Populist Parties - How Democracies Can Legally Protect Themselves

This article was first drafted in December 2022 and has since been updated on a rolling basis on the careful and critical legal handling of the populist party AfD in Germany. It summarizes current significant incidents in the party's radicalization and process towards unconstitutionality. This report also explains and discusses the legal means of encountering this radicalization process. On the international level, it sheds light on the EU level and how players on the European level deal with AfD. Finally, it concludes that a party ban evolved on the national level is a risky but realistic option in order to protect the fundaments of democracy.

 Source: https://www.zeit.de/2024/04/afd-parteiverbot-demokratie-schutz-rechtsextremismus/seite-2

Incidents in the Process of Radicalization

In the party's first years, the party, its members, and its voters were critical of mainstream politics in Germany but did not endanger or threaten the democratic foundation. Over the past years, this position has changed. Leading party members have radicalized. They publicly expressed statements investigated by the Federal Office for the Protection of the Constitution (Verfassungschutz). Several party members have close ties to individuals or the whole network of Neo-Nazis who are already investigated against and, in some cases, even convicted of threatening the German Basic Law and democratic principles. A significant part of its electorate is not opposed to violence or the party's radical and unconstitutional ideas. On top of these observations, several incidents of structural extremism in the AfD party give reason to examine the party regarding its constitutionality critically.

Police raids conducted on December 7, 2022, disclosed an extremist terror network in Germany. As subsequent investigations have shown, the network extended throughout German society, democratic institutions, and political parties, particularly the Alternative für Deutschland (AfD). With their plans and ambitions to overthrow the German state, the terror network threatened the democratic order.

In January 2024, a team of investigative journalists published an article about a secret meeting between high-ranking AfD politicians and Neo-Nazis, among other things discussing plans to "re-migrate" Germans with migration backgrounds.

As a result of these events, German authorities must discuss different options for defending democracy and the constitution against these extremists' unconstitutional ambitions. An AfD party ban is under consideration. However, as of now, the use of intelligence is preferred over a party ban in order to protect the Constitution.

Two Popular Incidents: Background and Context

About 25 suspects were arrested during the raids in 2022. However, the Reichsbürger movement, the fundament of this network, is estimated to have up to 21,000 members (Heflik 2022). Even though there is no direct evidence of cooperation between the Reichsbürger movement and the AfD, the connection of the movement's central leaders to the party, as well as the AfD's ideological proximity, should be alarming. In particular, the role of Birgit Malsack-Winkemann has to be considered as an example and taken into account (Oltermann 2022).

Malsack-Winkemann is a judge and former MP for the AfD from 2013 to 2017.  As a judge and politician, it is her obligation to protect and defend the constitutional order. Following the investigations, she misused her power and resources, which were provided by the democratic system, in order to preserve this system in the first place. Instead, she exploited her power and disclosed confidential information to a terror network, harming the constitutional order. Thus, she had and took advantage of the opportunity to endanger democracy through various channels, exploiting her role as judge and politician.

On a similar basis, the second incident in 2024 must be evaluated: the secret meeting near Potsdam discussing unconstitutional policies inspired by ideologies of the Third Reich. The participants included AfD members, followers of the Identitarian movement, nationalist student fraternities, and individuals from middle-class professions like doctors, lawyers, politicians, and entrepreneurs. Two members of Germany's CDU, associated with the conservative Values Union association, were also present.

The most important figures included Gernot Mörig, a retired dentist and longtime figure in the German far-right scene, and Hans Christian Limmer, a wealthy investor who facilitated the event. Regarding the AfD, Alice Weidel's personal aide, Roland Hartwig, must be mentioned, who played a significant role in the AfD's involvement.

During the meeting, they discussed and promoted a concept of "re-migration," which involved forcibly deporting individuals from Germany based on racial and ethnic criteria, regardless of citizenship. In this context, Martin Sellner, a prominent figure in the far-right Identitarian movement, presented a "masterplan" for re-migration, targeting asylum seekers, non-Germans with residency rights, and non-assimilated German citizens. Discussions also included ways to influence public opinion, manipulate elections, and challenge democratic institutions through legal and metapolitical strategies.

AfD Reaction and Constitutional Handling

As the attempted coup was discovered in 2022, the AfD distanced itself from Malsack-Winkemann and her criminal activities. However, the party publicly and officially promoted and supported her for several years and even recommended her for a higher office in a regional authority only a year before (Tsp 2022). Similarly, also after the publication of the secret meeting in 2024, the AfD denied all the allegations and its connection to the far-right extremists and networks, despite the comprehensive research proving the connections.

These incidents illustrate a political positioning which notably contradicts two statutes of the German Basic Law (Grundgesetz Für Die Bundesrepublik Deutschland 1949):

"[The political parties] internal organization must conform to democratic principles." Art. 21 (1), Basic Law of the Federal Republic of Germany

"Parties that, by reason of their aims or the behavior of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional." Art. 21 (2) Basic Law of the Federal Republic of Germany

Caused by unwillingness, incompetence, or a combination of both, the AfD cannot fully fulfill the constitutional demands nor commit its members and supporters to the democratic order. In response, democratic authorities must take action and eliminate this threat emanating from the AfD.

Source: https://www.bundestag.de/webarchiv/textarchiv/2014/kalenderblatt-279526

Three Options to Deal with AfD

The German democracy offers several options to defend its constitution against its enemies. In the following, three possible measures are presented (Droste 2007).

Case of Inspection

The Federal Office for the Protection of the Constitution has the option to categorize political parties, parts of them, or individual members as cases of Inspection. To this end, the Federal Office investigates the party's extremist ambitions but is allowed to use public resources only. The AfD has already fallen into this category since 2019/20.

Case of Suspicion

If the inspections with public resources could prove extremist ambitions, the Federal Office has the option to categorize a party as a Case of Suspicion. In this category, personal data storage, V-men, and further measures of intelligence are allowed. In the case of the AfD, this categorization happened in 2020/21.

Party Ban

The party ban is the hardest and most burdensome measure the German constitution provides for constitutional protection. In the history of the Federal Republic of Germany, only two parties were banned (SRP-Verbot 1952; KPD-Verbot 1956). A ban on the National Democratic Party (NPD), an openly racist party, has recently failed in two attempts (Knight 2017).

Since the first two actions were already taken and implemented, the evaluation focuses on the subsequent escalation by imposing a party ban. As a first step, constitutionality and, therefore, the feasibility of the party ban are discussed. As a second step, the advantages and disadvantages of such action are evaluated from a philosophical-moral and a social-political perspective.

Constitutionality and Proportionality

As the article's introduction touched upon, the source of the current network's threat cannot be pinned on the AfD directly: Even though some connections between the terror networks and far-right organizations and the party are discovered, there is no real complicity of the whole party, nor a direct causal link in responsibility for the events. Hence, a party ban is hard to justify. Such a constitutional justification in the AfD case is improbable compared to the most current and famous case of party ban: The German Federal Court of Justice did not ban the National Party Germany (NPD), not in the first nor in the second attempt (Knight 2017).

Using the NPD case as a measure for comparison, there are two critical factors to consider for proportionality: the parties' constitutionality and the parties' relevance. While the NPD openly commits to Nazism and anti-constitutional ideology, the AfD does not. Since, in the NPD case, even a sincere commitment was not sufficient for a party ban, the AfD's hidden anti-constitutional ideology will not be a fortiori. However, the parties differ in their relevance. Whereas the NPD is considered too irrelevant according to its election results and its relevance in politics, the AfD gained significance and political power. For this process, the EP election results are the latest proof.

With the words of the German court's top judge, in the case of AfD, one could suggest sufficient "weight of evidence to make it appear possible that their behavior will result in success "(Knight 2017). Its relevance and power in German politics are indisputable regarding the party's electoral success as the second-strongest party in the German EP election.

Still, the right timing of a party ban is crucial: The AfD was the strongest power, with almost a third of the votes in some regions. However, they do not hold governing power in the Bundestag or any regional parliament. Nonetheless, banning the party could be considered anti-democratic. Basically, this action would still result in excluding a democratically legitimated party. Thus, a party ban sets precedence for restrictive action in a democratic system and, hence, represents an, at the core, undemocratic action.

Moral and Political Perspective

If a constitutional justification for an AfD party ban exists, the possible implications of this action should be evaluated from different perspectives.

From a philosophical-moral perspective, a democratic state should act as a role model and not negate its demands by attempting self-protection. This includes scholars like Loewenstein:

"Democracy stands for fundamental rights, for fair play for all opinions, for free assembly, press. How could it address itself to curtailing these without destroying the very basis of its existence and justification?" (Loewenstein 1937)

Opposing this argument, militant democracy has the right and the obligation to set boundaries. This idea reconciles with Popper's claim of intolerance to protect tolerance.

"Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them" (Popper 2011).

From a sociological-political perspective, a party ban could convey false security: With an AfD party ban, institutions and society could run the risk of overseeing constitutional threats across party lines. Considering the spread of the Reichsbürger movement mentioned before, this is a serious risk to consider. On that note, a party ban could lead to evasive reactions: The supporters might reformate or move to other extremist groupings so that the threat is not averted, just shifted. Even an exaggeration of the extremism is imaginable since the extremists could interpret a ban as a confirmation of their allegation of limitation of liberties through the political elite.

How does the European level deal with the AfD?

Unlike on the national level, a constitution or similar systems do not exist on the European level to protect European fundamental values. However, we can still observe actions and patterns that safeguard European politics' essential workings and foundations.

In this context, the AfD also faces resistance on the European level. In May 2024, the populist right-wing parliamentary group "Identity and Democracy (ID)," which assembles Europe's populist, right-wing, and anti-Europe parties in the Parliament, excluded the AfD. Accusations, including espionage for China about the party's election lead candidate, Maximilian Krah, led to this backlash and was promoted by the French populist Marie Le Pen. As a result, the AfD distanced itself from Krah and the espionage accusations. As a result, AfD is without a parliamentary group as of now.

Thus, at the European level, we also witness resistance against unconstitutional far-right politicians and their ideologies. However, it is up for debate if this European resistance originates from an election campaign motivation shortly before the EP elections or a severe actual concern about the democracies' survival in Europe, which is endangered by high-ranking AfD figures like Maximilian Krah.

As we conclude today, the primary motivation was probably ID's concerns about the upcoming election. Last week, only a few days after the EP election, Krah was spotted with AfD party colleagues in Brussels.

Therefore, we must conclude that the European political system cannot effectively defend itself against internal enemies; instead, it depends on a national, second-order process like a potential AfD party ban in Germany.

Conclusion

The evaluation has emphasized the central demand and purpose: A democratic state must be capable of defending its constitution and its fundamental values. A party ban is a risky option in the current situation. Nonetheless, regarding the party's increasing power, a party ban must be implemented now or never. Otherwise, if the AfD increases its power further and potentially becomes a government party, the argument of banning a democratically legitimate power becomes increasingly relevant. However, even in the case of an immediate party ban, the effectiveness and efficiency regarding the German Constitution's protection are debatable. Even if the party structure were banned, the individuals, their ideas, and unconstitutional ideologies would still exist.

Considering effectiveness, a ban is not sufficiently comprehensive and thus not effective since anti-constitutional ideologies are diverse and widespread across the AfD party lines. In this sense, the AfD's links to far-right organizations are equally an argument for and against the party ban. On the one hand, it is proof of the party's radicalization. On the other hand, these links also prove that the problem of unconstitutional ideologies cannot be traced back to the AfD exclusively but to numerous organizations and networks.  Therefore, a ban on one party, the AfD, cannot guarantee the elimination of anti-constitutional forces. Instead, it could even reinforce these anti-constitutional resentments and, thus, limit the party ban's efficiency in protecting the Constitution.

At the same time, the party ban is a measure in Germany's constitutional toolbox for a very good reason. In the 1930s, a party ban maybe could have prevented or at least limited the harm caused by the right-radical NSDAP. Regarding the frightening parallels to the 1930s, we might currently find ourselves in the exact situation for which a party ban was meant to be utilized.

Finally, Germany cannot rely on action from the European level. Even though we can observe reactions towards AfD's continuing radicalization on the EU level, actions like the ID's exclusion do not limit the harm AfD can cause with its ideology nationally and abroad. Therefore, the responsibility to maintain the party system, meaning a party system following constitutional standards, is institutionally and legally anchored on the national level.

_________________________________________________________________________

Sources

Bensmann, Marcus, Justus von Daniels, Anette Dowideit, Jean Peters, and Garbiela Keller. 2024. "Secret Plan against Germany." Correctiv. https://correctiv.org/en/top-stories/2024/01/15/secret-plan-against-germany/.

Droste, Bernadette. 2007. Handbuch Des Verfassungsschutzrechts. 1. Aufl. Stuttgart: Boorberg.

Grundgesetz Für Die Bundesrepublik Deutschland. 1949. Article 21. Vol. 2. https://www.gesetze-im-internet.de/gg/art_21.html.

Heflik, Katharina. 2022. “Razzia Gegen Reichsbürger: KSK-Verdächtiger Wurde Laut Wehrbeauftragter Bereits Beobachtet,” July 12, 2022. https://www.zeit.de/politik/deutschland/2022-12/razzia-reichsbuerger-ksk-soldaten-eva-hoegl.

Knight, Ben. 2017. "Court Rules against NPD Ban," January 17, 2017. https://www.dw.com/en/germanys-constitutional-court-rules-against-banning-far-right-npd-party/a-37155332.

KPD-Verbot. 1956. Bundesverfassungsgericht.

Loewenstein, Karl. 1937. "Militant Democracy and Fundamental Rights, I." The American Political Science Review June 1937, Vol. 31 (3): 417–32.

Oltermann, Philip. 2022. "Key Figures behind Alleged Far-Right Plot to Overthrow the German Government," July 12, 2022. https://www.theguardian.com/world/2022/dec/07/key-figures-behind-alleged-far-right-plot-to-overthrow-german-government.

Popper, Karl R. 2011. The Open Society and Its Enemies. London: Routledge Classics.

SRP-Verbot. 1952. Bundesverfassungsgericht.

Tsp. 2022. “Anti-Terror-Razzia in Reichsbürgerszene:Berliner Richterin Und Frühere AfD-Abgeordnete Nach Festnahme Aus Zivilkammer Ausgeschieden,” August 12, 2022. https://www.tagesspiegel.de/berlin/anti-terror-razzia-in-reichsburgerszene-berliner-richterin-und-fruhere-afd-abgeordnete-malsack-winkemann-festgenommen-8987323.html.