Early German Elections in Legal Limbo

Amid widespread discontent over record joblessness and increasing economic uncertainty, the overwhelming majority of Germans support having an early poll this fall. All major political parties are also in favor of bringing forward the next general election by a year to help the country avoid gridlock and get back on track.

In most parliamentary democracies, the path would be clear. The head of government would dissolve parliament and call early elections. But in Germany, the postwar constitution was written to prevent exactly such a course of action with the aim of avoiding the political instability seen during the Weimar Republic that helped Hitler come to power in 1933.

That forced German Chancellor Gerhard Schröder to ask his members of his center-left coalition of Social Democrats and Greens to withdraw their support for his government in order to willingly lose a confidence vote in parliament on Friday. The legal ambiguity surrounding that move has set the stage for a potential clash with President Horst Köhler -- who must assess whether new elections are constitutionally called for within 21 days of a failed confidence vote.

"The confidence vote wasn't meant to be used like this," said Dieter Grimm, a former Constitutional Court judge. "It's not enough for Schröder to simply say he doesn't have a stable majority. It may be the best solution politically but I have considerable doubts about it all. It's certainly not what the constitution intended."

Schröder seeks mandate

Schröder was forced to seek early elections after his Social Democratic Party (SPD) was hammered in a key state election in May. The defeat in the party's regional stronghold North Rhine-Westphalia was the latest in a string of losses that Germans have used to punish Schröder for scaling back Germany's generous welfare state and failing to revive the economy.

But instead of resigning, which would have cleared the way for Köhler to approve bringing forward the planned 2006 election by a year, Schröder wants to win a new mandate for his unpopular reform agenda.

Currently riding high in opinion polls, the conservative opposition has strongly backed the drive for new elections. Along with broad public support for going back to the polls, Köhler is under considerable pressure to dissolve parliament. Many political and constitutional law experts say a strict interpretation of Germany's Basic Law, however, would reject Schröder's fictitious confidence vote.

"With a lot of goodwill and at least one eye on the law closed the president could let it slide," constitutional law expert Josef Isensee told the Welt am Sonntag newspaper.

Constitutional fudge

But the prospect of that kind of legal fudge has led some politicians and observers to support a constitutional amendment allowing the chancellor greater discretion in calling an election.

"Changing the constitution would be the wise thing to do. We don't have conditions like those in the Weimar Republic anymore," Jürgen Winkler, a political scientist at the University of Mainz, told DW-WORLD.

However, he said there was not enough broad political support for a quick amendment, sentiment backed by the president of the lower house of parliament, Wolfgang Thierse.

"We live in a stable democracy now," Thierse told Bavarian radio on Monday according to Reuters. "I thoroughly support a change in the constitution, not in a rushed way, but after an intensive discussion on the matter."

That leaves open the possibility that Köhler could stop the early election campaign before it was really underway.

Court has last word

Another hurdle to a poll this September is Germany's Constitutional Court, which will have the last say over the matter. A few parliamentarians have threatened to take the issue to Germany's highest court, saying Friday's vote amounted to political theater since many parliamentarians voted against a government they clearly support.

German chancellors have used the confidence vote twice before to bring about early elections. Willy Brandt's majority in 1972 was threatened after several of his own parliamentarians joined the opposition in response to his policies of working for closer ties with East Germany.

In December 1982, Helmut Kohl made more constitutionally controversial use of Article 68 -- which allows for the confidence vote -- in order to strengthen his coalition of Christian Democrats and liberal Free Democrats (FDP) after the junior coalition partner FDP had switched allegiances from the Social Democrats to the conservatives.

That prompted a court ruling on the use of Article 68 to dissolve parliament.

"In its judgment, the court would certainly refer to its 1983 decision," said Christian Pestalozza, a professor of German constitutional law at Berlin's Free University. "The court...classified it as a crisis situation. But today the situation is not at all comparable."