In a bombshell move that could shake the political landscape in Germany and beyond, the government in Berlin opened the door this month to the extraordinary possibility of outlawing the nation’s second most popular party.
The far-right Alternative for Germany (AfD) has been under government surveillance for years, suspected of antidemocratic activity. On May 2, the Federal Office for the Protection of the Constitution officially declared the AfD an extremist group, citing its anti-immigrant rhetoric and activity as violating the constitutional demand for “human dignity.”
What the authorities choose to do next could hold lessons for nations worldwide, as a model for how democracies can defend themselves or as a political Frankenstein’s monster. When a government tries to save itself, does it risk becoming the greater threat to democracy?
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Memories of Nazism prompted modern Germany’s founders to give governments the authority to ban extremist parties. Such a party is now the second-biggest in the country. How should the authorities act?
“If you ban the party, you shut out one-fifth of German voters” – the number who have consistently voted for the AfD, says Michael Minkenberg, a political scientist and expert on extremism at the European University Viadrina Frankfurt. “Is that too much damage to democracy?”
As right-wing populism surges around the world, nations are struggling over what to do. Because of its history, Germany has a unique role. The May 2 decision is just one example of how the government has an unusually powerful suite of tools to push back.
Determined never again to repeat the mistakes of the Nazi era, modern Germany’s founders wanted their state to be able to defend itself against anti-democratic forces. What has emerged is a so-called “militant democracy” that can curb free speech and ban parties.
A sparingly used weapon
The decision classifying the AfD as extremist is already under scrutiny. On May 8, the Office for the Protection of the Constitution, a branch of the government, said it was suspending the designation until a court rules on a lawsuit brought by the AfD.
But the May 2 announcement only underlined a mounting sense of urgency.
German law bans any glorification of Nazi atrocities. Holocaust denial is classified as hate speech, and swastikas are seen as symbols of anti-constitutional organizations. But the tools of militant democracy allow the German government to go further. It can target anti-democratic activity by moving against parties, individuals, and their right to associate.
It has never moved against an individual, and it has only rarely taken on political parties. Two have been banned – the Socialist Reich Party (a right-wing neo-Nazi offshoot) in 1952, and the Communist Party in 1956.
But the AfD represents uncharted territory. The federal government has never challenged a party with so much popular support. The AfD won 21% of the vote in February federal elections and is the second largest party in parliament. Polls suggest its support continues to grow.
The tools of militant democracy work best when they catch a movement early on, says Ralf Poscher, a director of the Max Planck Institute for the Study of Crime, Security, and Law in Freiburg. “Once a party has grown sizable, whether the instruments work is very unclear.”
Nor is the AfD such a clear-cut case as the two parties banned in the 1950s, which made no secret of their desire to overthrow the democratic system. The AfD is different, claiming it will use the levers of democratic government to achieve its aims.
Some say its rhetoric alone is a sufficient threat to warrant a ban. Many AfD leaders repeatedly use terms that downplay the Holocaust and the seriousness of the Nazi era, and they employ Nazi-era words such as Lügenpresse – “the lying media.” This trivializes Nazi rhetoric, “which I consider a serious challenge to the democratic order and the principle of human dignity,” says Dr. Minkenberg.
A double-edged sword
Others seek more clarity about the allegations. “The danger,” says Dr. Poscher, lies in “using [the tools of militant democracy] against something you don’t like but which doesn’t violate core principles.”
For his part, however, having these tools available “is a risk worth taking.”
“We are well aware of the ambivalence of these measures” – that they could be misused or backfire if not used carefully, he says. But he believes Germany has built strong institutional safeguards.
Among them is free speech. “The best and first defense of the state is the free exchange of ideas.” Except for speech glorifying Nazi atrocities, “even unconstitutional and extremist thoughts are allowed to be expressed, so long as they are not inciting violence.”
“But [the constitution] also says we can’t be naive – we can’t assume that free speech will always work,” he adds.
The task of deploying the full might of Germany’s militant democracy falls to the Constitutional Court, the sole authority that can ban a political party. Twice in the past 25 years, the German government has tried to ban the ultranationalist National Democratic Party. The Constitutional Court rejected the request both times. The federal investigation of the NDP also raised concerns, involving payments to informants that strengthened a violent splinter group. The incident showed how, when used incautiously, the tools of “militant democracy can undermine democracy itself,” in Dr. Minkenberg’s words.
Looming over all these concerns is the larger question of whether a militant approach would even work with a large party like the AfD.
Nadine Strossen, a former president of the American Civil Liberties Union, expresses sympathy with the German government’s aims. As the daughter of Holocaust victims, she worries about the rise of right-wing movements in Germany. But data show a clear weakness in the militant approach, she says.
“No matter how well-intentioned, these measures do not change popular attitudes, so do not lead to the desired result of reducing anti-democratic action,” she says.
Those who see value in militant democracy don’t necessarily disagree. “It is not going to solve the problem all by itself,” says Dr. Poscher. “It’s just one tool in the toolbox.”
Other options include cutting off the AfD’s federal funding, which has shown some success when imposed on other parties in Germany and elsewhere.
Or the AfD could be banned in specific states: Right-wing extremist parties and associations have been banned on the state level since World War II.
Or, most radically, the authorities could allow the AfD to govern where it wins elections.
Time to dismantle the “firewall”?
Until now, all mainstream German parties have refused to cooperate with the AfD, building a so-called “firewall” around the party. But that could actually be helping the AfD. “They can keep singing their old refrain that they are being excluded by the ‘system parties,’” Wolfgang Merkel, an emeritus political scientist at Humboldt University, told the Berliner Zeitung daily newspaper.
“Even if the firewall is emotionally understandable, one has to ask why the AfD has doubled in size behind the firewall in just a few years,” he added. The goal should be “winning over the people, including those behind the firewall, for democracy.”
That gives some experts pause. Dr. Minkenberg worries that, if the AfD took control, it could exert significant pressure on local courts, as he sees happening in the United States and Hungary. But he also points out that extreme right-wing movements have won power and played by the rules.
Italy never banned its leading neo-fascist party, the Italian Social Movement. In 1994, the party joined a governing coalition with former Prime Minister Silvio Berlusconi. But by then, it was moderating as it gained influence, and later, it lost power.
That offered evidence that far-right governments can be voted out of office, says Dr. Minkenberg. “It shows that you have to be careful with too much militant democracy. You have to be consistent, clear, and proportional between the threat you perceive and the measures you take.”
