “a special trust with its own credit authorisation” which can only be spent on the armed forces, and was limited to €100 billion. A larger fund would need further changes.

The second option, which would be theoretically simpler, would be to amend the Basic Law and either suspend or abolish the debt brake, to allow the government to finance the increased military spending through conventional means. However, last week Merz seemed to rule out this option in the short term.

It is out of the question that we will reform the debt brake in the near future. If it happens at all, it will be quite extensive and difficult work.

Elements of the CDU/CSU, while supportive of greater defence spending, are uneasy at the wider implications of weakening the debt brake. They fear that it would lead to a diminution of fiscal discipline and encourage greater government expenditure across the board, an attitude apparently justified by Katharina Dröge, co-chair of the Greens in the Bundestag, who protested “Why should I accept that we are only talking about security when the entire German economy is demanding that the debt brake be reformed?”

Changing the Basic Law

Whichever option is preferred, the important point is that there will need to be an amendment to the Basic Law, and therefore the policy, whatever it is, will need the support of two-thirds of the Bundestag. And this brings us back to the electoral arithmetic of last month’s election.

The AfD and Die Linke have, on the face of it, little in common. The former is regarded by many as a far-right extremist group, while the latter is the lineal descendant of the Socialist Unity Party of Germany, the Marxist-Leninist party which ruled the Democratic Republic of Germany from its foundation in 1949 to the end of 1989 and was one of the most hardline Communist régimes in the Eastern bloc. However, both are opposed to increased defence spending, the AfD because it is hostile to NATO and to Western support for Ukraine and generally pro-Russia, Die Linke because it is anti-militarist, supports international disarmament and opposes the deployment of the Bundeswehr outside Germany.

At the election, the AfD and Die Linke between them won 216 seats in the new Bundestag. Amendments to the Basic Law require the support of two-third of the Bundestag, which means they can be blocked by one-third plus one, which is 211. Potentially, therefore, if they maintained strict party discipline, the AfD and Die Linke could prevent either the creation of a special fund for defence or changes to the debt brake once the new Bundestag convenes.

This leaves Friedrich Merz with a potentially controversial though constitutionally proper possibility: seek the approval of the outgoing membership of the 20th Bundestag to whatever proposals he decides on so that they have been agreed before the new legislature’s mandate comes into operation. The membership of the old Bundestag offers a very different arithmetical proposition.

SPD 207
CDU/CSU Union 196
Alliance 90/The Greens 117
FDP 90
AfD 76
Die Linke 28
Sahra Wagenknecht Alliance 10
Unattached 9

This is self-evidently a much weaker position for the AfD and Die Linke, with only 104 votes in a larger body of 733, where a blocking minority would require 245 votes. Even if the fiscally conservative FDP, which is not represented in the new Bundestag, were to oppose any extra funding measures, the chances of Merz finding allies among the SPD, who will have one eye on a potential coalition, and the Greens, who are ambivalent towards the debt brake, Atlanticist, pro-NATO and in favour of a tougher position towards Russia, must be rated as good. In particular, he is supported by the current SPD Minister of Defence, Boris Pistorius, who hopes to remain in his role in a potential CDU/CSU/SPD coalition. He has consistently been rated as Germany’s most popular politician and is a strong contender to emerge as the new leader of the SPD and therefore likely Vice-Chancellor in a new government.

The constitutional and legal propriety of such a course of action has not been seriously called into question. Professor Hanno Kube, who holds a chair in public law at Heidelberg University, told The Financial Times:

From a constitutional perspective, the old Bundestag is fully capable of taking action until its last session. Whether one wants to use the last days of a legislative period for a major political project—in this case a constitutional amendment—is therefore a political question.

Indeed, in theoretical terms, it seems quite clear: everyone accepts that, according to the constitution, the mandate of each individual iteration of the Bundestag expires when its successor first meets, and there is nothing in the Basic Law to say that its powers of action or its authority are in any way different in that short period between the federal election and the assembly of the new Bundestag.

There is an understandable and lingering anxiety about defence spending and the constitution dating back to 2023. In its 2021 budget, the Scholz government had transferred €60 billion of unused credit earmarked for measures to deal with the Covid-19 pandemic to its Klima- und Transformationsfond or Climate and Transformation Fund, set up to invest in industrial modernisation and green energy transition. However, after a case was filed by the CDU and CSU opposition, the Federal Constitutional Court, Germany’s highest authority on matters relating to the Basic Law, ruled that this transfer was unconstitutional and the government could not repurpose so substantially resources allocated for one purpose to another. With all payments from the KTF then frozen, the government’s budgetary plans were completely disrupted, and it essentially set in train the series of events which led to the coalition’s collapse last year. Although there is no suggestion that a similar case in respect of action taken by the 20th Bundestag in its last days would meet the same fate, it has sharpened anxieties.

The clock is ticking. As Professor Kube noted dryly, seeking controversial constitutional amendments from the old Bundestag is “a political question”. Alice Weidel, co-leader of the AfD, summed up the argument against the plan on social media on 24 February, the day after the election:

Election fraud announced: On day 1, Merz threw all his election promises overboard, no longer wants to close the borders and wants to talk to the Greens and SPD about reforming the debt brake. This is politics against the will of the voters!

Of course this is a case of she-would-say-that-wouldn’t-she. The idea that politicians and élites are misleading, tricking or ignoring the electorate is a standard motif of populist parties from the Republicans in the United States through Reform UK to the National rally in France and Weidel’s AfD. It does not necessarily stand up to detailed, painstaking scrutiny and explanation, but the current political climate across the Western world is not dominated by that approach but by split-second decisions, first impressions and “vibes”. It is susceptible to the directing, if not the outright manipulation, of generalised anger and discontent.

Ultimately, Merz has a good chance of finding support for constitutional amendments in the outgoing Bundestag but a small and narrowing window of opportunity. He will face political accusations of trickery and subterfuge, and, while these have no legal or constitutional merit, they could find resonance among voters who feel that such actions by legislators many of whom will soon no longer be in their seats is somehow “off”. That political risk is substantial, and could prove a benefit especially to the AfD, which doubled its share of the vote at the election to 21 per cent and recorded its best result ever. On the other hand, if Merz is to find €200 billion to spend on Germany’s military capabilities, he may regard that risk not only as manageable but unavoidable. Where else will the money come from?