Mainstream parties are changing laws to protect government institutions. Critics say the changes risk undermining democracy.
For Germany — a country that knows something about how extremists can hijack a government — the surging popularity of the far right has forced an awkward question.
How far should a democracy go in restricting a party that many believe is bent on undermining it?
It is a quandary that politicians and legal experts are grappling with across the country as support surges for Alternative for Germany, a far-right party whose backing now outstrips each of the three parties in the governing coalition.
Not only is the AfD the most popular party in three states holding elections this year, it is polling nationwide as high as 20 percent. German politicians have become increasingly alarmed that someday the party could wield influence in the federal government. Its popularity has grown despite the fact that the domestic intelligence services announced they are investigating the party as a suspected threat to democracy.
Germans have already had a front-row seat to the rise of so-called illiberal democrats in Poland and Hungary who used their power to stack courts with pliant judges and silence independent media. History hangs heavy over Germany as well — the Nazis used elections to seize the levers of the state and shape an authoritarian system.
Today, German lawmakers are rewriting bylaws and pushing for constitutional amendments to ensure courts and state parliaments can provide checks against a future, more powerful AfD. Some have even launched a campaign to ban the AfD altogether.
But every remedy holds its own dangers, leaving German politicians threading a course between safeguarding their democracy and the possibility of unwittingly providing the AfD with tools it could someday use to hobble it.
“It’s never the case that if you have democracy, once you’ve won it, you have it forever,” said Stephan Thomae, a member of Parliament from the Free Democratic Party. “Therefore, we should protect it a little more.”
10,000 Extremists
For years, Germany’s mainstream parties have tried to isolate and ostracize the AfD by avoiding political collaboration.
They now acknowledge that those efforts failed to curb the AfD, whose popularity has grown with German concerns about migration and a stagnating economy, and despite reports of the AfD’s increasingly anti-democratic bent.
Germany’s domestic intelligence says 10,000 of the party’s 28,500 members are extremists. Several state branches of the AfD have already been classified as extremist, as has its youth wing.
Some AfD members are entangled in criminal charges, including a fantastical, foiled plot in 2022 to violently overthrow the government: Police say the plot was aided by a former AfD lawmaker who let the plotters into the Parliament to scout routes and targets.
Most recently, several AfD members, including an aide to the party’s co-leader, attended a meeting where an extreme-right activist reportedly discussed his vision for “remigration,” or mass deportations of immigrants, potentially including naturalized citizens.
The aide was later dismissed and AfD leaders have denied wanting to deport German citizens. But news of the meeting, reported by the German investigative outlet Correctiv in January, set off weeks of protests against the AfD across the country.
The protests, in turn, have intensified debate over how to protect German democracy.
The Enemy of My Enemy
Already, the AfD’s impact in government is being felt on the state level.
In the central German state of Hesse, the AfD became the largest opposition party in the state parliament after elections last year. That gave the party the right to hold positions on key committees — among them the body that oversees domestic intelligence services.
In other words, the members of a party that is currently the subject of surveillance operations would have access to information on who and what was being watched.
Hesse’s rival mainstream parties came together to pass a “democracy package,” rewriting several parliamentary rules, including one that effectively blocked the AfD from the intelligence committee. Now members are selected solely by the ruling coalition, a move that risks weakening opposition oversight of the majority.
In the eastern state of Thuringia, mainstream lawmakers also wanted to block the AfD from their intelligence committee, and initially agreed to put their differences aside and vote for each other’s candidates.
The plan failed when the Christian Democrats, the largest center-right party in the country, ultimately refused to accept the nominee of the center-left Green Party. The committee is still run by members of the former parliament — including one lawmaker who retired.
“Political compromise and cooperation is eroding,” said Jelena von Achenbach, a public law expert at the University of Erfurt. “They can’t trust each other. And that makes things like cooperating against the AfD very difficult.”
In Bavaria, the AfD came second in the October elections, giving it the right to appoint two honorary judges to the southern state’s constitutional court.
One of the judges the party nominated had been photographed with far-right and anti-vaccination supporters who tried to storm the German Parliament during a protest in 2020. (He later told reporters he was only trying to get a sense of the protest.)
Since court nominees are elected by parliament as an entire list, Bavaria’s lawmakers were faced with either accepting all nominees, including the AfD candidates, or blocking everyone and hampering the functioning of the state’s highest court.
The left-leaning parties decided to block.
“There is no way around the fact that enemies of democracy cannot sit on bodies that are supposed to protect or shape democracy,” Bavaria’s parliamentary Green leader, Jurgen Mistol, told The New York Times in a statement.
But Bavaria’s majority conservatives pushed the list through, vowing instead to work with their center-left rivals to amend the system later.
The two AfD judges sit on the court today.
Unintended Consequences
Efforts to head off the rise of the AfD are now intensifying at the national level, but those efforts may have the unintended effect of weakening democratic functions in Germany.
Some measures under discussion would give law enforcement and domestic intelligence agencies more latitude, never an easy step in a country that experienced both Fascism and Communism in the last century.
The interior ministry has proposed a 13-point plan that would, among other things, enable security forces to investigate the finances of anyone viewed as having “threat potential,” as opposed to only those people being investigated for incitement or violence.
Another would allow civil servants to be dismissed based on suspected ties to extremists, placing the burden of proof on employees rather than the state.
“A culture of suspicion is being created,” said Gottfried Curio, an AfD member of Parliament. “We consider this to be the real threat to democracy.”
Some national legislators are especially concerned with protecting the independence of the Supreme Court. They want to enshrine the process for appointing judges in the Constitution and have it require a two-thirds majority in both houses of Parliament. Until now, the appointment of judges has been governed by federal law and requires a simple majority.
But if the AfD ever controlled more than a third of parliament, such a change would actually allow it to block any judicial appointment it wanted.
“It’s one of those classically hard questions where there isn’t a good answer,” said Michaela Hailbronner, a public law professor at the University of Munster. “You see the potential for abuse. You might even already label it as abuse.”
Yet some Germans are demanding even more drastic measures.
The governing coalition in the northern city of Bremen has announced it will collect evidence against the AfD in support of a nationwide ban of the party.
But many politicians, like Mr. Thomae of the Free Democrats, worry such a step could backfire — effectively disenfranchising the nearly quarter of voters expressing support for the AfD.
“It’s our political task to explain to people the AfD’s real aim is to change the fundamentals of democracy,” he said. “You can’t solve all problems with laws.”
