Wegge: “The Basic Law Requires Us to Take the Instruments of Militant Democracy Seriously”

This week, The Transatlantic Ledger is taking an in-depth look at a possible ban of the Alternative for Germany (AfD) party. SPD politician Carmen Wegge from Bavaria supported the recent motion in the German Bundestag. In the second part of our interview, she emphasizes why action must be taken and explains how she deals with her critics.

Failing to Act Would Send a Fatal Message

The Transatlantic Ledger: What risks do you see if a ban proceeding is not pursued?

Carmen Wegge: If we permanently forgo a ban proceeding despite the findings that are now available, we accept the risk that a party which demonstrably acts against human dignity, the principle of democracy, and the rule of law can expand its institutional positions of power and weaken the democratic state from within. Even now, we are witnessing how the AfD, in parliaments and other institutions, attempts to obstruct proceedings, sabotage democratic conventions, and undermine trust in the rule of law.

At the same time, we are seeing a rise in racist and right-wing extremist-motivated violence, in which references to AfD politicians or narratives repeatedly become apparent, as well as growing intimidation and exclusion of minorities, local politicians, and engaged citizens. The message sent by inaction would be fatal. It would signal that even massive attacks on the free democratic basic order remain without consequence. In my view, the Basic Law requires us to take the instruments of militant democracy seriously, and not to act only once the damage has become irreparable

How important is a cross-party approach on this question?

A cross-party approach is central for me, because a motion for a party ban proceeding must not appear as the project of a single party, but rather as an expression of the shared responsibility of all democratic forces for the protection of our constitution. Already in the previous legislative period, we called, in a group motion together with colleagues from various parliamentary groups (CDU, SPD, Greens, Left Party, SSW), for proceedings to be initiated under Article 21 to establish the unconstitutionality of the AfD.

The early federal election at the time prevented this motion from coming to a vote. With the new GFF expert opinion, we again see that the legal requirements are met, and I consider it important that the Bundestag, the Bundesrat, and the Federal Government deliberate and decide on this question together. A party ban proceeding must be prepared conscientiously in accordance with the rule of law, while at the same time being broadly legitimized politically.

Bundestag, Bundesrat, or Federal Government Would Have to File the Motion

What responsibility does the German Bundestag bear in this proceeding?

Alongside the Bundesrat and the Federal Government, the Bundestag is one of the three constitutional bodies that may file a motion with the Federal Constitutional Court to establish the unconstitutionality of a party. The Federal Constitutional Court cannot act on its own initiative. As the elected representation of the people, the Bundestag has the task of protecting the free democratic basic order and of learning from history that democracy can be endangered not only by external but also by internal enemies. This responsibility means that we must not hide behind legal technicalities, but must instead make the political decision as to whether, in light of the findings now available, we clear the way to Karlsruhe. At our party conference, we in the SPD clearly stated our position that the constitutional bodies entitled to file a motion should now create the necessary conditions to be able to file a motion to establish the unconstitutionality of the AfD as soon as the legal criteria are met. The Bundestag must not shirk this responsibility.

What impact would a successful party ban have on democratic culture in Germany?

A successful party ban would be a profound turning point, but in my view above all a clear signal that our democracy is prepared to defend itself against organized enemies of the constitution. It would demonstrate that the guarantee of human dignity, the principle of democracy, and the fundamental structures of the rule of law are not non-binding appeals, but clear boundaries that also apply to parties which can point to a large number of voters. At the same time, a ban would strike at the structures of the AfD and thereby limit its institutional ability to undermine and obstruct democratic institutions. One can ban parties and organizations, but not ideas, and right-wing extremist ideology does not disappear through a court ruling alone. For this reason, a ban proceeding must always be embedded in a broader approach to strengthening democratic culture, civic education, extremism prevention, support for those affected by hatred and violence, consistent criminal prosecution, and a policy that takes social divisions seriously. If we deploy the sharpest sword of militant democracy, we should at the same time demonstrate that democracy is not a fragile order, but a strong, adaptable, and solidary community.

How would you explain to international observers that a party ban can be compatible with a liberal democracy?

I would first point out that party bans in Germany are designed as an ultima ratio, as the last resort of a militant democracy, historically developed from Germany’s experiences with the Weimar Republic and National Socialism. Our Basic Law grants parties an exceptionally strong position, because they are meant to participate on a lasting basis in the formation of political will, and it protects them from arbitrary state interference. But precisely for this reason, it also sets clear limits when parties use this privileged position to destroy the democratic order.

The decision on a party ban does not lie with the government or with parliament, but solely with the Federal Constitutional Court, which independently examines whether a party is seeking to abolish the free democratic basic order. Such a proceeding is transparent, grounded in the rule of law, and marked by high hurdles. It is not about suppressing inconvenient opinions, but about protecting the fundamental rights and freedoms of all people — in particular, of minorities — from a party that systematically attacks them. I am convinced that a liberal democracy is not credible if it gives free rein to extremist forces working toward its abolition. It must protect its own openness, so that it does not tip over into authoritarian conditions.

Lessons from the NPD Ban Proceedings

What lessons can be drawn from previous NPD ban proceedings?

The NPD proceedings showed that party ban proceedings are extremely demanding from a legal standpoint and can fail if the criteria set out by the Federal Constitutional Court are not strictly observed — for instance, if the evidence is not free of state involvement, or if the threat to the democratic order cannot be sufficiently substantiated. In the first NPD proceeding, the question of the so-called V-Leute (state-paid informants) proved problematic. Because it was unclear whether state informants had influenced the party’s activities, the Court held that the required state-independence of the evidence had been violated. In the second proceeding, the Federal Constitutional Court did find that the NPD was clearly unconstitutional, but it saw no current potential to abolish the free democratic basic order and therefore refrained from imposing a ban. In other words, the party was too small and too insignificant. For a proceeding against the AfD, this means that we must very carefully examine not only whether the party holds unconstitutional aims, but also whether it represents a real threat to the democratic order — and we need a body of evidence that is both free of state involvement and broad and solid.

What role does the protection of minorities and human dignity play in the current debate?

The protection of human dignity and minority rights lies at the center of the debate, because it is precisely these fundamental principles that the AfD systematically attacks. The GFF’s expert opinion and numerous reports show that the AfD deliberately intimidates, excludes, denigrates, and seeks to legally devalue people with a migration background, Muslims, asylum seekers, transgender people, and other groups, in order to push them out of the political process of will-formation. Its politics are thus directed not only against abstract constitutional values, but against concrete people whose safety, participation, and dignity are directly threatened. The Basic Law regards human dignity as inviolable and requires the state to protect it. A party ban proceeding is one of the instruments through which we can fulfill this duty of protection, when a party openly and persistently violates it. As a Social Democrat, it matters to me that we not only talk about minorities, but with them — that we take their perspectives seriously and make clear that a proceeding against the AfD is not an act of power politics, but a step toward protecting those whose rights and dignity are threatened by this party.

How do you assess the balance between freedom of expression and the protection of the free democratic basic order?

Freedom of expression is a core right of our democracy and naturally also applies to unpopular or sharp political criticism. It ends, however, where deliberate attacks on human dignity and on the functional conditions of the democratic order begin. Anyone who uses democracy in order to destroy it cannot invoke the protection of freedom of expression. The debate about the AfD is therefore not about banning legitimate conservative or right-leaning critical positions, but about whether a party is working in a planned manner to hollow out the guarantee of human dignity, to persecute political opponents, and to delegitimize democratic institutions. A party ban proceeding is not a means of sanctioning opinions, but an instrument for protecting the constitutional state from actors seeking to abolish it. The boundary lies at the point where opinion turns into an organized attack on democracy.

Failure Would Be a “Severe Blow”

What consequences would a failed ban proceeding have?

A failed ban proceeding would undoubtedly be a severe blow, because it could be misconstrued by the AfD as an acquittal for propaganda purposes and used for further mobilization, even though a court ruling would generally turn out to be considerably more complex than that. It could give parts of the public the impression that even comprehensively documented right-wing extremism carries no legal consequences, thereby weakening trust in the capacity of the rule of law to act. At the same time, we must not forget that a proceeding can still make important findings even in the event of failure — similar to the second NPD proceeding, in which the Federal Constitutional Court clearly identified the party’s unconstitutionality, even though it refrained from imposing a ban. A possible failure makes careful preparation, the involvement of independent expertise, and a realistic assessment of the prospects of success all the more important.

What further measures should be taken against extremism independently of a ban proceeding?

Independently of a ban proceeding, a comprehensive package of measures against right-wing extremism is needed, one that combines prevention, repression, the promotion of democracy, and the protection of those affected. This includes the consistent criminal prosecution of right-wing extremist-motivated offenses, the expansion of specialized units within the police and public prosecution service, and stricter sanctions, particularly with regard to hate crime online. We must dismantle right-wing extremist networks by using organizational bans, consistently applying weapons law, and cutting off sources of funding. At the same time, it is essential to protect democratic institutions from infiltration — for instance, through reforms to parliamentary rules of procedure, stricter rules for elections to positions of power, and clear disciplinary consequences for civil servants holding anti-constitutional convictions. Another key focus is the long-term strengthening of democratic competence through civic education, media literacy programs against disinformation, support for civil society projects, and the protection of local politicians, volunteers, and minorities from threats and violence.

How should the federal government sustainably strengthen trust in democratic institutions?

The federal government can strengthen trust in democratic institutions by acting transparently, by setting clear priorities for the protection of the free democratic basic order, and by visibly including people in all their diversity. This includes, first of all, making clear that attacks on human dignity, racism, antisemitism, hostility toward Islam, and other forms of group-focused enmity are not accepted and will be consistently prosecuted. It should also refrain from treating the instruments of militant democracy as taboo, and instead openly explain why and under what conditions they are used.

It is also important for the federal government to invest, together with the states and municipalities, in expanding counseling and support structures for those affected by hatred and violence, to strengthen local democracy, and to secure long-term funding for anti-radicalization programs. And it is also about social justice! When people experience the state working to ensure affordable housing, good education, reliable healthcare, and fair working conditions, trust in democratic institutions grows, and extremist offerings lose their appeal.

Party Ban Proceedings as a Last Resort

What message would you like to convey to citizens who are skeptical of the proceeding?

A party ban proceeding is not an easy step and not a shortcut in political competition, but a last resort that we only deploy when the legal requirements are unambiguously met. Skepticism is therefore understandable and important, because it reminds us to act carefully and responsibly, to take the case law of the Federal Constitutional Court seriously, and to set aside partisan political considerations. At the same time, I would ask people to take note of the reality of the AfD. This is not a “normal” opposition party, but an organization that systematically attacks human dignity, democracy, and the rule of law, and whose growing strength already has concrete consequences for those affected by hatred and violence, as well as for our institutions. The Basic Law did not give us the possibility of a party ban for no reason. A look back at the history of our country reminds us to make use of this possibility when democracy is seriously under threat. And it is precisely in this situation that many independent experts see us today.

In your view, what developments will be decisive for the debate in the coming months?

What will be decisive is how the constitutional bodies entitled to file a motion handle the new body of findings, in particular the GFF expert opinion. I expect these bodies to address the question in a timely and structured manner — whether to set up a federal-state working group, systematically gather evidence, and commission independent experts to assess the prospects of success of a motion in Karlsruhe. It will also be important how the Cologne Administrative Court rules on the merits regarding the classification of the AfD as confirmed right-wing extremist, since this judgment will further clarify the legal starting position. At the same time, the political development of the AfD itself will play a role. Further steps of radicalization, new right-wing terrorist cases linked to the AfD, changes in its leadership, and its activities in parliaments and on the streets will all feed into the assessment.

First Image: Stefan Brix

You can find Part 1 of our interview with Carmen Wegge here.