Abstract

Fact finding in the legislative process

In contrast to administrative procedures, the German constitution (Grundgesetz) does not set out any fact-finding requirements during the legislative process. However, in the age of disinformation, a solid factual basis is increasingly seen as crucial for the legitimacy of any legislative act. Therefore, there is a new debate on whether or not the legislator must incorporate distinct fact-finding elements in the legislative process. In the case law of the Bundesverfassungsgericht (Federal Constitutional Court), legislative facts have been traditionally used to justify infringements of fundamental rights on a material basis. However, unlike with administrative procedures (§ 24 VwVfG), there has been no procedural requirement to incorporate fact finding into the legislative process. However, in the case of legislative act concerning the governmental financing of political parties, the Court deviated from this long-standing precedent and required the Bundestag to incorporate specific procedural elements in the legislative process.

This article argues that fact finding elements are not necessary for the legality of parliamentary processes. Administrative and parliamentary processes are structurally different in that respect. The legislative process draws its legitimacy from the competitive nature of the political realm and is thus based on compromise and not strict deductive reasoning. However, there may be room for procedural requirements in exceptional circumstances, for instance where similar interests of all members of parliament prevent controversial deal making.