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Intra-Party Judicial Decision-Making and Conflict Resolution: A Political Approach

Nicole Bolleyer, Felix-Christopher von Nostitz and Nils-Christian Bormann (all University of

Exeter)

Paper prepared for the Worksop “Rethinking Intra-Party Cohesion in Time of Party

Transformation” for the ECPR Joint Session, April 25-30, 2017, Nottingham, UK

First Draft, Comments Welcome

Abstract: An examination of intra-party tribunals can offer major insights into how parties manage conflict, which is important to assure intra-party cohesion. Party tribunals can decide to rule in favour or against those initiating cases. More fundamentally, they can refuse to deal with cases altogether. Consequently, the question emerges whether these decisions are political driven or made on ‘neutral’ grounds. To address this question, we offer a political account of whether and why party tribunals accept or refuse to handle cases, starting from three party goals of policy, office and votes (Müller and Strøm, 1999). We test our hypotheses using a unique data set covering 1088 tribunal decisions in six German parties since the introduction of compulsory party tribunals in the 1967 Party Law. We use a mixed-effects probit model to estimate the likelihood of case acceptance. Our analysis finds that political factors related to office, policy and vote aspirations indeed affect decision-making at the acceptance stage of intra-party tribunals. With regard to policy, judges in ideologically united parties dismiss cases more easily than their counterparts in more divided parties. Concerning office, judges are more likely to accept a case after their party has lost government, as a move to the opposition weakens the ability of a party to downplay conflict. Despite examining this question in a country where a highly constraining party law tries to assure the independence of party tribunals through detailed provisions, political drivers are important, thus our findings raise questions as to what extent it is possible to effectively transplant court structures into an organisational setting.

Keywords: Conflict, Conflict Resolution, Elites, Party Members, Political Parties

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Introduction

The ability of parties to manage and ultimately resolve intra-party conflict is not only vital for

its organisational survival but also to achieve its functions within the political system. To do

so, parties just as other complex organizations adopt different kinds of conflict regulation

mechanisms (Rahim 2011; Smith and Gauja 2010; Bolleyer et al 2016). Here we focus on

intra-party tribunals, quasi-judicial bodies established within party organisations to resolve

internal disputes that aim to correspond to court structures within democratic states. In

order to function effectively, they are supposed be neutral, independent and fair. Indeed

parties often claim to emulate these norms in their conflict resolution procedures, especially

if strongly attached to democratic norms, yet as Rahat points out “…these organs are

suspected (often with reason) of being partial." (2013: 141). In addition, even in much more

regulated state settings, questions arise whether these standards are always maintained by

courts: for instance, the legal literature on judicial decision-making highlights the leeway of

judges to decide which "cases are worthy of their time and attention“ (Yates and Coggins:

286) and that judges’ partisan and policy preferences play a role in accepting cases (Zorn and

Bowie 2010).

While the role of political factors has been identified when courts decide cases, far

less attention has been paid to the acceptance stage (Hein and Ewert 2016). However,

exclusively considering the decision stage is problematic: it might make us overlook how

political pressures lead conflict to be bypassed and ignored, as judges refuse to deal with

cases ‘on formal grounds', and how possible political influences at an earlier stage of the

judicial process impact on its later stages. This is especially crucial if the decision stage itself

shows little sign of politicisation. If this is an issue in the operation of state courts, the

question emerges if we can observe similar influences of non–legal factors in the acceptance

stage of intra-party tribunals. Therefore this paper focuses on whether and how political or

strategic considerations linked to parties’ attempt to achieve the three core goals of vote

maximization, office holding and policy making (Müller and Strøm 1999) affect tribunal

judges' decision to take on a case or reject it, a decision that officially is justified on formal

grounds (the ‘acceptance stage'). In short, the central research question of this paper is

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whether intra-party tribunal decisions at the acceptance stage are politicised and if so what

party goals are influential in this process.

The paper explores this question for the German party tribunals operating within the strict

legal restrictions of the German Party Law of 1967, outlining in detail the set-up and

operation of independent and neutral party tribunals. It requires parties to have party

tribunal statutes that guarantee all participants the right to a court hearing, the right to a fair

process, and the replacement of judges in cases of bias (§14 Abs 4). Further, the Party Law

prohibits judges from having any leadership role in the party, to be employed by it or receive

a salary from the party in any form (§14 Abs 2). While judges can and do reject cases based

on formal error(s) or lack or merit, plaintiffs have the right to appeal this rejection leading to

a hearing of their case. This legal and organisational set-up makes Germany the least likely

case to find politicised judicial decision-making in an intra–party setting and therefore

constitutes a ‘hard case‘ to test or framework. If we find politicised judicial decision-making

here it is highly likely to play an even stronger role in less regulated intra-party dispute

mechanisms and thus challenges the existence intra-party democracies. This further points

to the challenge to effectively transplant court structures into any organisational setting.

The paper is theoretically innovative as it develops a new rationale based on party

goals to study the impact of political factors on intra-party conflict resolution. While

previous literature considered the impact of these goals in for example the study of coalition

formation and other aspects of party behaviour (see Pedersen 2012) they are rarely used to

study intra-party decision-making and even less so in the context of conflict resolution.

In empirical terms, the scenarios of intra-party dispute that are most intensively

studied tend to be those that are least representative of intra-organizational conflict

regulation: spectacular cases of disintegration, where conflict escalates and is displayed in

public – be it by leading figures, rank-and-file or both - regardless of the damage done to the

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party’s image or functioning.1 Similarly, if existing work deals with intra-party conflict and its

regulation, it does so in association with specific events (e.g. organisational reform), in

particular, arenas (e.g. as triggered by coalition dynamics and government participation) or

in specific types of parties (e.g. heavily factionalized parties). In contrast, party tribunals deal

on a day-to-day basis with the full range of conflict types emerging in party organisations

(e.g. procedural violations, infringement on member rights, application of sanctions against

members and elites). In addition, despite the specific legal and organizational setting of

intra-organizational tribunals, its study is insightful for understanding conflict regulation

generally as they can be initiated and thus used both by the party leadership (e.g. to

discipline party members or sub-units perceived as doing damage to the party) and by

ordinary rank-and-file members (e.g. to challenge leadership decisions that fall outside the

remit of the latter’s authority). Hence unlike other hierarchical mechanisms of conflict

regulation that allow for the imposition of solutions on actors against their preferences, they

are not a mechanism of either top down or bottom up control that procedurally privileges

one group of internal actors over the other. Consequently, the framework presented below

on factors that determine when cases are approved by the tribunals and when they are

rejected can generate broader insights into patterns of conflict regulation, processes that

otherwise are widely hidden. Thus, our findings provide a broader picture on party conflict

regulation than earlier studies.

Finally, our research has important normative repercussions, as initially the study of

democracy has been focused on elections and only later fully considered its important legal

underpinnings. Similarly, the study of intra-party democracy has so far been dominated by

an interest in ‘electoral mechanisms' (e.g. primaries) at the expense of its legal foundations,

which is why intra-organizational mechanisms established by parties to protect their

members' rights remain widely understudied (but see Smith and Gauja 2010; Biezen and

Piccio 2013; Rahat 2013; Bolleyer et al 2015). The study of such mechanisms gives important

answers to whether the emulation of legal standards is likely to be possible in intra-

organizational settings.

1Prominent examples are the Dutch List Pim Fortuyn (Reuter 2009; de Lange and Art 2011), New Democracy in

Sweden (Aylott 1995; Bale and Blomgren 2008; Jungar 2013), the Spanish UCD (Gunther and Hopkin 2002) or the Italian Christian Democrats (Bardi 1996; Boucek 2012 and 2009).

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The paper proceeds as follows. It first discusses the legal literature on the politicisation of

judicial decision-making, which further justifies the focus on the acceptance stage in this

paper. The paper then develops the theoretical rationale for party goals based on policy,

office, votes. It proposes a political account of tribunal decision-making focusing on the

acceptance stage of a case based on the three party goals of policy, office and vote identified

by Müller and Strøm (1999). Overall we propose six hypotheses with two derived from each

party goal respectively. The second part using a mixed effects probit model empirically tests

the hypotheses using a unique data set of 1088 tribunal decisions, covering all national

verdicts made in the course of six German parties’ life cycle since the introduction of

compulsory party tribunals by the party law in 1967, the CDU, CSU, FDP, SPD, Greens (1980-

2016) and the Left (2007-2016). The results suggest that dynamics derived from parties’

aspiration to exercise policy influence, gain office access and maximize votes significantly

affect whether cases are likely to be accepted by the tribunal. Judges operating in parties

that are programmatically highly coherent (policy) are less likely to accept cases; if a party

lost government (weakening the ability of the party to downplay conflict), judges are more

permissive in the approval of cases. Vote considerations are relevant in that the greater the

gains parties made at the last election (strengthening its position), and hence the stronger

the position of the party towards internal challenges, the less likely cases are to be accepted,

while vote losses have the opposite effect. These findings hold despite controlling for

variables such as case type (new case or appeal), the type of the initiator who brings a case

to the tribunal (rank-and-file or elite), and membership size. Simultaneously, we find that

none of the three party goals exerts a significant effect on winning cases. This suggests that

the influence of political variables seem less pronounced in the decision stage than the

acceptance stage – which echoes expectations of a less politicised decision stage highlighted

in the judicial literature (Richards and Kritzer 2002, Kastellec and Lax 2008). Thus,

interestingly it seems that the influence of political variables is stronger in the acceptance

stage, which is supposed to be a neutral process to reject cases based on formal grounds,

compared to the more public and therefore transparent decision stage. The paper concludes

with the broader repercussions of the findings and avenues for future research. Overall our

findings call for further investigation into the acceptance stage of tribunals both in the

literature on intra-party conflict but also the judicial literature more generally.

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1. Politicisation of Judicial Decision-Making

Starting out from the literature on judicial decision-making in state courts, politicisation of

court decision-making is defined as present if court rulings are not – or not exclusively –

based on legal criteria (Hein and Ewert 2016). Politicization thus refers to the instances in

which judges either are consciously or unconsciously influenced in their decision making “by

their political preferences or considerations regarding political appropriateness, or even

decide a case on the basis of political criteria and then prepare a legal reasoning to support

this” (Hein and Ewert 2014). There is a growing literature both in political science (Stone

Sweet 2000) and legal studies (see Hein and Ewert 2016 for an overview) on the role of

politicisation with regard to various aspects such as appointment of judges or judicial review.

Studies on the politicisation of the case selection process in courts are very limited and often

only focus on supreme courts (Kastellec and Lax 2008). Kastellec and Lax (2008) point out

that supreme court judges only have to take cases they deem of public importance or

concern an important legal issue, which gives them wide leeway to decide which “cases are

worthy of their time and attention “(Yates and Coggins: 286). Indeed in 2013 the Supreme

Court of the United States accepted only about 1% of the applications, the Supreme Court of

Canada admitted 10% and the Supreme Court of the UK admitted 35% (Mak 2015). On what

basis then do judges pick and choose their cases?

Hein and Ewert (2016) argue that court decisions generally are (co-)determined by political

influences such as the judges' political party affiliations, policy preferences, ethical or

religious beliefs and socio-cultural backgrounds. More specifically, scholars of the US

Supreme Court argue that judge’s partisan and policy preferences play a role in accepting

cases, stressing the role of ideology (Yates and Coggins 2009; Zorn and Bowie 2010).

Similarly, Joondeph (2008) highlights the impact of electoral politics when considering the

role of politics in judicial decision-making. Sheldon (1970) even conceptualises judges as

'politicians in robes' and argues that they do not systematically differ from other political

actors. Thus, for example, they can select cases in order to develop particular legal doctrines

(Kastellec and Lax 2008). Segal and Spath (2002: 240-41) further stress that while there are

certain instances where judges are less likely to refuse cases “for all practical purposes, the

justices are free to accept or reject cases brought to their attention as they see fit” and thus

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significant case sorting is performed by judges before there is even a hearing on them. Thus

such ideological and policy influence on case acceptance is in clear opposition to the purely

formal and procedural grounds on which case acceptance or rejection should be based

(Provine 1980: 15). Overall, this points to a clearly politicised acceptances stage of courts at

the state level.

What are the implications of this for the operation of intra-party tribunals? Given that

parties indeed often claim to emulate not only the norms but also procedures of courts on

the state level in their conflict resolution mechanisms, one might expect that judges’

decisions to accept or reject cases in intra-party tribunals are also affected by a political

rather than a purely legal calculus. They further might be affected by organisational

considerations as judges within parties have a vested interest in the success and survival of

their organisation. However, while the option to reject cases also exists for intra-party

tribunals, paradoxically, some party statutes (imposed by party law or voluntarily chosen)

restrict tribunals’ judges much more in this stage compared to judges at the state level, as

laid out in more detail later in the German case. This is the case even though intra-party

politics is perceived as naturally politicized by definition. In this light of this tension, this

study aims to see whether in the case of party tribunals Joondeph’s (2008: 348) observation

that the “determinants of judicial decisions, law and politics are in many respects

inextricably intertwined” also hold in intra-party settings.

2. A Political Account of Tribunal Decision-Making: The Importance of Policy, Office and

Votes

We propose a new framework on tribunal decision-making based on the three main party

goals of office, vote and policy identified Müller and Strøm (1999). The underlying rationale

is that through strategically selecting or rejecting cases judges can contribute to or reduce

threats to the fulfilment of these goals and, more fundamentally, contribute to

organisational stability. Müller and Strøm (1999) differentiate between three central goals

that parties tend to pursue simultaneously – policy, office and vote maximisation. Each goal

imposes its own constraints on a party and is likely to feedback into internal matters,

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including tribunal decision-making. As Müller and Strøm (1999: 9) point out parties might

not be able to realise all three goals simultaneously, and behaviour designed to achieve one

might not lead to the best possible outcome with respect to the others. For example, the

possibility to enter office might come with giving up certain policies, or, conversely,

promoting certain policies might either cost the party votes and offices. In short most times

there is a trade-off between the three goals and parties must decide which goal to prioritise.

Our framework allows us to capture how considerations related to these three goals might

affect the acceptance of cases by judges. Further Müller and Strøm (1999) stress that

elections happen only at intervals and thus parties long term electoral pursuits might

conflict with more immediate policy or office gratification. Lastly, change in external or

competitive environment will affect party goals, its priorities and the behaviour of parties.

By assuming that parties have multiple potentially conflicting goals allows us to disaggregate

them analytically to explain party behaviour and political pressure on judges in accepting

cases in more detail. Thus a 'balanced approach' considering all three goals of office, policy,

votes is most suitable to study the influence of political consideration on the judges’

propensity to accept or reject cases as this provides a full picture of judges non-legal

considerations during different stages and points. The exact connection between parties’

attempt to achieve each goal and judges’ propensity to accept or reject cases (i.e. deal or

ignore with conflict) is specified in the following.

Policy: Ideological Unity and Responsiveness to Intra-Organizational Conflict One of the main goals of parties is to maximise its impact on public policy (Müller and Strøm

1999: 7). But in order to do so effectively they need to present a coherent set of policies as

parties that appear divided over policies tend to lose elections (Greene 2014) and are less

likely to get into government (Bäck 2008). Lack of clear policy programme is often due to

ideological disunity in the party leading to divers or even opposing views regarding all party

aspects. This affects not only the intra-organizational decision-making processes but more

importantly here the shape of intra-party conflict regulation. Parties need to find a way to

internally absorb conflict resulting from ideological disunity before it becomes problematic

and damages their policy, vote and office seeking capabilities. Here party tribunals' play a

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crucial role. Up to a certain level tribunals can and actually prefer to ignore conflict as this

makes it less visible to the outside and might reduce it internally. However the less unified

the party is, the harder this becomes and the more tribunals become the main party

structures channelling dissent and containing conflict within the organisation and thus

limiting its external visibility. Thus while tribunals do not directly decide over ideological

conflicts their workload is reflected by it. The less ideologically unified a party the less willing

its members will be to accept internal decisions that are seen as controversial and

consequently become more willing to use a formal procedure in form the party tribunal to

challenge such decisions. Therefore the less united a party, the more it is pressed to

accommodate a variety of views, meaning judges are less in the position to refuse dealing

with cases as it otherwise might have negative external consequences of the party.

Conversely, we can expect judges operating in parties with high unity to be more able to

ignore conflict, in turn leading to lower acceptance rates and more restrictiveness in the

acceptance stage. This leads us to our first hypothesis:

H1.1 (Ideological Unity Hypothesis): Judges in ideologically united parties are less likely to

accept cases than judges in ideologically divided parties.

In addition to ideological divisions within the party, another factor that might affect the use

of tribunals is the membership and parties’ general attitude towards law, order and

obedience. Based on previous findings members of left parties are expected to be more

ready to challenge decisions and policy positions of the party elite compared to members of

more right-wing parties (Sandri and von Nostitz 2015). Further members also put more

emphasis on intra-party democracy and thus are more ready to highlight when procedures

were not conducted in a proper way. Given this, we expect judges in left parties to feel

more obligated and/or willing to accept cases, leading to our second hypothesis.

H1.2 (Ideological Position): The more conservative the party is the less likely judges are to accept a case. Office: Conflict Resolution Inside and Outside Government The second goal of parties identified by Müller and Strøm (1999: 5) is office. The successful

holding of government office has important intra-organizational repercussions. While a

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government party is busy implementing its program, its attention shifts from organisational

matters to the functioning of the party in public office (Katz and Mair 1995). Simultaneously,

government participation often brings its share of frustration to those in the organization

not involved in governing themselves, in terms of the compromises necessary in the making

of policy – especially in coalition governments – and the quite common decline in direct

accountability of those running government to the organization outside of the institutions

(e.g. Müller-Rommel and Poguntke 2002). This can fuel internal conflict and enhance the

need for conflict resolution in a period during which the public display of such conflict might

be particularly unwelcome. At the same time while in the government a party might be

more able to downplay or ignore internal conflict as there is more at stake in terms of the

reputation and image that might affect the party’s ability to effectively implement its

programme. Here judges can play a crucial role in supporting this effort by accepting fewer

cases.

H2.1 (Government Party Hypothesis): Judges are less likely to accept cases when their party is in government than when it is in opposition. As being in government might set incentives to downplay conflict, losing government is

usually triggering enhanced internal debate around explaining the party’s failure to stay in

office and the finding of measures to remedy whatever deficiencies were identified.

Research has shown that in these opposition periods parties’ lines of authority are

weakened (Courtney 1995: 262) and intra-organizational challenges and reforms become

particularly likely. For parties it is a chance for renewal (LeDuc 2001) and a possibility for the

organization to reconnect with members and voters. These periods often include reforms

that empower the members over party elites, which the latter might not have agreed to had

they not been in a position of weakness (i.e. had they not lost office) (Cross and Blais 2012).

Regarding conflict regulation, this suggests that government loss should make the process of

conflict resolution more permissive and improve the chances for a case to be accepted.

Consequently, judges might be more willing to accept cases because the party’s move to

opposition weakens their ability to downplay conflict in the name of protecting the party in

government and, at the same time, there is less at stake by displaying conflict when in

opposition.

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H2.2 (Government Loss Hypothesis): Judges are more likely to accept a case after their party has lost government

Vote Maximisation and the Bypassing of Conflict

The third goal that motivates parties’ behaviour is vote maximisation with the aim to receive

more votes than the other parties and thus win elections (Müller and Strøm 1999: 8).

Achieving this goal is also vital to achieving the other two goals of office and policy.

Therefore parties are most likely to reform both in terms of policy, personnel and

organisation if they underperformed in the latest election in terms of votes. In fact, Janda

(1990: 5) describes electoral defeat as the ‘‘mother of party change’’. Besides forcing parties

to re-evaluate their ideological position, electoral defeat also frequently involves reassessing

internal structures and processes (Harmel and Janda, 1994). Due to the political pressures

resulting from electoral underperformance, we can expect the new situation to also affect

how tribunals deal with cases submitted to them. These periods often involve debates

around how internal processes work, how decisions are made and intense internal

arguments over mistakes made to explain vote loss. It becomes difficult for the weakened

party to downplay or ignore conflict and as the readiness to give in to demands of intra-

organizational reform increases; the organisation might also be more permissive in the

explicit and more public handling of the conflict in the context of intra-party tribunals. This

suggests that after a loss of seats during elections, more cases should make it through the

approval stage of the tribunals.

H3.1 (Vote Gain Hypothesis): Judges are less likely to accept cases the more a party’s electoral performance improves.

Theorizing the repercussions of parties’ vote aspirations, the timing of when intra-party

conflict is handled is important. Clarke (2013) distinguishes between conflict occurring over

the entire inter-electoral period and conflict that occurs in the months immediately prior to

election day. With regard to the latter, he further argues that the closer parties get to the

next election the more likely they are to draw the media’s spotlight and thus want to

present themselves as unified. Furthermore, conflict closer to election day will be recalled

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by voters when going to the polls, and thus might have a negative impact on the party’s

electoral prospects (Clark 2013). This is echoed by Traber et al (2013: 194) stating that

“elections are likely to play an important role in the quest for party unity”. Therefore, party

unity is intrinsic and essential in achieving the vote maximisation goal in itself but is also key

to realising office and policy goals (Müller and Strøm 1999, Andeweg et al 2011). Close to

elections, tribunal judges might therefore be incentivized to accept fewer cases.

Consequently, following Skjaeveland’s (1999), Lindstadt et al.’s (2011) and Traber et al

(2013) lead we assess whether in the running up to elections parties aim to present

themselves as more unified, leading to our final hypothesis:

H3.2 (Days Until Election) The closer a case is to the next election day the less likely judges

are to accept the case.

3. Case Selection: Germany as Least Likely Setting for ‘Tribunal Politicization’

Applying conceptions of rule of law to intra-organizational settings (Agrast et al 2010), party

tribunals can be seen as formally independent and can be considered as equivalent to ‘state

courts’ if neither members of the party in public office nor central office (the two groups

that constitute the party leadership) are allowed to take a formal role in them. Such

structures can be chosen by parties voluntarily or, alternatively, be imposed by party

legislation. Indeed, the German party law introduced in 1967 requires parties to assure their

members’ right to dissent and prescribes in great detail the type of tribunals to be

established (Biezen and Piccio 2013). The law prescribes three areas that affect intra-

organizational conflict regulation: ‘rights of members’, ‘party tribunals’ and ‘measures

against regional party units’ (De Petris 2000: 54). Specifically, it requires tribunals to be

independent, thus sitting on a tribunal is incompatible with membership in the party

executive (Biezen and Piccio 2013: 39-40). Reflecting this legal environment, the statutes of

German parties – CDU, CSU, Left, Greens, SPD and FDP – have established tribunals whose

independence is ensured by a number of intra-organizational rules2: incompatibility of

2Die Linke: http://www.die-linke.de/fileadmin/download/dokumente/ordnungen_mai2014/ordnungen_der_partei_die_linke__stand_mai2014.pdf(p. 5-11) The Greens: https://www.gruene.de/fileadmin/user_upload/Dokumente/Satzung/150425_-_Satzung_Bundesverband.pdf (p.75-82)

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tribunal membership with any party office (§14 Abs 2)3, members of tribunals have to be

(re)elected at least every two or four years by the party congress, all participants in a case -

judge, plaintiff or defendant - can apply to request the replacement of a judge given

suspicion of bias (§14 Abs 4) and judges are obliged to report any conflict of interest they

might encounter in a case and have to excuse themselves from the trial. By trying to

replicate court structures on the state level, these provisions should assure a neutral and

efficient decision-making process unaffected by political influences, strategic considerations

or other sources of bias unrelated to the nature of the case.4 Independence and thus

absence of bias suggest that cases should be judged exclusively based on their own merit, in

the acceptance stage based on whether cases meet all formal criteria to be heard or not,

and in the decision stage based on the quality of the evidence brought forward to prove or

disprove the violation of party rules posited by a submission. This makes the German case a

‘least likely case’ for finding support for our hypotheses that expects parties’ strategic

attempts of goal attainment and reconciliation to feed into tribunal decision-making. If we

find politicised judicial decision-making here it is highly likely to play an even stronger role in

less regulated intra-party dispute mechanisms and thus challenges the existence intra-party

democracies.

This strict legal environment is particularly relevant in the acceptance stage. Across all

parties covered here the party statutes clearly outline and limit the possibilities for judges to

reject a case without opening a hearing. It is possible to identify three main justifications

judges can use and all three are narrowly circumscribed: formal mistakes, cases outside

tribunal's jurisdiction, and cases without merit. The first justification is to reject a case based

on formal mistakes such as missing official deadlines or providing incomplete claims. In

addition, there are formal deadlines such as the limited time to file appeals after the verdict

SPD: https://www3.spd.de/linkableblob/1852/data/ CDU: https://www.cdu.de/system/tdf/media/statutenbroschuere.pdf?file=1 CSU: http://www.csu.de/common/csu/content/csu/hauptnavigation/partei/satzung/CSU-Satzung-Nov2015-ES.pdf FDP: https://www.fdp.de/sites/default/files/uploads/2016/01/26/schiedsgerichtsordnung2013.pdf 3This also includes public office, central office and any employee of the party or any of its organs. Further they

must not receive a salary from the party in any form 4 Thus a “party tribunal” for conflict resolution that is chaired by the party leader or run by members of the executive would not qualify as the equivalent of a “court” since it lacks formal independence from those who hold core powers in the party. Such structures would qualify as hierarchical and leadership controlled instead (see Bolleyer et al. 2016).

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or ability to challenge internal election results. However such rejection should be rare as all

the rules and statutes of the tribunal are publically available and include the details the

formal requirements. The second justification for a formal rejection is that the plaintiff’s

claim lies outside the tribunal’s jurisdiction or the plaintiff did not follow the correct legal

path through the lower tribunal. However, this does not necessarily mean there is no merit

in the claim it was just submitted to wrong tribunal at the wrong time. Again rejection based

on these two justifications should be limited as for all parties covered here the tribunal’s

areas of responsibilities are clearly defined in party statutes and that in most instances

plaintiffs first have to approach lower tribunals. The last rejection is that judges perceive the

plaintiffs claim to be without merit. Here judges see no legal base for plaintiffs’ complaints in

the party statutes or the plaintiffs fail to include or clearly justify the legal basis for the

complaint. Thus whether or not a case is accepted depends on the presiding judge’s

interpretation of the law and as such might be affected consciously or not by non-legal

factors such as party goals and other political considerations.

In summary, the party tribunal can refuse to take on cases that are incomplete, inadmissible

(outside the tribunal's jurisdiction) or without merit. However, overall judges should have

very little leeway to reject cases. Importantly, whatever the reason for non-acceptance, the

initiator, usually within a certain time period, can challenge the tribunal’s decision and

request the opening of tribunal hearing, leading to a reassessment. This further reduces the

likelihood of judges rejecting cases easily.

Covering all parties constituting the German party system over an extensive time period has

several methodological advantages regarding our ability to test our hypotheses due to the

composition of the resulting sample of tribunal decisions and the contextual conditions in

which these decisions were made (Slater and Ziblatt 2013: 1311-13). The German Party Law

was adopted in 1967. Neither the party law nor the parties’ statutes implementing it have

made significant changes in the regulation of party tribunals. Thus, core procedural

requirements regarding tribunals’ composition and operation were constant for all tribunal

decisions made across the parties, factors that might have affected tribunal decision-making

otherwise. As our parties cover a wide spectrum of intra-organizational decision-making

cultures, we therefore also cover a wide a variety of tribunal submissions as well as tribunal

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outcomes. This, in turn, should enhance our sample’s representativeness regarding the

types of conflicts parties have to deal with generally as well as of the diverse ways of

responding to such conflicts. Finally, tribunal documentation is available for an ideologically

diverse set of parties up to a 48-year period (1967– end of 2015). During this period parties

joined and left national government, experienced electoral victories and defeats and

repeatedly revised their party programs, allowing us to test the influence of the core

variables in our theoretical framework across parties and over time.

4. Data, Coding and Measurement

Our analysis covers all cases of parliamentary parties' national tribunals decided since the

introduction of the 1967 German Party Law until 2015. Tribunal documentation about cases

in the Greens, CDU, CSU, SPD and FDP was compiled by the Institut für Deutsches und

Internationales Parteienrecht und Parteienforschung (PRuF) at the University of Dusseldorf.5

Tribunal documentation for the Left Party was taken from the Left Party’s own website.6 To

test our hypotheses, we created a new dataset based on the tribunal documentation just

described which captured a range of additional case characteristics (see dependent and

control variable section). Thanks to the high level of formalisation of these party procedures

and the clear documentation of each tribunal case, coding decisions, guided by a codebook

capturing all the core variables, were straightforward and unambiguous.7

Dependent Variables. The coding of whether a case was approved or not (i.e. admitted to

the tribunal in the first place), was straightforward as the rejection of a case has to be

justified in writing to the initiator indicating which procedural requirement it violated to

5Institut für Deutsches und Internationales Parteienrecht und Parteienforschung Schiedsgerichtsurteile der

obersten Parteischiedsgerichte (PRuF) http://docserv.uni-duesseldorf.de/search/search-judgment.xml 6Die Link. Beschlüsse der Bundesschiedskommission http://www.die-linke.de/partei/weitere-

strukturen/gewaehlte-gremien/schiedskommission/beschluesse-der-bundesschiedskommission/ 7In all three parties, in order to start a tribunal case the initiator must provide the following information in

written form: (1) Name, address and further contact details of initiator, (2) Name and address of the defendant, (3) Clear, unambiguous claim and (4) Reasons for the initiative including a description of the events based on which accusations are made. Once the tribunal receives the claim it reviews the case and either accept, it leading to a hearing, or rejects the case based on lack of merit or failure to comply with all formal requirements. In case of rejection, the jury is required to send all participants a written justification for it. It has to include the following information: the evidence provided related to the case and a justification of the tribunal decision with reference to the same evidence. Further, it needs to stress that plaintiff can appeal the initial rejection if they wish to do so.

16

prevent its consideration by the tribunal. This was coded based on the section of the trial

documentation presenting the tribunal decision (always starting with the words “the

tribunal decided…”). In a case of reject, this section identifies the reason for it as either

based on being incomplete (formal error), inadmissible (outside the tribunal’s jurisdiction)

or without legal merit. We further coded, once a case was accepted if the initiator won the

case or not. Again this was straightforward and was coded based on the same element of

the written tribunal decision as above.

Explanatory Variables. To measure Ideological Unity (H1.1) we use Giebler et al’s measure of

programmatic clarity (2015) which captures how clear party policy positions are within

parties’ election manifestos based on Comparative Party Manifesto (CMP) data (Volkens et al

2016). Measured for each election on a continuous scale between zero (inconsistent party

policy) and one (fully consistent), we assign the value from the latest available election to

each case. Maximum policy clarity and therefore ideological unity is given when a party

presents only positive or negative statements in a certain policy area and no policies in the

opposite direction. In contrast, if a party presents both positive and negative statements in

a policy area, policy clarity and therefore ideological unity decreases. To further assess policy

dynamics, we code the Ideology (Open-Closed) variable. It also derives from the CMP data

and scores each party on its ideological position on a continuum ranging from very open

progressive positions (negative values) towards more closed and conservative worldviews

(positive values). Doing so, it reflects the well-known GAL-TAN dimension introduced by the

Chapel Hill Expert Survey (Bakker et al 2015) capturing parties’ position on the liberation/

post-materialist to traditional/authoritarian ideological spectrum.

To capture the governmental dynamics of our office logic we use two dummies: First, our

Government Status (H2.1) variable distinguishes cases in government parties (1) from those

in opposition parties (0). Second, our Government Loss (H2.2) variable codes the first year

after a party loses governmental power as (1) and the remaining years as (0).

To assess the validity of our vote hypotheses, we calculate the Vote Loss variable on the basis

of the ParlGov database (Döring and Manow 2016) by taking the absolute difference in vote

shares in the past two elections. For example, if a party gains 20% in 2013 and 25% in 2010

we would code a 5% vote loss for all cases after the 2013 election. When parties gain votes,

17

we code a zero. Finally, we construct Days to Election variable that counts the days until the

next election. It reaches (0) on the day of the election and is reset at the time until the next

election approaches on the day after the election.

Control Variables. To control for alternative explanations that might affect acceptance we

add several variables to all specifications. Our first control variable assesses whether the

case brought forward was an appeal or not. Most initiators likely appeal after the party

tribunals rejected their original cases due to technical inadequacies, and we thus expect a

higher acceptance rate of appeals. Second, our Subject variable controls whether the case

covers organisational challenges (1) or membership expulsion (0). As the latter can be

essential to sustain the organisation's integrity and are less costly for the organisation to

implement we expect that organisational challenges are more often rejected by tribunals

(Cross and Katz 2013: 181). Third, we control for the role of the initiator within the party.

Classical works predict an ‘iron law of oligarchy' (Michels 1962: 64, 70; Duverger 1964) that

would seem to suggest that cases brought forward by party elites, that is public and party

office-holders, should be more likely to get through the acceptance stage than cases

initiated by rank and file members. Fourth, party age, measured in years, distinguishes

between more institutionalised parties and younger ones with a high influx of new

members. More institutionalised parties can afford to accept more cases as they pose lower

threats to party survival. Finally, we control for membership size. Larger parties feature more

members and more diverse opinions. They may thus be more selective in which cases they

accept than their smaller counterparts. We derive membership figures from the MAPP

project database (Spier 2014). We log both party age and membership size as the Social

Democrats prove to be an outlier on both measures.

4.1 Overview of Tribunal Cases

Table 1 gives an overview of cases submitted by party since 1967 (introduction of party law)

or since their formation, in the case of new parties. More particularly, it shows how many

made it to the decision stage.

18

Table 1: Tribunal Decisions in German Parties

Party Name

Period covered

No. of Approval Stage Cases

No. of Decision Stage Cases

Share of Decision Stage Cases

CDU 1967-2015 329 245 0.744681

CSU 1967-2015 102 72 0.705882

FDP 1967-2015 98 88 0.897959

Greens 1980-2015 92 76 0.826087

Left 2007-2015 114 75 0.657895

SPD 1967-2015 353 240 0.679887

Total 1967-2015 1088 796

Figure 1 displays the acceptance rate over ten five-year periods by party. It becomes

immediately apparent that our data do not only contain differences between parties but

vary substantially over time. No consistent trend across parties emerges. Newly founded

parties such as the Greens and the Left see a considerable increase in the number of cases

accepted by their tribunals in the second period after they enter our sample. Yet we see a

similar uptick in the Social Democrats’ accepted cases in their second period. Clearly, the

Social Democrats were not ‘new kids on the block’ in the second half of the 1970s.

Moreover, the increase in accepted cases for the Greens is far less steep than the increase

for Social Democrats and the Left. In contrast, the CDU, the CSU, and the FDP experience far

milder changes in the number of accepted cases.

19

Figure 1: Number of Approved Cases by Party over Time

5. Findings

5.1 Model Choice

We estimate the likelihood of acceptance by using a mixed effects probit model with

random intercepts for each party. As Figure 1 revealed substantial differences between

parties, the random intercepts help us capture residual variance not picked up by our

controls.8 We opt for a probit over a logit specification to facilitate comparisons with

Heckman selection (probit) models that integrate the acceptance and outcome stages of

tribunal cases. To preview our results, we find strong support for a systematic operation of

the political logic in the acceptance but not in the outcome stage of party tribunal cases in

line with our theoretical expectations. While this might suggest a possible selection effect

for the outcome stage, we find no evidence for such an effect when running Heckman

selection models.9

8 We also tried party fixed effects models without substantial difference. 9 The Heckman models confirm the results estimated in independent acceptance and outcome models. The results are available upon request

20

5. 2 Findings

Table 2 provides the results of our analyses on which factors shape the likelihood of

tribunals accepting or rejecting cases. While Model 1 only shows the control variables (base

model), Models 2-4 reflect variables associated with each of our three hypotheses that

capture our policy, office and votes arguments. Model 5 combines all hypothesis tests into

one model.

In Models 2-4, we find strong support for our theoretical arguments. Lack of ideological

unity decreases the likelihood of acceptance as outlined in H1. In line with H2.1 parties in

government are associated with a greater acceptance of cases relative to long-time

opposition parties, and so are parties that recently lost governmental power (H2.2). Finally,

successful elections result in lower acceptance of cases as predicted by H3. In sum, tested

separately each of our main arguments is supported by the data. This is a striking result

given that the leeway for judges to reject cases for reasons other than procedural violations

should not exist.

Turning to our integrated Model 5, we continue to find support for our theoretical rationale

but confidence H3.2 decreases. Both ideological unity and a recent loss of government

power continue to be statistically significant at conventional levels. Our vote gain variable

drops to the .1% level and government party status fails to reach statistical significance

entirely, if barely so. The high correlation between gaining votes and ruling the country

partially accounts for this increased uncertainty. Nevertheless, there seems to be an

independent effect of recent electoral success even for parties that do not make it into

government.

21

Table 2: Determinants of Case Acceptance by German Party Tribunals

(1) (2) (3) (4) (5)

DV: Case accepted

Ideological Unity

-1.159+ (0.615)

-1.151+ (0.615)

Ideology (Open-Closed)

0.00806* (0.00360)

0.00950* (0.00382)

Government Party

0.0878 (0.101)

0.0462 (0.109)

Government Loss

(last year)

1.139* (0.444)

0.925* (0.439)

Vote Loss

0.0586* (0.0242)

0.0811* (0.0256)

Days Until Election

0.000208* (0.000105)

0.000190+ (0.000106)

Appeal 0.512* (0.112)

0.506* (0.109)

0.499* (0.112)

0.481* (0.112)

0.439* (0.111)

Subject Matter -0.278* (0.0967)

-0.268* (0.0952)

-0.282* (0.0970)

-0.273* (0.0973)

-0.285* (0.0963)

Initiator 0.111 (0.0966)

0.107 (0.0947)

0.109 (0.0970)

0.118 (0.0975)

0.131 (0.0962)

Party Age (log) 0.214* (0.0804)

0.0751 (0.0712)

0.174* (0.0811)

0.146+ (0.0810)

-0.00326 (0.0773)

Membership Size (log) -0.327* (0.0750)

-0.297* (0.0708)

-0.310* (0.0722)

-0.309* (0.0733)

-0.284* (0.0719)

Constant 3.732* (0.773)

4.914* (0.708)

3.617* (0.741)

3.553* (0.755)

4.805* (0.711)

Party-Random Effect 0.0123 (0.0124)

1.31e-30 (7.48e-16)

0.00917 (0.0108)

0.0107 (0.0120)

7.74e-31 (1.56e-16)

Observations 1047 1044 1047 1044 1044

Standard errors in parentheses

+ p < 0.10, * p < 0.05

The estimates of our controls reveal mixed results. In line with existing expectations, appeals

are more likely to make it through the approval stage, as are cases of membership expulsion.

In contrast, judges of larger parties consistently seem to accept cases at a lower frequency

than judges of smaller parties. Although party elites have a slightly higher likelihood of

22

seeing their cases accepted we cannot reject the null hypothesis of no difference between

elites and normal party members. The effect of party age is inconsistent. In two out of five

specifications, the estimate of party age is positively and statistically significantly related to

higher rates of acceptance. Yet it even turns negative in our complete model.

Substantively, ideological unity exerts by far the largest effect on the likelihood of

acceptance (future versions will contain predicted probabilities). The only variable that

comes close to the estimated effect of ideological unity is logged membership size. All other

variables reach at most half the substantive impact of the factor associated with our first

hypothesis. After accounting for these controls, little variation remains between parties. The

random intercepts for each party only explain a minute part of the overall variance.

In essence, our findings so far suggest that strategic considerations related to parties’

attempts to achieve central goals –policy, office, and votes - affect whether judges are likely

to deal with instances of conflict and decide on them or avoid making decisions on them

altogether, thereby bypassing conflict within the organization due to political considerations.

Indeed, hypotheses related to the pursuit of all three party goals showed significant effects

in the theoretically expected direction.

Yet do we find political variables also to play a role in the decision stage determining

whether initiators win or lose their cases or do they mainly affect the tendencies of judges

to ignore conflict? Table 3 presents the findings for the same variables in the decision stage

and how they affect the ruling of judges either in favour or against the plaintiffs claim. We

find that an approved appeal plays a role but we find the opposite sign, with appeals more

likely to be accepted but less likely to be won. In contrast to the acceptance stage, whether

or not the initiator is a party official seems to affect the outcome of cases. Cases initiated by

party office-holders are indeed more likely to be won. Overall, however, the findings

displayed suggest that the core political variables as theorised in our framework to play less

of a role in the decision compared to the acceptance stage. This again highlights the need to

study the acceptance stage of party tribunals and courts more generally as we otherwise

might overlook non-legal factors that influences judicial decision-making.

23

Table 3: Determinants of Case Decisions by German Party Tribunals

(6) (7) (8) (9) (10)

DV: Case won

Ideological Unity

-0.492 (0.529)

-0.582 (0.473)

Ideology (Open-Closed)

-0.00561 (0.00399)

-0.00349 (0.00345)

Government Party

-0.240* (0.110)

-0.130 (0.114)

Government Loss

-0.161 (0.245)

-0.164 (0.247)

Vote Loss

0.0478* (0.0217)

0.0445* (0.0226)

Time Until Election

-0.000139 (0.000112)

-0.000117 (0.000114)

Appeal -0.409* (0.157)

-0.377* (0.179)

-0.436* (0.156)

-0.413* (0.169)

-0.336* (0.129)

Subject Matter -0.0440 (0.0994)

-0.0496 (0.0994)

-0.0429 (0.100)

-0.0518 (0.0995)

-0.0535 (0.0990)

Initiator 0.379* (0.102)

0.384* (0.101)

0.369* (0.102)

0.383* (0.102)

0.381* (0.0989)

Party Age (log) -0.0875 (0.130)

-0.00732 (0.132)

-0.0617 (0.154)

-0.0737 (0.124)

0.0364 (0.0652)

Constant 0.316 (0.500)

0.326 (0.693)

0.359 (0.577)

0.315 (0.495)

0.362 (0.478)

Party-Random Effect 0.0374 (0.0551)

0.0158 (0.0410)

0.0552 (0.0757)

0.0221 (0.0461)

5.67e-29 (3.50e-15)

Observations 771 771 771 771 771

Standard errors in parentheses + p < 0.10, * p < 0.05 Conclusions

This paper set out to explore if in an intra-organisational setting judges’ decisions to

accept or reject cases are influenced by the political dynamics of parties’ policy, office, and

vote goals. To do so the paper first discusses the judicial literature on the politicisation of

24

judicial decision-making. This further highlighted the need to focus on the acceptance stage

in the judicial decision making process. It then developed a new theoretical framework to

explore the influence of parties’ policy, office and vote goals on a judge's propensity to

accept or reject a case. In total, we proposed six hypotheses. The empirical analysis

confirmed most of the expectations when we tested our hypotheses separately: lack of

ideological unity decreases the likelihood of acceptance (H1.1), parties in government are

associated with a greater acceptance of cases (H2.1) and so are parties that recently lost

governmental power (H2.2). Finally, successful elections result in lower acceptance of cases

as predicted by H3.1. In our integrated Model 5, we continued to find support for our

theoretical rationale but confidence in H2.1 and H3.2 decreased. Both ideological unity and

a recent loss of government power continued to be statistically significant at conventional

levels. In essence, our findings so far suggest that strategic considerations related to parties’

attempts to achieve central goals –policy, office, and votes - affect whether judges accept

cases or not. This is a striking result given that the leeway for judges to reject cases for

reasons other than procedural violations should not exist.

In conclusion, despite the high legalisation of intra-party conflict resolution in

Germany political parties, political influences as theorised by our framework still matter for

decisions made by tribunals. Furthermore, these influences operate more visibly in the

acceptance stage, indicating that political pressures and parties' strategic considerations

seem to be more relevant for whether to deal with a conflict at all than in whose favour

judges decide. More broadly speaking this stresses the importance, for both political science

but also judicial literature, of focusing more on the acceptance stage in a judge’s decision

making as we otherwise might overlook important political influences. Here it would be

interesting to explore the influence of these three party goals in further cases where the law

also require internal party tribunals such as for example in the Czech Republic, Romania and

Portugal (van Biezen and Piccio 2013). Beyond this, our findings partly challenge the political

neutrality of the tribunals and raise questions as to what extent it is possible to effectively

transplant court structures into an organisational setting.

25

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