Norbert Lammert – failed. Wolfgang Schäuble – failed. Two Bundestag presidents with CDU party membership have not managed to downsize the ever-growing parliament. It failed because, above all, their own party friends refused to follow them. The electoral law reform now being launched by the traffic light coalition should finally lead to success.

The problem

According to Paragraph 1 of the Federal Elections Act, the Bundestag consists of 598 members. However, there is also the wording “subject to the deviations resulting from this law”. These deviations are caused by overhang and compensation mandates, which have led to the Bundestag being larger than ever before with currently 736 MPs. In the 19th legislature from 2017 to 2021 there were 709 MPs, in the 18th legislature 631, in the 17th legislature 622 and in the 16th legislature 614 MPs.

The cause

In the general election, every voter has two votes. The first vote directly elects an MP in each of the 299 constituencies. The decisive factor for a party’s seats in parliament, however, is the result of its second votes. Only: If she wins more direct mandates than she is entitled to seats according to the second vote result, she can keep these so-called overhang mandates. Since the 2013 election, the other parties have been given compensatory mandates in order to restore the balance of power determined after the result of the second vote.

The reform

To a certain extent, the new electoral law caps the number of seats in the Bundestag at 630. Elections are still made with a first and second vote. However, there are no longer any surplus or compensation mandates. The decisive factor for the strength of a party in parliament will be the result of the second vote alone. The basic mandate clause also falls away. According to her, parties have also entered the Bundestag with the strength of their second vote result if they were less than five percent but won at least three direct mandates. Every party that wants to get into the Bundestag must get at least five percent of the second votes nationwide. With one small exception: parties of national minorities remain exempt from this.

The critic

In the future, each party will only receive as many mandates as it is entitled to based on its second vote result – even if it wins more direct mandates. Then the constituency winners with the worst first vote result go away empty-handed. This is criticized above all by the CDU and CSU. The fact that the basic mandate clause is no longer enraged not only the CSU but also the left. If the CSU had not won 5.2 percent nationwide in the 2021 federal election, but 4.9 like the left, none of its 45 successful direct candidates would have gotten into the Bundestag. The left would of course also be outside. Both parties see this as a gross disregard for the will of the electorate.

Changes to the first draft

What really pissed off opposition politicians was the fact that the traffic light factions replaced their first draft with a new variant a few days before the scheduled vote. Originally, the traffic light even wanted to reduce parliament back to the target size of 598 MPs specified in the Federal Elections Act. After the Union had rejected this proposal from the SPD, Greens and FDP, the traffic light then presented a modified draft which, in addition to the higher number of 630 mandates, also included the deletion of the basic mandate clause. In the final debate, the left and the Union announced with rare unity: It was arrogant and unacceptable to deal with the other factions in this way. After all, you have to be able to form an opinion in peace with such an important project.

The consequences

In the 2021 federal election, the SPD won 206 seats, the CDU 152, the CSU 45, the Greens 118, the FDP 92, the AfD 83 and the left 39 seats. The SSW, as the party of the Danish minority, won a seat. The electoral law researcher Robert Vehrkamp from the Bertelsmann Foundation has calculated what the consequences would have been if the new law had been applied at the time. The distribution of seats would then look like this: SPD 188, CDU 138, CSU 38, Greens 107, FDP 83, AfD 75, SSW 1. This shows that the argumentation of the traffic light coalition is correct, that all parties should contribute equally to the reduction of the Bundestag. The criticism of the left is understandable that they would be particularly affected.

the Supreme Court

The CDU, CSU and Left consider the new electoral law to be unconstitutional. They therefore want to have it checked by Karlsruhe. Like every citizen, MPs can file a constitutional complaint with the highest German court and declare that their basic rights have been violated. The Union faction also wants to try an abstract norm control, in which the Federal Constitutional Court examines the compatibility of the new legal regulations with the Basic Law. A quarter of the members of the Bundestag would be required for a corresponding application.

What’s next?

Union faction leader Friedrich Merz (CDU) has outlined a second possible way to overturn the reform of the traffic light in addition to going to Karlsruhe. He says his party is generally in favor of downsizing the Bundestag. However, the next time she is involved in a government, she will “urge that this be changed,” he said with a view to the traffic light draft.