Judgment of 2 March 1977

Dissenting opinion of Justice Geiger to the Judgment of the Second Senate of 2 March 1977- 2 BvE 1/76 -

A.

176

I dissent from the majority view with regard to the concept and the line of reasoning set out in part C. of the reasons to this judgment.

I.

177

The dispute in the present proceedings does not concern the constitutionality of the Federal Government’s public outreach work, but the constitutionality of campaign advertising by the Federal Government in relation to the 1976 Bundestag elections.

178

There is therefore no reason to assess the constitutionality of the Federal Government’s public outreach work and its limits, especially because this is impossible without determining what ‘public outreach work’ of the Federal Government actually means. I will limit myself to noting that I consider the practice of public outreach work of the Federal Government – and this does not just apply to the incumbent government – and of some Land Governments to be incompatible with the requirement of using tax revenues frugally.

179

In the present case, the Federal Government’s public outreach work is only relevant to the facts of the case insofar as it can be an instrument of campaign advertising.

II.

180

The constitutional assessment must be preceded by some general considerations that apply to the delimitation of the matter in dispute and the method of addressing it:

181

1. The truism that the campaign for the next election, which will usually take place four years subsequently, starts on the day after the previous election may be correct insofar as it is relevant for the voters’ verdict how those elected, political parties, parliamentary groups, their leaders, ministers and the government conduct themselves during the entire parliamentary term. However, in relation to the present proceedings, the term ‘election campaign’ means something different: An election campaign takes place during the weeks in which candidates and parties compete in public for votes and seats ‘by all means’, make the case for their political programme and combat the programmes of their competitors. The ‘campaign period’ is sufficiently determined in the Federal Elections Act, which does not just set out time limits in §§ 17 to 19, but also provides that the ‘preparations for the election’ start with the Federal President’s determination of the election day. This formal determination of the campaign period is of great importance to delimit the time period for the matter in dispute.

182

2. The present proceedings only concern campaign advertising by the Federal Government, the Federal Chancellor and the Ministers, including the Federal Press Office, during the campaign period. Their influence on the campaign as constitutional organs is decisive. It is irrelevant to what extent a ministry, as the highest administrative authority, or a subordinate authority provide administrative assistance to citizens, for example when it comes to filling in forms, completing their tax returns or properly lodging an application, by providing information leaflets or printed instructions. That said, the Federal Government, the Federal Chancellor and the Ministers not only influence the election campaign when it is clear that publications were issued by them, but also when they prompt an authority within their sphere of responsibility to issue and distribute publications.

183

3. In election campaigns, political parties and candidates wishing to obtain seats in parliament use various methods (election rallies, public discussions, canvassing, speeches in parliament, press conferences, television appearances, advertisements in the press, radio and television commercials, posters, pamphlets, information material, gifts, personalised image cultivation; factual arguments, emotions, criticism of opponents, programmes, promises and not least the clever tricks of advertising experts, etc. etc.). The present proceedings only concern campaign materials that were produced using state symbols, images of ministers, ministerial prefaces that exploited the prestige conferred by ministerial office and were paid for with state funds.

184

4. Whether or not a certain measure is suitable as campaign advertising is not a proper criterion in this regard. Anything done in an election campaign has an effect, otherwise the parties, groups and persons competing in the campaign would not use it. In particular, it is not just the content of an advertisement or a pamphlet that is decisive – it may be objective or meaningless –, nor is it only the presentation – it may be considered to be unpleasant by one person and positively impress another. It may be simply the amount of paper handed to citizens that is decisive – this is the case where one party or group distributes such a volume of material that all the others simply have to follow suit so as to avoid the impression of being inferior.

185

5. It also cannot be claimed that certain types of campaign advertising are relatively insignificant on the grounds that, according to empirical studies, the voting behaviour of citizens is only influenced to a small degree by the means used by parties and candidates in election campaigns. It may well be true that campaign activities are almost irrelevant for the large majority of citizens – the so-called core voters; even for swing voters, campaign efforts may come to nothing since they take a long time to have an effect. Moreover, other measures – such as a spectacular political step or success of the government planned for the right time – may have a greater effect than any measure taken in the context of election campaigns. Precisely in light of these considerations and of the fact that relatively small changes in the vote from one party to another can change majorities in parliament, no activity of any group fighting for votes in an election campaign – no matter how small – can be trivialised as being irrelevant and negligible.

186

6. On the other hand, a dispute such as the present one cannot be about drawing a narrow-minded distinction where one specific activity financed from the state budget is deemed constitutional while another financed in the same way is deemed unconstitutional. The Federal Constitutional Court can only distinguish between constitutional and unconstitutional measures in this context by considering all of such activities together and concluding from their scale that the conduct of the Federal Government, the Federal Chancellor, the ministers and the Federal Press Office must be found to be either constitutional or unconstitutional.

III.

187

The practice of influencing election campaigns did not start with the Federal Government’s actions in the run-up to the 1976 Bundestag elections. The government’s conduct is preceded by a practice which could be observed in relation to almost all elections throughout the years, but which has become ever more sophisticated, drastic and extensive; this has now become a habit for those directly responsible. It is in no way generally welcomed by public opinion or by citizens. It has also been criticised in scholarship. This practice was already brought before the Federal Constitutional Court, including by way of an application in Organstreit proceedings (2 BvE 1/66) and an application for judicial review (2 BvF 1/66) lodged by the opposition in 1965/66; the proceedings were terminated when the applications were withdrawn. In light of this, it cannot be claimed that an uncontested constitutional practice has existed for years that could be relevant for assessing the dispute at hand. Constitutional principles cannot have undergone a change in meaning as a result, nor can a legal view have formed that could give rise to customary constitutional law.

IV.

188

The Federal Government’s attempts to influence the 1976 election campaign, which were challenged by the applicant, are impermissible for three separate constitutional reasons:

189

1. Under the Basic Law, any incumbent Federal Government is a constitutional organ appointed for a limited time, usually for the duration of the parliamentary term; this also applies to the Federal Chancellor and the Federal Ministers (cf. Arts. 63, 69(2) of the Basic Law). The Federal Government is not the government of a majority, but the government of the entire society organised as a state; in a democracy, it is the government of the entire people. If confirmation were needed in this regard, it follows from the wording of the oath that the Federal Chancellor and the Federal Ministers must take in accordance with Art. 64(2) and Art. 56 of the Basic Law.

190

It is incompatible with this role of the Federal Government in the Basic Law’s constitutional system that the Federal Government and its members, the Federal Chancellor or the Federal Ministers use their official role to campaign for their re-election during the election campaign. Yet this is what they do when they use press advertisements and brochures showing the federal eagle and the federal colours and stating ‘We are on the right track’ or when they use brochures with the same insignia to highlight their track record, achievements and successes so as to suggest that their re-election would be most beneficial for the state and for everyone.

191

In democracies, election campaigns are negotiations for political power between political parties and candidates that openly compete with one another; they are a struggle in which political ideas, objectives and programmes which, from the perspective of certain groups of society, should be realised in the interest of the state and the people and are presented to voters so that they vote for the group that they (most) agree with. It distorts such election campaigns if the people are not only confronted with the political forces campaigning for election, but the Federal Government, the Federal Chancellor and the Federal Ministers likewise lead their own campaigns for re-election.

192

The Federal Chancellor and the Federal Ministers may of course campaign for their party’s programme and objectives in election campaigns and try to convince citizens to cast their vote for this party and the candidates proposed by them. They are not precluded from highlighting their office within government and the achievements of the Federal Government as campaigners. Yet under constitutional law, members of Parliament remain representatives of the entire people in a multi-party state, regardless of which political party they depend on and are supported by, are not bound by orders or instructions and responsible only to their conscience (Art. 38 of the Basic Law). In the same way, constitutional law requires a distinction to be made between the Federal Chancellor and Federal Ministers acting for their party in an election campaign and the status of the Federal Government, the Federal Chancellor and Federal Ministers as a constitutional organ, which is not permitted to do the things that party politicians who happen to be incumbents may do in election campaigns.

193

2. The conduct of the Federal Government in the 1976 election campaign is incompatible with the constitutional principle of democracy (Art. 20(1) and (2) first sentence of the Basic Law).

194

Democracy under the Basic Law is based on the premise that the exercise of the highest state authority by political constitutional organs is directly and indirectly dependent on the people, and that the people scrutinise these organs, in particular through the fundamental act of political elections conducted at regular intervals. Such elections form the basis for the appointment of holders of state power in the political constitutional organs and determine whether government policies will continue or change and whether new political endeavours and ideas or the call for and support of new political programmes and reforms will be rejected. This is a continuous and open political process, which is constitutionally guaranteed by Art. 20(2) second sentence, Art. 21 and Art. 38 of the Basic Law.

195

This democratic process is only free and open if each political election – as an essential act – is determined by the different political forces among the people, which in particular create freely formed and freely competing political parties as their bodies of political action. Yet this means that under the Basic Law’s principle of democracy, elections are political acts of legal significance in respect of which the formation of the will must be free from targeted influence on elections by state organs. Official campaign advertising of the Federal Government, the Federal Chancellor and the Federal Ministers exerts immense influence ‘from the top’ in an act that in our democracy is designed as the start of a ‘bottom up’ process at the end of which the new leaders of the state are determined.

196

There are certainly indirect effects on citizens’ voting decisions, which are unavoidable side effects of the policies of the Federal Government, the Federal Chancellor and the Federal Ministers, and of their political tracts to realise the government programme; the personality of the Chancellor and the Ministers and the prestige and reputation of their office also have indirect effects on citizens’ voting decisions. This is not objectionable under constitutional law. However, it is objectionable under constitutional law that the Federal Government and its members deliberately use the respect of their office for campaign advertising; they are therefore barred from doing so. Especially ‘objective’ statements of the Federal Government and its members, made in their official capacity, in advertisements, brochures, leaflets and progress reports, which take a stance that is beyond party bickering, are particularly effective as campaign advertising for the parties supporting the Federal Government. Taking sides in an election campaign is not limited to activities that openly take sides, but also includes activities in which party advertising remains implicit because it can be expected that the advertising effect unfolds from the circumstances and context, or that it unfolds while voters not even notice that a publication constitutes advertising for a certain party.

197

3. The actions of the Federal Government in the 1976 election campaign are also incompatible with the constitutional principle of equal opportunities of political parties (Art. 21(1) and Art. 38 of the Basic Law), as developed by the Federal Constitutional Court in its established case-law.

198

When it comes to winning votes, the prospects of the political parties campaigning from the opposition are de facto not equal to the prospects of the governing parties. This must be accepted; it is to be expected. In light of this, even greater significance must be accorded to the requirement, arising out of the principle of equal opportunities, that anything that reinforces these existing inequalities be avoided (cf. BVerfGE 8, 51 <66 f.>). Supporting the so-called governing parties through the use of official authority, of government prestige and state symbols is unconstitutional in view of the principle of equal opportunities of political parties. The use of official resources, for instance the use of ministerial civil servants to create advertising brochures, draft campaign speeches and organise election campaigns, is another example of unconstitutional preferential treatment of the governing parties in election campaigns. Both considerations are also relevant to assessing the Federal Government’s conduct as challenged by the applicant. The fact that state funds are used to pay for campaign advertising that one-sidedly benefits the parties making up the governing majority is not the only aspect that is significant in relation to the constitutional principle of equal opportunities for political parties. It is, however, the central aspect.

199

The Federal Government had a large amount of election campaign material produced with funds from the state budget and used it itself or let others use it in the election campaign; the material one-sidedly or exclusively benefitted the governing parties. In particular, the Federal Government, including the Federal Press Office, let the governing parties use large amounts of the material produced by it (leaflets, brochures, progress reports etc.) for distribution free of charge; it was distributed to citizens for advertising purposes at party booths, campaign rallies and other events organised by these parties, in open advertising boxes and displays of these parties, as gifts from the candidates of these parties and in similar ways. The argument that this material would also have been available to the other parties on request does not hold up, as it was completely unsuitable for election advertising of the opposition parties. The governing parties thus one-sidedly received additional advertising to the tune of millions of Deutschmark funded from the federal budget that had been commissioned by the Federal Government. This must be considered in the context of the applicable framework on the reimbursement of reasonable election campaign expenses incurred by the parties from public resources (§§ 18 ff. of the Political Parties Act). This framework, in line with the principle of equal opportunities of political parties, grants a pro rata payment from the federal budget to all parties involved in the election campaign, which is sufficient to fund the election campaign if parties remain within reasonable limits. The provision of additional millions in the form of free campaign material to some of these parties – the governing parties – in the manner set out above evidently violates the constitutional principle of equal opportunities of political parties. This does not even take into account the fact that the Federal Government, including the Federal Press Office, can award contracts for the printing of advertising material to party-owned companies or companies affiliated with the party at government-specific market prices, and that these companies can then calculate the cost of the party’s orders for campaign material more cheaply in view of the profit made in this way, so that the party gets additional financial relief.

V.

200

The findings set out under IV. above give rise to the following conclusions:

201

1. Leaflets, brochures and progress reports of the Federal Government, the Federal Chancellor and the Federal Ministers (including the Federal Press Office) financed from the federal budget may not be used in election campaigns. It is irrelevant when they were printed and whether they were stockpiled for months or years before being used in an election campaign. It is also irrelevant whether they were directly handed to the governing parties or whether the parties received them via institutions, organisations, offices and citizens’ initiatives affiliated with a party or supporting it in the election campaign. Finally, it is irrelevant whether the government bodies hand out the material unsolicited or only upon request of institutions or individuals who wish to support the party in the election campaign; should they only be handed out following such a request, no different assessment is merited if a small fee is charged.

202

2. It is not sufficient that government bodies will refrain from influencing future campaigns for Bundestag elections in the way set out above. They must also ensure that materials the distribution of which outside of election campaign periods is in line with constitutional requirements will not be used by political parties for advertising purposes during election campaigns. This applies regardless of the fact that the political parties must also adhere to the applicable constitutional law. In the area of elections, which also includes party activities during election campaigns, political parties have been recognised by the Federal Constitutional Court as not yet constituted constitutional organs – although they are not incorporated into the constitutional state –, as entities provided for by constitutional law, which act within the constitutional order in the context of elections and whose activities extend into the field of statehood as set out in the Constitution. They are therefore bound by the law in the same way as the government and its members.

203

3. It is self-evident that – for the same reasons that the Federal Government is precluded from providing material to the political parties supporting it in a Bundestag campaign in the manner set out above, and to thereby take sides in this election campaign – the opposition parties, too, are constitutionally precluded from being supported in a Bundestag campaign by Land Governments affiliated with them or their political agenda.

204

4. The findings set out under IV. do not preclude the Federal Government from addressing citizens during election campaigns if it becomes necessary to provide information to citizens immediately, for example in case of an emergency or in relation to a political step for which the population is unprepared; it can use press conferences, radio and TV for providing such information. These channels can also be used to provide sufficient information on the contents of newly promulgated laws during election campaigns. Moreover, brochures and other means of providing such information can be prepared during the campaign period and distributed directly after the election, insofar as the frugal use of state funds does not mandate that the provision of such information be left to the professions, groups and organisations that safeguard the various interests of citizens in a democracy within a diverse and free society.

205

5. Although the limits set to the Federal Government’s activities during election campaigns as set out above are unequivocal in theoretical and systematic terms, it is unavoidable that certain doubts in individual cases will remain in practice. This is inevitable and must be accepted. It does not affect the constitutional review guided by the standard set out in II. 6.

206

6. Moreover, when it comes to compliance with or disregard of the constitutional limits for influencing election campaigns imposed on the Federal Government, political scrutiny is relatively effective: Campaign advertising, in particular attempts by the Federal Government to influence election campaigns in favour of the governing parties, occurs in public. Anyone can observe what means political parties use in an election campaign and if and how the Federal Government, including the Federal Press Office, the Federal Chancellor and the Federal Ministers influence an election campaign. Based thereon, public opinion can react.

207

Further, a government that fails to comply with constitutional limits puts the validity of Bundestag elections at risk (Art. 41 of the Basic Law, §§ 13 no. 3 and 48 of the Federal Constitutional Court Act). When the Federal Government and its members take sides in election campaigns, this can amount to such a serious encroachment on the process culminating in the election that it can no longer be ruled out that the election’s outcome would have been different without such encroachment, given that election results are usually relatively close. When such an election is challenged, the challenge must be found to be successful and the election must be repeated.

208

7. It is for the Bundestag to act upon the findings under IV. and V. 1. to 6. by adopting decisions on the Budget Act and enacting additional provisions, in particular to ensure that the constitutional requirements are enforced and cannot be undermined or circumvented. This may also include a framework requiring that the Federal Government publish, within short intervals, overviews of the brochures, leaflets, progress reports etc. it had produced with public funds, how many copies were printed, and through which channels and when how many copies were distributed. For the sake of transparency and scrutiny by the public, such a framework is very desirable […].

VI.

209

The foregoing considerations concerning Bundestag elections must of course also be applied to Landtag elections. In Landtag elections, the Land Government may likewise not use its official authority to influence election campaigns in favour of the governing party (or parties) with state funds and state symbols, just as the Federal Government may not use its official authority to support the opposition parties affiliated with it in such elections. This does not preclude members of a Land Government or members of the Federal Government from supporting, as party politicians, their parties in Landtag or Bundestag election campaigns as speakers at election rallies, press conferences or other events.

B.

210-211

[…]

212

Geiger

213

I concur with the above dissenting opinion.

214

Hirsch

Dissenting opinion of Justice Rottmann to the Judgment of the Second Senate of 2 March 1977 - 2 BvE 1/76 -

217

The Federal Government’s actions during the 1976 Bundestag election campaign as challenged by the applicant did not violate Art. 20(1) and (2) second sentence of the Basic Law (principle of democracy), and only violated Art. 21(1) first sentence and Art. 38(1) of the Basic Law (constitutional principle of equal opportunities for political parties in election campaigns) to a much lesser extent than suggested by the Senate majority’s findings. Ultimately, I cannot support the judgment’s finding of a violation of the applicant’s right to equal opportunities.

218

I do not concur with the Senate majority with regard to the restrictive standards derived from the principle of democracy and from the constitutional principle of equal opportunities for political parties in election campaigns for the Federal Government’s actions during a Bundestag election campaign, nor do I concur with the finding that any of the individual government measures in question here amount to unconstitutional violations of the applicant’s rights.

I.

219

In its judgment, the Senate majority bases its findings on a concept of parliamentary democracy that does not do justice to the structure of the Federal Republic of Germany as a multi-party state and also does not sufficiently reflect the constitutional practice that has existed since the establishment of the Federal Republic of Germany.

220

The democracy under the Basic Law is a multi-party democracy (cf. BVerfGE 4, 144 <149> with further references). Under Art. 21(1) first sentence of the Basic Law, the political parties have a position of legal privilege. They have the status of constitutional institutions and are recognised as bodies of political action, which are needed in today’s democracy in order to combine voters into groups capable of political action and thereby enable them to effectively influence state matters (BVerfGE 11, 266 <273> ; 24, 260 <264>). This means that, at least de facto, they have a monopoly on the establishment of the constitutional organs at federal and Land level. Without political parties, which in this context have also been called ‘organs of creation’ (cf. BVerfGE 1, 208 <225>), the appointment of the highest state officials would be impossible in modern mass democracies (BVerfGE 13, 54 <81>).

221

The multi-party state under the Basic Law has the following special features:

222

a) Political parties have a de facto monopoly with regard to nominating candidates for the Bundestag;

223

b) Political parties have a de facto monopoly in electing the Federal Chancellor;

224

c) The Federal Chancellor is always the chairperson or representative of the majority party or majority coalition in the Bundestag;

225

d) The Federal Ministers are, for the most part, members of the Bundestag and leaders of their parties; that is, they are party politicians.

226

[…]

227

e) As a result of this state structure under which the Federal Government is formed, the government is not a ‘neutral’ leadership body that is above the political parties. Rather, the Federal Government is also an executive committee of the governing party or of the governing coalition supporting it.

228

f) It is the Federal Government’s duty to serve the whole people and the entire state (Art. 64(2), Art. 56 of the Basic Law). Its actions are meant to promote and give effect to the common good. Yet it is controversial among the political parties and various social groups what acts serve the common good. Therefore, the judgment’s claim that the government has a duty to serve the common good and may therefore not take sides in election campaigns, i.e. that it must remain ‘neutral’ during election campaigns, is meaningless. The Federal Government does not determine the substance of the common good in politically neutral terms, which it then attempts to realise. Rather, as it has been formed in the multi-party democracy under the Basic Law, the Federal Government, in its daily work, can only seek to realise the electoral programme of the governing parties insofar as this programme has become the basis of the government’s programme. Since the electoral programme of the political majority, as one of several ideas of the common good, was met with the approval of the majority of the German people in the previous Bundestag elections, the parties constituting the majority were able to form a government and draw up a specific political programme for their electoral term. This programme, which has become the political programme of the government, is supported by the will of the majority of the people. The realisation of the programme of the majority parties and the government programme based thereon constitutes the realisation of the common good for the term of office of the government. The Federal Government is therefore not only required to base its government work on this programme, but also entitled to defend it against the parliamentary opposition, interest groups and associations in political debate. This also applies to campaign periods.

229

This, too, is a result of the principle of democracy in Germany’s multi-party democracy.

230

g) Bundestag election campaigns are not only about the composition of the new Bundestag, but also about the selection of a new Chancellor and a new Federal Government. Voters also decide whether the programme of the previous government, which is also the programme of the majority, should continue or whether the programme of the political opposition should be realised.

231

h) As this is the case, all Federal Chancellors and nearly all Federal Ministers since the establishment of the Federal Republic of Germany have influenced Bundestag election campaigns, not only in their capacity as parliamentarians and party officials, but also in their capacity as Federal Chancellors and Federal Ministers. They have deliberately and intentionally used their official authority and made extensive use of official resources for campaign purposes. This also included state funds for public outreach work.

232

This has been common practice in the Federal Republic of Germany for 28 years, both at federal level and in all Länder.

233

All Federal Chancellors and most Federal Ministers, regardless of which political party they belonged to, have sought to be re-elected as members of the Bundestag and to regain their previous state office in Bundestag election campaigns. […]

234

There was therefore absolutely no question of party-political neutrality on the part of the government during election campaigns.

235

i) This manifestation of our multi-party democracy, in which the Federal Chancellor and the Federal Government use their official authority to influence the election campaign with the help of accountability and progress reports and numerous political declarations of intent, supported by the government bodies responsible for public outreach work, is an essential and typical part of political life that has developed under the Basic Law. The Federal Constitutional Court cannot, without prior warning, change this practice by deriving constitutional principles from the Basic Law that it then claims have always limited the Federal Government’s actions. This runs counter to constitutional practice. In reality, in the almost 30 years of existence of the Federal Republic of Germany, political actors have not derived these limits on the Federal Government’s actions from the Basic Law. Ultimately, nobody knew about them. As a consequence, no Federal Chancellor, no Federal Government, no Bundestag and no political party has been guided by these limits that are purported to be required under constitutional law.

II.

236

1. Based on the aforementioned assessment of the structure of the multi-party state, the principle of democracy does not bar the Federal Government from siding with political parties, from standing for re-election and from campaigning for its re-election. This does not call into question the democratic principle of regularly recurring votes of the people.

237

In the multi-party democracy, a government can only be formed by the political parties. In casting their votes, citizens provide political parties with a temporary mandate to appoint a government. The political parties’ idea of the common good must primarily be realised through the government’s work, which turns the party programme or coalition programme into government action. Upon appointment, the Federal Chancellor and the members of the Federal Government do not become ‘neutral beings’, whose only duty is to serve the ‘objective common good’ and the ‘so-called state as a whole’ without any regard for the objectives and programmes of their party. Rather, they have the task of realising the political programme of the party or party coalition supporting them, which represents the majority of the people; this task arises from the very principle of democracy. The citizens have given them the mandate to do so through their votes in the previous Bundestag elections.

238

Ahead of new Bundestag elections, citizens therefore expect the Federal Government to publicise its achievements. This is one of the foundations of their future voting decision. Moreover, such publicity of government work also allows the opposition to specifically address the Federal Government’s claims, which is likewise part of the prerequisites allowing citizens to make a rational voting decision.

239

In constitutional practice, there are two alternatives: the re-election of the Federal Chancellor or the election of the candidate of the opposition. In this dualist system, there is no scope for a ‘neutral government’, including and especially in election campaigns.

240

Voters share this view. They do not distinguish between the Federal Chancellor’s appearance in the election campaign in his capacity as Federal Chancellor or in his capacity as party leader. The Federal Chancellor remains the Federal Chancellor, and the members of the Federal Government remain Federal Ministers. They may appear in public: they are always the head of government and members of the government, and all of their statements in campaign periods are necessarily linked in some way to the election and have some bearing on its outcome. This is inevitable and, in my opinion, a reflection of the principle of democracy; it can therefore not be prohibited with reference to the principle of democracy. The actions of the incumbent Federal Government are covered by the principle of democracy until the end of its term. It is not possible to split the Federal Chancellor and the members of the Federal Government into officials on the one hand, who are to be obliged to remain silent during an election campaign in view of the principle of democracy, and party politicians on the other hand, who may actively participate in the election campaign in order to again receive a majority of votes for the governing parties. Such a distinction would also disregard that the principle of democracy can de facto only be realised with and by the parties and that the vote is a decision on persons and programmes – the government and its government programme on the one hand and the opposition and opposition programme on the other.

241

The subjective presentation of the government programme by members of the Federal Government or through the Federal Government’s public outreach work is a corollary of the general duty to take action incumbent upon the Federal Government, which continues to apply during Bundestag campaign periods.

242

Based on these facts, which follow from the multi-party state under the Basic Law, it is not possible to take away political power from the Federal Government during election campaigns on the grounds of a different interpretation of the principle of democracy, while the parliamentary opposition, without any limitations, remains free to accuse the government of failure, political incompetence and intellectual confusion.

243

Therefore, I do not see how any limitations to the Federal Government’s actions in election campaigns could be derived from the principle of democracy.

244

2. I consider unlimited political activity of the Federal Government during Bundestag campaign periods to be permissible under the constitutional principle of democracy. Yet it is true that such unlimited activity might affect the equal opportunities of opposition parties in Bundestag campaigns to a greater degree than would be the case under the restrictions on such government activity imposed by the judgment.

245

I partly concur with the Senate majority with regard to the constitutional principles developed or repeated in part C II of the judgment, which serve to safeguard the equal opportunities of all political parties in Bundestag campaigns.

246

I agree with the judgment in that the right to equal opportunities of political parties in election campaigns is violated ‘where state organs take sides and influence election campaigns to the benefit or detriment of a political party or of candidates standing for election’. But I think that this standard requires further and different determination, and that the Federal Government did not diminish the electoral prospects of the opposition in the 1976 Bundestag campaign. I therefore cannot support the statements made in part C IV of the judgment regarding the specific limits to the Federal Government’s public outreach work in Bundestag campaigns.

247

I consider the standard of review developed in this respect to be much too narrow. In my opinion, it is not only the right of the Federal Government to conduct public outreach work and the right of political parties to campaign freely and without hindrance that must be balanced against one another. Rather, the conflict of interests arises from the right of political parties to campaign freely and the right to free elections on the one hand and the imperatives of government action and the full competence of the government until the end of its term on the other. The government has full powers to act until the last days of its term. This also encompasses all the usual public outreach work.

248

Insofar as government activity, including its public outreach work, makes the state visible to citizens, promotes it, informs citizens and thus fosters their integration, it is permissible without restriction. This also applies when an energetic government, active government policies and public outreach work that embellishes the government’s track record hinder the parliamentary opposition in an election campaign. It is obvious that it would be easier for the parliamentary opposition if the government did nothing, if it remained ‘neutral’ as called for by the judgment, as if it had already abdicated in view of the forthcoming election date. However, the parliamentary opposition has no legal right to such inaction on the part of the Federal Government. Equal opportunities of political parties in election campaigns do not encompass a right of the opposition parties to an inactive government, and especially not a government that refrains from conducting any public outreach work during the election campaign.

249

The limits regarding public outreach work imposed in part C IV of the judgment restrict the government’s general and comprehensive powers to act, accorded to it under constitutional law, which are unlimited even in campaign periods, to a degree for which I see no basis in the Basic Law. In striving to safeguard the equal opportunities of political parties, in particular opposition parties, in election campaigns, the judgment lost sight of the Federal Government’s leeway, which must in principle be upheld.

250

I would like to put forward the following detailed considerations regarding the limitations of the Federal Government’s public outreach work developed in part C IV of the judgment:

251

a) The Federal Government’s public outreach work is not generally limited by the federal division of competences between the Federation and the Länder. If the Federal Government considers that there are problems with the division of competences or in the spheres of competence of the Länder which ought to be changed in the interest of the state as a whole – either by amending the Basic Law or without such amendment –, it is authorised to publicly state this both outside and during Bundestag campaigns and to inform citizens through ‘public outreach work’.

252

b) Regardless of whether the matters addressed fall within the Federation’s sphere of competence, the Federal Government’s public outreach work is always permissible when its aim is to fend off attacks by regional or local authorities, political parties, associations or social groups against the Federal Republic of Germany or specifically against the Federal Government.

253

c) The Federal Government’s public outreach work during campaign periods can never be even close to neutral in terms of party politics given that the government programme is embedded in the programme of the governing parties. In election campaigns, any government activity will hinder the parliamentary opposition, unless the government does something that is evidently wrong.

254

These consequences of government activity and of public outreach work by the government are generally below the threshold of the protection afforded by the principle of equal opportunities of political parties, unless there are special circumstances in the individual case.

255

Nevertheless, there are inherent limits to official public outreach work, which are always applicable. These include, for instance, a general prohibition on disparaging the parliamentary opposition. This of course corresponds to similar conduct of the parliamentary opposition vis-à-vis the Federal Government. It is true that the language used by the Federal Government should always be the moderate language of a constitutional organ. However, the scope of allowable language considered appropriate may broaden if the opposition’s language vis-à-vis the Federal Government becomes rougher during an election campaign.

256

d) In my view, the fact that a government presents itself as a government made up of specific parties in its public outreach work (C IV 2 a) is not sufficient to diminish the electoral prospects of the opposition. This merely amounts to a – possibly superfluous – repetition of facts known to everyone. It may be advisable for future Federal Governments to refrain from pointing out this fact, but doing so is by no means unconstitutional.

257

e) In part C IV 2 a, the judgment provides an example for public outreach work that would be considered unconstitutional: the Federal Government’s clear expression of its intention to ‘remain in office’. Given that such intent corresponds to constitutional practice and does not run counter to the principle of democracy, I cannot accord any legal weight to it, including in view of the equal opportunities of political parties, provided that the Federal Government respects the actual end of its term of office.

258

f) In part C IV 2 b of the judgment, it is assumed that public outreach work is impermissible if print publications, advertisements and leaflets take a certain form, in particular when their advertising content outweighs their information content and they merely serve to promote members of the government.

259

I am also rather dismayed by advertising of this type and consider it to be difficult to reconcile with the standing of the state. However, it seems misguided to me to assume that precisely this primitive advertising could adversely affect the equal opportunities of political parties, and in particular of opposition parties, given that the effectiveness of this type of advertising with regard to voters is entirely unproven. Contrary to the applicants’ view, I think that precisely the contestability of this part of the Federal Government’s public outreach work has given the opposition a particular opportunity to better present its counter-points than it could have done without such aberrations in the Federal Government’s public outreach work. In any case, it cannot be concluded from the possible inferiority of such advertising – unsuitable for state purposes – that this type of public outreach work is unconstitutional. Whether the Federal Government should have refrained from publishing much of what it did in the 1976 Bundestag campaign for reasons of political style is an entirely different matter.

260

I do not consider the popularisation of the head of government and its members through the display of their images in official publications to be constitutionally relevant conduct of the Federal Government. It is only evident that the accountability reports of the various ministries show pictures of the competent ministers. I do not see why necessary information materials of the Federal Government could adversely affect the equal opportunities of the opposition parties in election campaigns simply because they show a picture of the competent minister. The Federal Government has followed this practice for decades and no one has ever seriously criticised it. The same practice is also followed by Land Governments formed by the applicant.

261

If something is to change in this respect, it falls to the political parties to agree on such changes. It is not for the Federal Constitutional Court to determine questions of political style.

262

g) In part C IV 3 a) of the judgment, the Senate majority considers a conspicuous increase in public outreach work in the run-up to elections to be unconstitutional.

263

It appears to me, too, that the Federal Government’s public outreach work has increased considerably in the run-up to the election. However, it has not been demonstrated that the Federal Government used more funds for public outreach work in 1976 than were allocated to it by the Bundestag. As long as the Federal Government keeps its public outreach work within the limits of the budget, I cannot conclude that an increase in public outreach work in an election year alone is capable of adversely affecting the equal opportunities of political parties.

264

Finally, I do not agree with the judgment at all when it finds publications of the Federal Government – be they government reports, accountability reports, information publications on legislation that entered into force at the end of the parliamentary term – to be unconstitutional even though they are not objectionable in terms of substance and form, merely because they are published during campaign periods and therefore necessarily affect the equal opportunities of the opposition parties in election campaigns. This constrains the government’s leeway in an intolerable manner and without compelling grounds. The judgment presumes – without any proof – that lengthy government and progress reports, which are in part very difficult to read and which essentially address only a small number of voters and are read by an even smaller number, could affect the electoral prospects of the opposition. I do not concur with this assessment as I find it far-fetched.

265

The restriction placed on the government’s powers to act becomes completely unacceptable if the point in time from which such publications may no longer be published is set to the day on which the Federal President determines the date of the Bundestag election. This would mean that approximately half a year before the Bundestag elections, even the provision of necessary and high-quality information by the Federal Government, and thus an aspect of the presentation of the state in public, would be prohibited due to the theoretical possibility that providing such information might diminish the electoral prospects of the parliamentary opposition.

266

I also do not concur with the view that the Federal Government may in principle no longer distribute print materials etc. to organisations and political parties; I will address desirable limitations in the following.

III.

267

Part C V of the judgment only appraises some of the Federal Government’s advertising materials distributed in the Bundestag campaign and submitted to the Court by the applicant.

268

1. The Senate majority considers the large-format advertisements that appeared twice weekly in 10 major daily newspapers between 18 May and the end of June 1976 and the advertisements published in the magazines Der Spiegel and Bunte to be unconstitutional on the grounds that they affect the electoral prospects of the opposition.

269-274

[…]

275

I, too, for a variety of reasons, consider this part of the Federal Government’s public outreach work during a Bundestag campaign to be misguided, unworthy of a state and unprecedented, at least in this form, on this scale and in the Federal Republic of Germany. Yet given my above-mentioned view regarding the Federal Government’s powers to act, I cannot regard these measures as unconstitutional, even in campaign periods. I think it would be advisable for the Federal Government to no longer publish advertisements of the type in question in future election campaigns. However, I cannot find such advertising measures to be unconstitutional, as I do not see how this primitive political advertising could influence elections.

276

2. I consider the publication of policy, progress and performance reports by the Federal Government, provided that they are matter-of-fact, to be permissible at any time, including during election campaigns. The Federal Government is not constrained under constitutional law when it comes to choosing the time of their publication. The opposition has to put up with this expression of the Federal Government’s freedom of action.

277

3. The party-political tinge of official government materials, which in my view is inevitable, only becomes a problem once the Federal Government uses large amounts of these materials in campaign periods through the parties supporting it and has these parties distribute it.

278

The opposition parties cannot use this material, either because they have a different political programme or see the government’s work differently, or because they do not wish to use it as they do not want to disseminate the images of the members of the government. The publications are therefore only suitable for use in the campaign of the governing parties , which thereby receive support in addition to the reimbursement of campaign expenses. In this respect, the situation does indeed affect the equal opportunities of political parties in election campaigns. This also applies when such government material is used as advertising by candidates for the Bundestag with their own image printed on it. In this regard, I concur with the judgment.

IV.

279

I thus consider the predominant share of the Federal Government’s public outreach work during the 1976 Bundestag campaign as permissible under constitutional law. Any publication of the Federal Government necessarily affects the electoral prospects of the opposition parties in some way. While it is certainly necessary to distinguish between the interests of the government and the interests of political parties in election campaigns, the judgment imposes one-sided limits on the Federal Government. This makes it overly difficult for the Federal Government to fulfil its task of representing the state in public, presenting, explaining and popularising government policy, and to fend off attacks of others against the Federal Republic of Germany and the Federal Government.

280

Essentially, the massive distribution of government material to the governing parties for use in the Bundestag campaign appears concerning to me.

281

Nevertheless, I voted against the Senate’s decision in this respect, too. The judgment derived limitations from the Basic Law that are new to everyone involved in constitutional practice and which have not been known and observed until now. In my view, it would therefore have been appropriate for the Senate to refrain from finding that the Federal Government acted in breach of constitutional law in the 1976 Bundestag campaign; the Senate should instead have rendered a decision that would have warned the Federal Government and announced the new restrictions regarding its public outreach work for future campaign periods so as to enable the government to observe these limits in the future. Yet even then, it would have been necessary to make clear that the Federal Government in principle retains its full power to act until the end of its term, including with regard to its public outreach work, and that in doing so, it must merely take into account the constitutional principle of the equal opportunities of political parties in election campaigns.

• Rottmann