Fake News, Backlash and the Rise of the German Populist Right – An Update on German Developments

–Michaela Hailbronner, Postdoctoral Fellow, University of Münster, Germany

In the last few years, foreign observers have increasingly looked to Germany and Angela Merkel as potential new leaders of the free world. Rich, democratic and equipped with a strong belief in the Rechtsstaat, Germany has seemed a bastion of liberal democracy at a time when others are increasingly in crisis.

The 2017 federal elections cast some shadows on this sunny picture. A new populist right-wing party, Alternative for Deutschland (AfD) won a substantial 13% of the vote. This ensured not only its representation in the federal parliament (clearing the five percent threshold for obtaining seats), but also made it the third strongest party in that body.

A year after the AfD’s entry into Parliament, how do things stand? Does the picture of Germany as a bastion above the crisis still hold?

I’m not here offering a comprehensive response. Instead, this is an update. I describe developments for those not closely observing the German case and attempt to connect the German to the broader global stories debated here and elsewhere.

First, what has happened since the 2017 federal elections?

In brief, rather than uniting against the populist right, the established parties have disagreed how to handle the new challenge of a populist right wing opposition. Coalition-building for the federal government became difficult when the FDP (a former old-style European liberal party, now mainly pro-business with an otherwise unclear agenda) withdrew from negotiations. The result, another grand-coalition of Merkel’s CDU with a Social Democratic party whose leaders had previously vowed not to work with Merkel again, pleased no one. Meanwhile, the right-wing AfD has managed to drive and determine public discourse over the last year, dominating the debate about how to handle immigration and keeping that issue in the headlines.

How to respond to the AfD is contested. A recent debate about whether to remove Maassen, the now-former head of the German Verfassungsschutz (constitutional protection agency) illustrates that disagreement. In office, Maassen had not only repeatedly criticized Merkel’s immigration policies in public, but also denounced press reports about right-wing groups chasing immigrants as unfounded fake news. (The protests began after a German citizen was killed, possibly by an immigrant; they turned into mass right-wing demonstrations during which at least some protestors gave Hitler salutes and attacked foreigners and journalists verbally and in some cases physically.) After several weeks of protracted negotiations, Maassen has now been removed as head of the agency but transferred to the Ministry of the Interior, headed by the chief of the Bavarian CSU. (The CSU is an independent party, though it is a permanent alliance with the CDU whom it replaces in Bavaria. It is part of the governing coalition, and has responded to the AfD’s rise largely by adopting their positions). According to the latest polls, the AfD’s national support now stands at 18 percent, second only to Merkel’s CDU.

What should we make of this? In spite of the recent rise of the AfD, 76 percent of those questioned in a recent poll perceive the extreme right as a big threat to German democracy. This makes it unlikely that the AfD will have anything close to federal majorities any time soon. But its current numbers are nevertheless substantial, and while they are strongest in former Eastern German states, are not confined to those states either. All things considered, it seems increasingly likely that the AfD and its supporters will become a longer-term feature of German politics.

The current German legal debates focus mainly on questions of inclusion versus exclusion. A current issue of controversy, for example, is whether the Verfassungsschutz, a relic of postwar Germany which has investigated a number of both right- and left wing as well as Islamic organisations in the past, should investigate the AfD for its constitutional loyalty. Such an investigation primarily makes sense if we think that the German Constitutional Court might declare the AfD unconstitutional following an investigation. This is debatable, but ultimately unlikely, given that the AfD seems to be careful not to advocate certain positions too officially and openly (and given that evidence-gathering is also difficult, as the NPD saga demonstrated). This offers support to arguments made by David Landau, Tom Ginsburg and Aziz Huq and others that today’s authoritarian forces come in different, more legal-looking guises and the old tools of militant democracy are therefore ill-suited to combat their rise.

Another subject of controversy is whether the AfD should be able to participate in the consensus-based selection of judges in certain constitutional courts at state level and the Federal Constitutional Court (for a German discussion, see Hein). Since appointment to the Constitutional Court requires a two-thirds majority (in the federal parliament or the German second chamber) as a matter of statutory law, the major parties have to agree on candidates. This has led to a compromise that gives roughly proportional representation on the bench to Christian and Social Democrat choices and occasionally the Green Party and the FDP. This process has worked well for Germany so far, encouraging the selection of candidates not prone to extreme political views and thus supporting the Court’s independent authority. If current political trends continue, however, it seems likely that the Left and the AfD together will have the necessary numbers to veto the selection of candidates after the next federal elections. This then raises the question if one or both of them must be included in the compromise and accordingly get their own slots on the bench – or if the long-standing compromise process will collapse under the strain.

Debates have also arisen over the meaning of state neutrality where state officials have spoken out in public against the AfD. The German Constitutional Court has just recently reaffirmed officials’ duty of restraint in a case against a former federal minister He had issued a press statement entitled “red card for the AfD”, criticizing a public event of the party. Neutrality and independence are similarly at issue where vocal AfD supporters themselves occupy public offices – again, courts have been involved and have in some cases removed outspoken AfD supporters from their office where their actions seemed to threaten the independence of their positions, as in the case of judges and prosecutors.

Among the most troubling developments of the last year is the increasing polarization of German politics. That polarization is driven first by the AfD itself, whose agenda is at least in part beyond the realm of previously acceptable political positions, including seeking to ‘overcome’ the postwar German emphasis on engaging with National Socialism. It is, however, also driven by the above-mentioned disagreement about how to handle the AfD and the threat it poses (if we assume the friendliest reading of in particular the Bavarian CSU’s actions during the last year). There is, of course, nothing wrong with robust disagreement. However, where polarization is sufficiently strong – as it currently seems in the US –, making the opposition appear not as a less appealing alternative but as the enemy, it risks damaging democratic institutions and the rule of law (see also the important work on identity-protective cognition by Dan Kahan).

Signs of these detrimental effects of polarization may already be apparent. During the last year, several cases on non-compliance with judicial decisions have been reported by the German media. In one widely debated case of Sami A., a possible former bodyguard of Bin Laden, state agents deported Sami A., ignoring a last-minute judicial order stopping the deportation. In another case, a municipality refused for some time to comply with an injunctive order of the German Constitutional Court to make its town hall available for a Neo-Nazi party (NPD) assembly. These (and a few other) cases do not sit well with Germany’s law- and court-abiding post-war understanding of what it means to be a Rechtsstaat. Meanwhile, right-wing populists, including members of the Bavarian CSU increasingly challenge the meaning of key legal and political concepts that have long been treated as above the political fray. They have e.g. described Merkel’s opening of the German borders to refugees as a ‘reign of injustice’ (a term generally used to describe Nazi Germany) and described protests and disobedience of asylum seekers resisting deportation by the police as a crisis of the Rechtsstaat.

What are the immediate lessons for German public lawyers? Institutionally and legally, Germany seems relatively well positioned to fight off populist challenges of erosion thanks to its well-working parliamentary system, a strong bureaucracy and popular and independent constitutional court. Though Germans will do well to study their European neighbors with longer experiences of right-wing populism, the challenge of the moment is perhaps to keep a cool head in spite of the AfD’s rise, and reaffirm existing constitutional commitments. Given the risks inherent in polarization, we should think about dialing back partisan rhetoric on both sides of the aisle. We will continue to disagree of course, but it is perhaps a time to consciously save our moral and professional outrage for those developments and arguments that truly deserve them. For the latter are increasingly on the table, too, and it is important to distinguish them from our everyday disagreements and debates and to remember that our ability to respond to them ultimately rests on the institutions that a general, reflex polarization can undermine.

Suggested Citation: Michaela Hailbronner, Fake News, Backlash and the Rise of the German Populist Right – An Update on German Developments, Int’l J. Const. L. Blog, Oct. 14, 2018, at: http://www.iconnectblog.com/2018/10/fake-news-backlash-and-the-rise-of-the-german-populist-right-an-update-on-german-developments