Direct Democracy in the German Länder: History, Institutions, and (Mal)functions

Abstract

This paper examines the direct democratic institutions within the German political system. In a first step, direct democratic elements are analyzed in a historical context covering a period from the Weimar Republic to and beyond German Reunification. In a second step, the direct democratic instruments provided in the Basic Law and the various state constitutions are analyzed in their respective legal context whereby the focus lies on the Lander level. Finally, the main points of criticism of the current state of direct democracy in Germany and their remedies are to be outlined. The historical analysis shows that the 'Weimar experience' contrary to commonly held beliefs cannot provide the reason for not implementing direct democratic elements in the Basic Law after World War II. The comparative legal examination of the Lander constitutions identifies three institutional types of direct democracy: a two-tier-model, a three-tier-model and a hybrid model which are presented in detail. The criticism of the current state of direct democracy in Germany concerns formal, material, and procedural requirements and restrictions that have to be met in order to make a referendum succeed. The signature quorums are comparatively high and therefore are in danger to exert a prohibitive effect. Moreover, the approval and participation quorums required by some constitutions might undermine one key contribution of direct democracy: the political discussion. The requirement of a reasoned and detailed draft bill - if interpreted too narrowly - may ask too much of laymen. The more or less comprehensive preclusion of budget-affecting issues virtually excludes any referendums. The parliament's right to submit a counter-proposal might be misused as a means of splitting of votes, in particular where the voter is allowed to cast only a single yes-vote.