Democracy Needs a Proactive Defense. Sometimes, Banning Bad Actors Is OK.
No enemy is free to abuse the democratic system, even if that enemy bears the name “AfD” and has risen to become the second-largest party in Germany’s parliament.
EDITOR’S NOTE: This piece is part of a debate series that poses the question: Is it ever appropriate to ban extremist actors in a democracy? Is it overreach and political malpractice, or the proactive defense needed to stop authoritarianism before it destroys the system from the inside? Using the example of the far-right AfD party in Germany, this piece from leading German political commentator Eva Lautsch, argues in favor of a ban. Read her perspective, then read the opposing viewpoint from her colleague, Heinrich Wefing, and let us know what you think!
Eva Ricarda Lautsch is the political editor at Zeit Online, the digital edition of one of Die Zeit, Germany’s top newspapers. She studied law in Heidelberg, Berlin, and Istanbul. Eva completed her legal clerkship in Berlin and the German Embassy in Moscow. She previously worked as a legal scholar, specializing in law and democracy, and as a business lawyer.
In Germany, protecting democracy has always been a bureaucratic affair. The defense against freedom’s enemies traditionally relies less on the power of political argument and more on state authority and legal rules. This holds true to this day. Even if the enemy bears the name “AfD” and has risen to become the second-largest party in parliament.
There is, for instance, the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz or BfV), Germany’s domestic intelligence agency, which tracks and monitors threats against the constitutional order. And a political party like the Alternative für Deutschland (AfD) that actively combats this order can be banned by the Federal Constitutional Court.
The AfD poses the most serious threat to German democracy in the history of its second republic. What has been apparent for some time now through the increasingly radical rhetoric of AfD officials and in their ever closer cooperation with other extremist groups has now been officially confirmed by the BfV. In a 1,000-page report issued back in May, the BfV classified the AfD as a “proven right-wing extremist” party. Politically and legally, this report established the basis for court proceedings to ban the AfD.
But instead of taking the next step and initiating a party ban, political reactions to this report were strangely despondent. Yes, the Social Democratic Party, the junior member of the government coalition, is now preparing for ban proceedings. But Chancellor Friedrich Merz’s Christian Democratic Union is putting the brakes on the idea. Suggestions included removing the worst right-wing extremists from the civil service and possibly even awaiting the outcome of a court case brought by AfD against the BfV. There is, however, no good reason for this reticence nor for the mounting mistrust in the power of the legal weapons provided by the German Constitution. On the contrary: A party ban would be the democratic state’s most powerful response to the greatest danger it has yet faced. If the AfD were banned, it would lose its seats in parliament, its funds, and its infrastructure. Its momentum would be broken. Such proceedings are the AfD’s greatest fear. And the moment to act is now.
From the outside, of course, this aggressive manner of protecting liberal democracy seems peculiar at best. Indeed the BfV—an intelligence service that spies on political actors—and the option of party bans, which could eventually eliminate these actors, are both, on the surface, authoritarian. Yet they are not undemocratic. Agreed upon under the postwar constitution, these institutions form the core of Germany’s resilient democracy and a powerful hedge against a return to the country’s history of dictatorship.
Built upon the ruins of the Nazi regime, the legal foundation of the modern German democracy forms a defense system against its enemies that has been tried and tested for decades. The institutions upholding that order, most prominently the Federal Constitutional Court, are held in high esteem: The Court regularly ranks highly in surveys in terms of public confidence. If trust in these institutions and their power to protect the liberal order erodes, there is no substitute in the German democratic system that could take their place.
In order to ban the AfD, the Federal Constitutional Court would have to be certain that the party as a whole was actively working to undermine the liberal democratic order. The court has issued such bans twice in the past: In the cases of the German Communist Party (KPD) and the Socialist Reich Party (SRP), a Nazi successor party. Neither of these ever posed a threat to German democracy again. In the case of the deceptively-named right-wing extremist National Democratic Party, the Court only refrained from a ban because the party had become too insignificant to be an actual danger.
In the case of the AfD, it’s the opposite. Many critics of an AfD ban consider the party already too powerful and too popular to outlaw it. US Vice President J.D. Vance invoked AfD’s popularity in defending it. But “too powerful” is not a legal concept. In fact, this very concern makes it all the more urgent to initiate a ban procedure without delay.
Of course, success in court depends on evidence. The AfD’s extremist nature cannot simply be drawn from its party program. The court would need to verify, based on numerous individual incidents, that the party as a whole aims to destroy the liberal order. This is no simple task. And yet, the latest BfV report provides an ideal basis for a ban procedure.
Taking the initiative now would be an impressive demonstration of liberal democracy’s power to act. For today, no one can seriously doubt anymore that the AfD is already—and quite successfully—working to undermine the liberal order.
Its deputies have turned parliament into a stage from which they publicly undermine the institution and ridicule its other members. They present themselves as the true voice of the people. And they have a distinct idea of who the German people are: In August last year, for example, leading party member Hans-Christoph Berndt said in an interview, there were only “20, 30, 40 million Germans left in the country.” For context, Germany is home to more than 80 million people, meaning millions of Germans of immigrant descent are evidently not German enough for the AfD.
Every party ban procedure carries great risks. But in this case, not even attempting it would be the far greater danger. In other European countries, such as France or Italy, far-right parties have become more successful by moving a little closer to the political center. In Germany, the opposite has happened with the AfD. The party became more successful as it became more radical. In its party manifesto from 2017, the AfD still looks like the traditional right-wing conservative, Euroskeptic party of its founder, Bernd Lucke. But since then, extremists like Björn Höcke, who were working on overtaking the party from the start, have taken control.
At the same time, this German approach is not necessarily a role model for other Western countries with similar problems. The USA or France do not have a comparable tradition of protecting democracy through state authority. In these countries, it might still be a good idea to take an aggressive stance toward non-democratic actors to protect the democratic system. In Germany however, there is no meaningful alternative to instruments like a party ban to safeguard its democracy.
So far, no other party has managed to challenge the AfD politically with any viable result. On the contrary, the AfD's agitation is increasingly dominating the debate. The polarization it fuels is leading to coalition governments made up of weakened partners who are barely able to tackle necessary reforms on basic issues from pensions to energy supply and climate protection.
This feeds a toxic cycle of lack of trust in the system. Most AfD voters are people between 20 and 50 who no longer trust the established parties to secure prosperity for them in the future. A resilient democracy does not need to cater to forces that would tear it down from within. Instead, a ban could break this loop with an important signal: Expressing dissatisfaction with the government at the ballot box is a fundamental democratic act. But an alternative that wants to abolish the system is not on the ballot. At that point, winning back all those voters who voted for the AfD out of protest would be the responsibility of democratic parties.
The timing for a party ban is favorable: a new government has just taken office in Berlin. It may have stumbled at the start and the challenges are considerable, but the hope for its power to make a change is just as great. And the next general election may be just far enough away to bring a ban procedure to a timely conclusion before then.
Check out the other side of the debate:
Why We Can’t Protect Democracy By Banning the Bad Guys.
The debate in Germany about banning the AfD focuses on a real threat: the far-right. But a party ban is not the appropriate solution in a liberal democracy.
 | A guest post by
|
It occurs to me that this isn't the case for banning the party that's being argued here, but the case for having a trial about the banning.
Which I find a much easier sell.
"Most AfD voters are people between 20 and 50 who no longer trust the established parties to secure prosperity for them in the future."
I'm sure they'll trust the (other) established parties even more if they ban the AfD. If an alternative for changing the system is not "on the ballot", well, there are other ways to effect change, and they get increasingly less neat and tidy.
A man convinced against his will, is of the same opinion still.