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Constructive Vote of No Confidence

The Constructive Vote of No Confidence (in German: konstruktives Misstrauensvotum) is a specialty of the 1949 German constitution, the Grundgesetz (Basic Law). It means that the Bundeskanzler (Federal Chancellor, head of government) may only be removed from office by majority vote of Parliament (the Bundestag) if a successor is elected into office at the same time.

This concept is a direct reaction of the 1949 constitution to the problems of the 1919 Weimar Republic, where the current Reichskanzler (as the Chancellor was then called) would frequently be voted out of office without his successor having sufficient backing in Parliament. This led to quick succession of many Chancellors in office; see the Chancellor of Germany page for a list.

To overcome this problem, the German Grundgesetz has two provisions:

Article 67. (1) The Bundestag can express its lack of confidence in the Federal Chancellor only by electing a successor with the majority of its members and by requesting the Federal President to dismiss the Federal Chancellor. The Federal President must comply with the request and appoint the person elected.
(2) Forty-eight hours must elapse between the motion and the election.

Article 68. (1) If a motion of a Federal Chancellor for a vote of confidence is not assented to by the majority of the members of the Bundestag, the Federal President may, upon the proposal of the Federal Chancellor, dissolve the Bundestag within twenty-one days. The right to dissolve shall lapse as soon as the Bundestag with the majority of its members elects another Federal Chancellor.
(2) Forty-eight hours must elapse between the motion and the vote thereon.

As a result, the failure of a Motion of Confidence does not automatically trigger the resignation of the government. Rather the government may continue as a minority government if the opposition is unable to agree to a successor via a Constructive Vote of No Confidence.

Also, the Federal President may dissolve the legislature only after the failure of a Motion of Confidence. This provision is intended to limit the power of the President, which was also considered a weakness in the Weimar Republic. One consequence of this is that in contrast to other parliamentary democracies, the German Chancellor does not petition the head of state to dissolve the legislature. Rather, in the past, the Federal Chancellor has proposed a Motion of Confidence which he intentionally loses. However, this practice has been restricted after the election of Helmut Kohl in 1982 by the German Constitutional Court.

Since 1949, only two Constructive Votes of No Confidence were attempted, one of which was successful.

1. On April 27, 1972, an attempt to vote Chancellor Willy Brandt (SPD) out of office in favor of opposition leader Rainer Barzel (CDU) failed by a margin of only two votes. This came as a surprise, since it was known that several members of the SPD-FDP coalition strongly opposed Brandt's Ostpolitik and the government no longer had a clear majority after several deputies had switched over to the opposition. Mathematically, the opposition should have had a majority of 250 votes compared to 246 left for the coalition, and it needed 249 for bringing down Brandt.

The vote was highly influenced by tactics; although being secret, the voting of the CDU was exposed by the coalition mostly abstaining from the vote. In the end, only 260 votes were cast: 247 with yes, 10 with no, and 3 abstentions from voting. It was thus clear that the missing votes had to be looked for within the CDU faction. In June 1973, CDU member Julius Steiner admitted to Der Spiegel magazine to have abstained from voting. Later he claimed to have received 50.000 Deutschmark in return from one of the leading SPD figures, Karl Wienand. The corruption was never affirmed; neither is clear until today who is to blame for the second missing vote. However, after the 1990 German reunification, it became clear that the money came from the East-German Stasi who at the time saw a need for Brandt to stay in power. This is somewhat ironic because Brandt's Ostpolitik is today seen as one of the major steps that eventually led to the implosion of the communist states after 1989.

2. On October 1, 1982, Helmut Schmidt was successfully voted out of office in favor of Helmut Kohl, marking the end of the SPD-FDP coalition. The vote was not as tricky technically as the earlier one since it was clear this time that the FDP wanted to switch over to a coalition with the CDU and was already in negotiations at the time the vote happened. The FDP was no longer content with the SPD economic policy, and at the same time the SPD was internally divided over NATO stationing of nuclear missiles in Germany. Still, the vote succeeded only with a slim majority of seven votes.

To obtain a clearer majority in the Bundestag (which seemed to be in reach according to the polls), after the vote, Helmut Kohl put up a Motion of Confidence in which the new CDU-FDP coalition intentionally voted against the Chancellor that it just put into power. This trick allowed for the dissolution of the Bundestag according to Article 68 Grundgesetz (see above). Still, the action prompted for a decision of the German Federal Constitutional Court, which, in a somewhat helpless ruling, upheld the move but put up criteria for future such motions. After all, the new Bundestag had already been elected in March 1983, yielding a strong majority for the new coalition, which eventually lasted until 1998.

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