The German constitutional court and legislative capture

Abstract

Political decision-making is often influenced through the lobbying of strong interest groups. This is not per se a problem for democracy. It becomes a problem if political decisions are primarily motivated by the intention to grant certain interest groups a favor. This contribution deals with the question whether constitutional courts can play a role in curing this pathology of the political process. It has a normative and a reconstructive dimension. The normative part makes a case that constitutional courts should police interest group capture. However, the direct control of legislative motivation is an impossible task. For this reason, constitutional courts should recur to second-order criteria, which focus on the rationality of the legislation. If legislation lacks a tight means-end fit or is inconsistent, this is an indication that the legislature has pursued not only public-regarding aims. The reconstructive part analyzes the jurisprudence of the German Constitutional Court. In several judgments, the German Constitutional Court made allusions to a potential capture of the legislature. However, it never relied on legislative motivation to justify its decisions. Instead, it performed a rationality review and found that the legislation in question was either inconsistent or disproportionate. The contribution thus offers a new perspective on the traditional doctrines of proportionality and inconsistency. Even though these doctrines allow prima facie for a rationality review of the legislature, they can also be used to flush out illicit legislative motivations.