The Federal Constitutional Court as a Veto Player

The project addressed the question when and under what conditions the German Federal Constitutional Court (GFCC) rules laws unconstitutional and in doing so becomes an effective veto player in the German political system.

Literature often perceives constitutional courts as veto players due to their power to declare laws unconstitutional. Therefore, they can alter the status quo constituted by legislature and executive. Hitherto, the circumstances under which courts make use of their position have been examined insufficiently, though. Thus, two main aims governed this project: First, to develop a sound theory concerning the interplay of court, legislature, and executive; second, to test this theory empirically using the German case and to answer the question when the GFCC intervenes.

For this purpose, we designed a database consisting of three layers. The first layer covers distinct characteristics of senate decisions from 1972 to 2010, such as petitioners or the constitutionality of a law. For the first time, all these information were systematized, allowing so far unfeasible large-N analyses. The second layer connects the data of the court decisions with the data about the legislative process. Using an already existing dataset based on the Bundestag’s GESTA/DIP database and adding data for the 16^th legislative period, we linked the court decisions ruling on certain laws with the respective legislative processes. The third layer contains data on the societal and political context by integrating common datasets (e.g. ALLBUS, Politbarometer).

Our analyses show that the GFCC does not only review political results but also demands specific actions of the legislature. In this process it takes into consideration other actors, e.g. the public. Thus, the Court acts strategically. Finally, we demonstrate that the probability of vetoing a law depends heavily on the preferences of the actors involved, that is government, both chambers of parliament (Bundestag and Bundesrat), and the Court itself. If the judges’ preferences are situated in the overlap of the other actors’ preferences the court is less likely to intervene. Hence, constitutional courts should be perceived and analysed as actors equal to other institutions considered veto players.