Germany’s far-right predicament — to ban or not – POLITICO

James Kirchick is a senior fellow with the Foundation for Individual Rights and Expression. He is the author of “The End of Europe: Dictators, Demagogues, and the Coming Dark Age.”

Germany is currently confronting one of the gravest challenges to its democracy since the Nazi regime — and its political establishment thinks the solution might be to ban the country’s second most popular political party.  

“We all have it in our hands to put those who despise our democracy in their place,” President Frank-Walter Steinmeier thundered in an August speech commemorating the 75th anniversary of Germany’s postwar constitution.

Steinmeier didn’t name who exactly the despisers were, nor did he state what must be done to “put them in their place.” But there was no ambiguity in his remarks. The very next day, a Der Spiegel editorial entitled “Ban the Enemies of the Constitution!” called upon the country’s highest court to declare the right-wing Alternative for Germany (AfD) party unconstitutional, and thereby enjoin its dissolution.

But this is not the answer.

Germany isn’t alone in its current quandary — the far right is on the rise all across Europe. Brothers of Italy, the descendant of a party founded by allies of Benito Mussolini in 1946, now leads Italy’s first far-right government since World War II. In France, main opposition leader Marine Le Pen’s far-right National Rally is a single percentage point shy from leading the polls. All the while, the increase in illegal immigration, economic instability, and soaring electricity and commodity prices stemming from the war in Ukraine are empowering antiestablishment forces across the Continent.

But understandably, given its history, it’s the far right’s ascent in Germany that’s most disquieting.

When it was founded a decade ago by a group of wonkish Euroskeptic economists, the AfD was chiefly concerned with opposing German-backed economic bailouts — an unpopular platform even at the height of the eurozone crisis. In that year’s parliamentary elections, the party fell short of the 5 percent threshold necessary to enter the Bundestag.

It would take the 2015 migrant crisis — and then-Chancellor Angela Merkel welcoming of over a million mainly Muslim immigrants into the country — to finally boost the party’s electoral fortunes. Seizing on questions of national identity, a group of right-wing activists ousted the party’s founders. And in the parliamentary election that followed two years later, the AfD came in third, campaigning on a pledge to end asylum.

A series of subsequent outrageous remarks by AfD leaders — such as the boast that the Nazi era was but a “speck of bird poop in more than 1,000 years of successful German history” — placed the party beyond the pale of respectable opinion.

And so long as its support was based in the poorer east and hovered in the low teens, the German establishment was content to ignore the AfD as a band of grumpy reactionaries leading a mass of benighted, misinformed left-behinds.

The obsolescence of that strategy was exposed this past June, however, when the AfD surpassed Chancellor Olaf Scholz’s Social Democratic Party (SPD) in the polls, moving into second place.

Precisely as this momentous eclipse occurred, the director of Germany’s domestic intelligence agency — the Federal Office for the Protection of the Constitution (BfV) — delivered a significant political intervention: Stating that elements of the AfD spread “hate and agitation against all kinds of minorities in Germany, especially migrants,” he warned citizens against voting for the second most popular party in the country.

Alas, the warning fell on deaf ears. Today, support for the AfD stands at around 21 percent nationally — higher than any of the three parties in the country’s ruling coalition. And in four of Germany’s five eastern states — three of which will hold elections next year — it’s polling first.

But while public opinion is evenly split on whether the AfD should be banned, it’s highly unlikely that the Federal Constitutional Court would ever do so.

Consider the fate of the National Democratic Party (NPD) — a much smaller and much more extreme right-wing faction, which was founded by ex-Nazis in 1964. An attempt to ban the NPD in the early 2000s failed after many of its leaders, including the author of an antisemitic tract that was integral to the government’s case, were revealed to be undercover agents for the BfV. A second attempt was then blocked in 2017, when the court declared the party too small to represent a threat to the constitutional order.

The AfD is comparatively much larger, but the legal hurdle to banning it remains high as well — and rightly so. For as much as Germany may be known for its long and ignominious history of political extremism, it has also excelled at banning disfavored political movements and expression.

In 1878, for example, then Chancellor Otto von Bismarck proscribed the Social Democrats for a 12-year period, and, of course, the Nazis banned all political parties. Later, during the early years of the Cold War, West Germany banned the Communist Party and a small neo-Nazi faction, while East Germany banned all organized political opposition to its ruling Socialist Unity Party.

Then, in 1972, West Germany’s Chancellor Willy Brandt implemented the Anti-Radical Decree, empowering the BfV to screen all federal jobholders and applicants — not just those dealing with classified information — for suspect political affinities. Brandt later came to regret the measure, which ended up targeting leftists in far greater number than those nostalgic for the Third Reich. “It seemed to me a mistake to try conducting political arguments with the help of the police and the public prosecutors,” he wrote in his memoirs.

It’s also important to remember that while today Germany contemplates banning a right-wing party to “protect” democracy, it was through unbanning communist parties that Greece, Portugal and Spain began their successful transitions from military dictatorships to pluralistic democracies.

Banning speech and political movements — core elements in Germany’s ethos of “militant democracy” — relies on a popular misconception about the country’s history: that the Nazis came to power through the “abuse” of free speech. Rather, as scholar Jacob Mchangama demonstrated in his book “Free Speech: A History from Socrates to Social Media,” the Weimar Republic frequently banned Nazi publications, and Hitler himself was barred from speaking publicly in most German states from 1925 to 1927.

That protecting democracy may sometimes require the employment of undemocratic methods is an irresolvable paradox. And the risk that proponents of “militant democracy” now run is that in their zeal to defend democracy, they will weaken it.

Ultimately, the rise of the AfD is a testament to establishment failure.

Hastily abandoning nuclear energy as Merkel did in the wake of the 2011 Fukushima disaster, and deepening Germany’s dependence on Russian natural gas — a policy that enjoyed widespread support among the political and economic elite — laid the groundwork for today’s soaring energy costs. Meanwhile, appeasing Russia — Berlin’s preferred posture until the invasion of Ukraine last year — enabled Moscow’s intervention in Syria, which was a major driver of the 2015 migrant crisis.

It is the consequences of all these failed policies that propelled a right-wing populist party into the Bundestag for the first time in Germany’s postwar history — and threatening to ban it will do little to sap the sources of its support. Indeed, it may have the opposite effect, signaling to voters that the political establishment cannot tolerate challenges to its rule.

Thus, Germany must be vigilant not only about the AfD, but also about those who would undermine democracy in the name of saving it.