Thüringen – Keine Ahnung vom Bundesrat
Once again, the CDU faction in the Thuringian state parliament is attempting to distinguish itself from the red-red-green state government. This time, they are using the so-called Heating Law of the federal government and trying to capitalize on the emergency decision of the Federal Constitutional Court. We remember the last working week of the German Bundestag before the parliamentary summer break. It ended with a bang. In an expedited procedure, the Federal Constitutional Court halted the planned adoption of the controversial „Heating Law,“ also known as the Building Energy Act (GEG). The second and third readings of the law could no longer be conducted during the current session week.
The first reading of the original government draft for the amendment of the GEG, the amendment of the heating cost regulation, and the amendment of the chimney sweep and inspection regulation (BT-Drs. 20/6875) took place in the Bundestag on June 15. On June 21, the leading committee for climate protection and energy held an expert hearing. Subsequently, the traffic light factions presented a „drafting aid“ from the Ministry of Economy and Climate Protection for an amendment proposal to the government draft to the Bundestag on Friday, June 30. It includes a 94-page synopsis of the government’s bill and the proposed amendments, as well as a 14-page explanatory section.
These proposed changes were the subject of a second expert hearing by the Committee on Climate Protection and Energy on Monday, July 3rd. After the coalition factions presented a comprehensive amendment proposal on Tuesday afternoon, July 4th, the government-supporting factions decided with their majority to adopt the amended bill on Wednesday, July 5th, 2023, before the Federal Constitutional Court made its interim decision.
On July 7, 2023, the Bundesrat also held a session parallel to the German Bundestag. The original plan was to vote on the Building Energy Act in the Bundesrat if it had been passed by the German Bundestag. Two months prior, the Bundesrat had extensively discussed the government’s draft law in its 1033rd plenary session.
The five speakers mentioned in the Federal Council meeting – the Prime Ministers of Bavaria and Saxony-Anhalt, the Prime Minister of Mecklenburg-Vorpommern, as well as the two state ministers from Thuringia and Brandenburg – criticized both a number of substantive aspects of the draft law and, across party lines, the haste of the legislative process. As a speaker from Thuringia, I stated that despite understanding the need for urgent action and prompt decisions, a large number of laws are expedited to the Federal Council. This deprives the states in the federal concert of the opportunity to address the specific effects of federal laws on their respective states. Therefore, it is not only about bringing together the diverse political interests in a politically diverse Federal Council, but also about specific state interests.
This is the normal process, as when the federal government wants to change or introduce a law, the Chancellor must first submit the draft law to the Federal Council. The Federal Council then usually has six weeks to provide a statement, to which the government can respond in writing. After that, the Chancellor forwards the draft with the statement to the Bundestag. An exception to this process is the budget law: Here, draft laws are sent to both the Federal Council and the Bundestag simultaneously.
In the case of the GEG, the Federal Council submitted its statement on the draft law to the Federal Government in a twelve-page document (BR-Drs. 170/23). The Federal Government then had to formulate a counter-statement and submit both to the Bundestag. However, considering the significant public interest, the multitude of detailed regulations, and the escalating criticism, they could have certainly used the six-week consultation period of the Federal Council to informally update the members of the Bundestag. However, it is not a failure for which the Federal Council bears responsibility that they did not do so.
On Wednesday, July 5th, not only did the Climate Committee of the Bundestag deal with the draft law on heating regulations, but even the so-called Permanent Advisory Board of the Federal Council also dealt with the draft law. The Permanent Committee, regulated in § 9 of the Rules of Procedure of the Federal Council, corresponds in its function to the so-called Elderly Council, which is responsible for matters related to the preparation of sessions in the German Bundestag and the state parliaments. It takes care of matters of fundamental importance for the Federal Council and has important information and coordination tasks to fulfill.
The Permanent Committee is composed of the representatives of the states at the federal level, who, with few exceptions, are not voting members of the Federal Council. The advisory board meets regularly once a week and usually convenes a few hours after the meeting of the federal cabinet. Through their representatives, the federal government has the opportunity to identify the views of the Federal Council on legislative matters early on and to advocate for their own goals and intentions.
During its meeting on July 5, 2023, the members of the Permanent Advisory Board had a controversial discussion about including the Building Energy Act as an agenda item for the 1035th plenary session of the Federal Council. According to the „Tagesspiegel,“ the representatives of the CDU-led states, which have a majority in the Federal Council, advocated not including the so-called Heating Law on the agenda of the plenary session. Due to the fact that the representatives of the states led by the Union were allegedly not complete and the representative of the green-black governed state of Baden-Württemberg was supposed to abstain, the draft law was included in the agenda of the Federal Council, subject to approval by the German Bundestag. The agenda itself will be decided at the beginning of each plenary session of the Federal Council.
As a result of the urgent decision of the Federal Constitutional Court, the treatment of the GEG was canceled in July 2023. The Bundestag has since made a decision, so the decision-making in the Bundesrat is expected to take place on September 29. The state governments usually determine their voting behavior in the cabinet meeting before the Bundesrat session. This usually happens on Tuesday or Wednesday of the last week of September. Final votes, except in Saarland, often take place on Thursday evening after separate voting rounds based on party colors, known as the „Kaminen“ of CDU/CSU, SPD, Greens, and Left Party, before the Bundesrat session on Friday.
The matter could have ended there. However, the CDU faction in the Thuringian state parliament evidently does not care about these facts. They submitted a motion (LT-Drs. 7/8363) to the parliament, which was not only poorly crafted but also aims to instruct the state government to reject the heating law in the Federal Council. One can view this politically and therefore demand it. But the Thuringian CDU, as has often been the case recently, combines their motion with a political mission.
The request there is sloppy, where the Thuringian CDU faction claims that the urgent request was introduced by the CDU faction in the German Bundestag. This is incorrect in several ways, as the urgent request was made by Berlin Bundestag member and former Justice Senator Thomas Heilmann, who is a member of the CDU/CSU parliamentary group. The Thuringian CDU faction casually omits that 11 other members of the AfD have joined Heilmann’s urgent request.
The argument in paragraph 1 of the state parliament proposal is incorrect. The approval in the Permanent Advisory Board for the government’s request to shorten the deadline was intended to „allow a process that, according to the decision of the Federal Constitutional Court on July 5, 2023, irreparably violates the participation rights of the German Bundestag and reduces the members of parliament to mere rubber-stampers.“ This wording demonstrates a significant lack of understanding of the relationship between the constitutional organs of the federal government, German Bundestag, and Bundesrat, but rather seems to be intentional ignorance.
The proposal, which aims to criticize the state government, fails to recognize that the consultation periods of the Federal Council, which the Permanent Advisory Board has the authority to shorten, are not intended to protect or restrict the rights of members of the Bundestag, but solely the participation rights of the Federal Council. These are two completely different things. The responsibility for the short consultation periods in the Bundestag lies solely with the traffic light factions, not with the Permanent Advisory Board of the independent constitutional body, the Federal Council, which serves as a second chamber.
Das Bundesverfassungsgericht (BVerfG) stellt in Rz 79 seines Beschlusses ausdrücklich fest: „Der Erlass der einstweiligen Anordnung hat zwar zur Folge, dass der Entwurf des Gebäudeenergiegesetzänderungsgesetzes in der laufenden Sitzungswoche (27. Kalenderwoche) nicht in zweiter und dritter Lesung beraten und beschlossen werden kann. Damit wird aber nicht zugleich über den weitergehenden Feststellungsantrag in der Hauptsache entschieden und insbesondere keine erst dort zu prüfende Verletzung der Abgeordnetenrechte des Antragstellers festgestellt.“
It states in paragraph 89: „The Senate has not yet decided on the implications of the principle of equal participation of members in the parliamentary decision-making process for the design of legislative procedures (see Federal Constitutional Court, judgment of the Second Senate of January 24, 2023 – 2 BvF 2/18 -, para. 92).“ And it concludes in paragraph 92: „Due to the special circumstances in the conduct of the disputed legislative procedure, it is necessary to further examine whether the exercise of procedural autonomy by the parliamentary majority has adequately taken into account the constitutionally guaranteed participation rights of the applicant.“ Further details are then provided in paragraphs 94 and 95, taking into account a balanced perspective.
Although it can be assumed that the Federal Constitutional Court (BVerfG) is likely to follow the essence of its interim decision, the CDU faction in the Thuringian state parliament is preempting a decision by the highest court in Germany through a proposed parliamentary resolution, even though the main decision has not yet been made. This utilization for partisan competition does not demonstrate respect for judicial independence.
However, it remains within the logic of political argumentation and action of the Thuringian CDU, which I have already referred to as a deterioration of political discourse in the style of the US „Tea Party“ in other cases (see here and here), that they bear significant responsibility for the decline of the Republicans and their surrender to Donald Trump. The CDU faction in the Thuringian state parliament formulates their request regarding the GEG and their call for the state government to reject the law until „all other elements of state intrusion and paternalism have been removed“ once again in the classic vocabulary of Tea Party rhetoric.
In an article titled „Authoritarian Rhetoric: The People and the Elites“ published in FAZ on September 13, 2023, Claudius Seidl expresses the following: „When politicians and opinion makers no longer rely on the coherence of their arguments, the legitimacy of their interests, or the plausibility of their assumptions; when instead they proclaim that they speak for or through the people: then dissent becomes impossible. In such cases, the rhetoric is already authoritarian.“
The Thuringian CDU continues to slide further down the slippery slope it has been on for some time now, and continues to fall short of its responsibility for the Free State.