SPD paper on defensive democracy: “all-round attack” against the right

The SPD actually wants to ban the AfD. But as long as there isn't even a ban procedure, the Social Democrats have many ideas about how democracy and the rule of law can be protected from authoritarian destruction. They summarized many of them in a policy paper on defensive democracy, which the parliamentary group presented in the Bundestag on Wednesday.

But the SPD is not letting up on the AfD ban either. The CDU/CSU have repeatedly stated that they believe a ban is the wrong approach, but the SPD is now hoping for the Bundesrat, which, alongside the Bundestag and the federal government, can also apply for a ban. In any case, the CDU Prime Ministers Hendrik Wüst (NRW) and Daniel Günther (Schleswig-Holstein) are ready to talk. So there is not much left to achieve a majority in the state chamber.

First, however, a federal-state working group should be set up “by the end of the year” to review the material, according to SPD parliamentary group vice-president Sonja Eichwede. If the material is sufficient, an application must be submitted to the Federal Constitutional Court to declare the AfD unconstitutional, Eichwede concludes, “that is then a political duty.”

The 19-page paper “Defensive Democracy – Arming our constitutional state against authoritarian attacks” was developed by the parliamentary group for months and discussed with around 40 organizations and experts. Next Tuesday it will be decided by the parliamentary group; the majority is considered safe. “This is a big all-round blow,” said Carmen Wegge, the SPD’s legal policy spokeswoman, with a certain amount of pride.

In this way, the Federal Constitutional Court should be further protected from obstruction. In the future, changes to the law on the Constitutional Court will only be able to be decided by the Bundestag with the consent of the Bundesrat. This could, for example, prevent a future authoritarian Bundestag majority from simply lowering the age limit for constitutional judges, meaning that many judge positions would have to be re-elected in one fell swoop.

At the end of 2024, the Basic Law had already been changed so that the AfD could not block elections to constitutional judges with a blocking minority. If there is no election with a two-thirds majority in the Bundestag, the Bundesrat can now vote, and vice versa. To protect the state constitutional courts, many state parliaments are planning similar replacement election mechanisms. But in places where the AfD already holds more than a third of the state parliament seats, constitutional changes are no longer possible without the AfD.

For such cases, the SPD parliamentary group is now proposing an amendment to Article 99 of the Basic Law. If it is proven that a state constitutional court is unable to function, its work should be temporarily taken over by the Federal Constitutional Court.

Following the EU model, financial sanctions should be introduced for federal states that do not adhere to constitutional standards, demands the SPD. For example, federal funding should be able to be withheld. However, Wegge emphasized that the SPD proposal has nothing to do with the proposal from CDU/CSU politicians to sanction Berlin for state financial equalization if a left-wing government there propagates anti-Semitism, emphasized Wegge; after all, the SPD proposal is not about financial equalization. The SPD domestic politician Sebastian Fiedler added: “There is a massive difference whether you take action against a possible AfD sole government in Saxony-Anhalt or against a government in Berlin in which the Left is just one player among several.”

As with all other proposals – from protecting the Bundesbank to banning training for extremist legal trainees – the SPD cannot implement anything on its own. It is always dependent on reaching an agreement with the coalition partner CDU/CSU. When it comes to proposals that affect the states, the federal government can sometimes not regulate anything at all, but can only make suggestions.