The Bundestag election on September 26, 2021, will be the highlight of the super election year 2021. However, although the newly elected Bundestag will not convene for its constituent session until no later than 30 days after the election date, the actual work of the currently incumbent members of parliament will already end at the end of June with the start of the parliamentary summer recess. The election campaign will then also officially begin and legislative work will only continue after successful coalition negotiations. Time is therefore running out for the incumbent federal government. All laws that have not been passed by the Bundestag by the summer recess are deemed to have failed – discontinuity is the magic word.
The principle is as simple as it is far-reaching: Legislation introduced in the current legislative period must be passed by the Bundestag in the last session at the latest, otherwise they lapse. They cannot simply be seamlessly resumed by a newly elected Bundestag, but must be reintroduced into the parliamentary process. Due to shifts in majorities, newly formed government coalitions and corresponding reallocation of federal ministries, the procedure must de facto usually start all over again. However, this is only realistic if the project is also relevant for the new federal government and, if applicable, has already been agreed in the coalition agreement.
Discontinuity as parliamentary self-restraint
Although the principle of discontinuity has no constitutional basis, it has long been a parliamentary tradition in the Bundestag and its predecessor parliaments. The provision in the Bundestag’s Rules of Procedure that “all bills are deemed to have been dealt with” at the end of a legislative period is thus constitutional custom and forms the basis for discontinuity.
While the principle was primarily an instrument of power of the monarchy vis-à-vis the legislature until the early 20th century, since the Weimar Republic it has served as a self-imposed limit on parliament’s legitimacy and is seen as a logical consequence of personnel changes through rotational elections. After all, each newly elected parliament reflects the current will of the electorate. Thus, projects from the past election period lose their democratically legitimized mandate.
Little time left for ongoing procedures
The discontinuity principle has far-reaching consequences for the work of the federal government. All legislative projects that have to be passed by the Bundestag must be completed by the summer recess. Adoption in the Bundesrat (upper house of parliament) can still take place after that. However, if the Bundesrat does not approve the bill or calls on the Mediation Committee, the bill has failed. De facto, most legislation must be introduced at least six months before the Bundestag election to still have a chance of success. In the case of particularly contentious issues, it may then already be too late.
In addition to the factual discontinuity, i.e., the non-continuation of substantive procedures, there is also a personnel and organizational discontinuity. Not only do members of parliament lose their mandate, but the committees must also be reconstituted. The chairmanship of the committees is redistributed, and the members themselves are no longer the same as before in case of doubt. Since the committees are geared to the portfolio structure of the ministries, their content focus may also shift.
Consequences for the representation of political interests
The discontinuity principle is also a strategic challenge for interest representation at the federal level. When it comes to participating in legislative processes, interest representatives are subject to the same deadlines as members of parliament themselves. The challenge is, on the one hand, to continue to accompany procedures that are already underway, as well as to seek dialogue with the right bodies in good time. At the same time, the election campaign is accompanied and a strategy for the coming legislative period is developed.
In this context, it is crucial to gain an early and comprehensive picture of the majority situation that will emerge after the upcoming election and what instructions for action and opportunities may result from this. Timely and close monitoring of list compilations and procedures for drafting election programs helps in selecting future key contacts and identifying substantive points of contact.
Meanwhile, discussions at the ministerial working level can usually continue seamlessly. However, if the contact person in the ministry is a political official, he or she may be forced into early retirement if there is a change of government or if his or her ministry is taken over by another party, and thus lose relevance at least for the topic in question.
Exciting weeks for political actors
In federal politics, therefore, groundbreaking weeks are dawning that will present all the players involved with the challenge of simultaneously concluding procedures that are already underway and reorienting themselves with a view to the coming legislative period.
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