This is the second part of an analysis on the current political situation in Germany, if you did not read the first part, you might prefer to do that first.

Tabula Rasa – Dissolving the Bundestag
Of course, if all else fails, Ms Merkel has another option. Under Article 68(1) of the Basic Law, the Chancellor has the right to ask the confidence question. This instrument is rarely used by German chancellors, as it primarily serves to reinforce discipline on the government benches and ensure the loyalty of government MPs, as happened in 2001 when Chancellor Gerhard Schröder compelled his Social Democrat/Green coalition to support the deployment of German soldiers in Afghanistan (in the wake of the September 11 terrorist attacks). What Article 68(1) is used for more frequently, though, is the dissolution of the Bundestag via the backdoor. Germany’s constitution does not have an express provision for dissolving the lower house, not the least due to the fragile parliaments of the Weimar Republic. Essentially, in order to trigger fresh elections, Chancellor Merkel (like Willy Brandt in 1972, Helmut Kohl in 1983 and Gerhard Schröder in 2005) would have to ask the Bundestag to express its confidence in her – with the express intent of losing that vote. If the confidence motion posed by the Chancellor fails to be supported by a majority of the Bundestag, Chancellor Merkel could then request the Federal President to dissolve Parliament.

How useful and welcomed such a dissolution would be, and whether it would make any practical difference after only such a short period of time since the 2017 federal parliamentary election is an altogether different matter. It is prudent to assume that the 2017 result would essentially be replicated, leading to another impasse – a vicious circle only more likely to strengthen the radical extremes in Germany’s politics.

How a minority government can work
Federal President Steinmeier is publicly on the record as an opponent of fresh elections. Provided the Social Democrats maintain their refusal to join another Grand Coalition government, the pressure on Ms Merkel to form a minority government will rise – and the President may very well play a pivotal role in this regard. He could encourage talks between the Christian Democrats and other willing parties (the Social Democrats, Liberals and Greens, or any combination thereof) on the conclusion of a confidence-and-supply agreement.

Such an agreement would essentially amount to the opposition parties signing the agreement abstaining from the election of the new Chancellor by the new Bundestag (with some MPs maybe even voting for her), in order to permit Ms Merkel to obtain a plurality of the lower house’s votes – maybe even support for the next couple of federal budgets, in exchange for the Christian Democrats conceding on certain policy priorities of the other parties, such as infrastructure, taxes, family reunions for asylum applicants and infrastructure spending, maybe Germany’s policy towards the European Union. Upon a confidence-and-supply agreement being signed, Ms Merkel could then stand as candidate for the chancellorship when the time comes for the Bundestag to choose Germany’s next head of government.

If after two rounds of voting, she failed to obtain an absolute majority, Article 63(4) of the Basic Law permits her election with a plurality. Subsequently, President Steinmeier then has a choice to appoint the new chancellor or dissolve the Bundestag. Given his opposition to fresh elections, Steinmeier could then appoint Merkel as chancellor of a minority government. On a daily basis, plenty of importance would fall on the Christian Democratic legislative whips in the Bundestag – whose responsibility it would be to cajole, threaten and discipline CDU MPs on a daily basis. The role of Chancellery Minister (Germany’s equivalent to a chief of staff) would also gain a more prominent role, as s/he would be responsible for organizing the majority support from various parties.

In a minority government, Merkel could continue pursuing a middle-of-the-round course on many policies. In fact, as the Chancellor of a minority government, she could play off her greatest strength thus far – her ability to relate to political opponents and craft pragmatic compromises. Additionally, it would give the Christian Democrats much-needed time to organize the transition to a new leader and Chancellor. Merkel’s days as an effective head of government are numbered, but she would do her party a great service by leading a minority government, stabilizing the ship of state and preparing the ground for the candidate succeeding her. Meanwhile, the opposition can also steady itself and actually play a more active role in legislation.

Time for Constitutional Creativity
There were some foreign observers who referred to this complex process of government formation as being (supposedly) the greatest political crisis in the Federal Republic’s history. Respectfully, that’s nonsense. Germany’s institutions are healthy, strong and resilient – the constitution works and is currently demonstrating its ability to lend a framework of stability and reliance in the most uncertain of times. Germany is in no major crisis. The fundamentals of its constitutional order work. That did not change on Election Day 2017, and it also did not change last Sunday night.

However, I do agree that there is a crisis: A crisis of constitutional creativity and political imagination. Much of the media reaction to the failure of the Jamaica talks focused on Liberal leader Christian Lindner and his supposed duplicity in negotiating an agreement with the Christian Democrat-led bloc and the Greens. In a similar vein, the pressure on Social Democrat leader Martin Schulz is also being increased to join a new federal government – despite the SPD’s clear decision to sit on the opposition benches. What is being overlooked is the chancellor’s own role.

There is no constitutional, political or moral duty on either the Liberals or the Social Democrats (or any other party) to join the federal government – especially if it means risking their political viability in the eyes of German voters. Instead, it is for the Christian Democrats – as the first-place party – to convince the other political parties of the virtues of joining a federal government led by Chancellor Merkel, or another Christian Democrat. Rather than criticizing Messrs Lindner and Schulz for not playing ball, the broadcast and published media may wish to turn their critical gaze upon the sitting chancellor and her advisors – who are unwilling, for reasons of political expedience or otherwise, to pause for a moment and understand the fact that the founders of modern, post-war Germany intended for a minority government to be one viable option for governing Germany. Otherwise, they would not have inserted the possibility of either a caretaker chancellor or the election of a chancellor with a mere plurality into the constitution. That’s why the constitution also expressly states that elected MPs are primarily answerable to their conscience, not instructions from anyone else.

A minority government is certainly not an ideal solution, but it can offer a way out. If you have ever witnessed a debate in Germany’s Bundestag, you will most likely agree that they feel like Members of Parliament are merely reading off a script, with decisions on crucial votes usually having been whipped in advance by the party’s leadership – the exchange of arguments feels rehearsed, lacking in spontaneity and rather top-driven. This is further compounded by the fact that Germany’s parliamentary democracy is dominated by parties which only occasionally involve their members in major decisions, and (unlike most Western democracies) know no intra-party primaries for the party leadership and their candidates for chancellor.

Unlike in the Westminster parliamentary systems, even an electorally badly-performing Chancellor (like Ms Merkel) is not removed by his/her own party. In the context of this political culture, a minority government could help the flagging fortunes of the political parties in Germany, all of which have been losing members for years now. What’s more, judging by the federal election result, Germans are looking for a fresh approach to politics. A minority government which has to actively engage in the work of convincing other parties, and pursue solutions in an innovative, less predictable manner, would have a regenerative effect on democracy and political discourse in general. It is also important to remember that democracy is about deliberation, the competition of ideas and the best way forward.

A minority government led by the Christian Democrats is Germany’s best chance to come closer to that idea, and to fight against the idea that constitutional democracy is merely going through the motions – instead of trying to persuade and inspire. That would be the very best antidote against populists from all corners.