Art. 137 BV — Political Parties

#Doctrine

#1. Legislative History

N. 1 The inclusion of a political parties article in the Federal Constitution was intensively discussed during the total revision. The Constitutional Commission of the Council of States originally wanted to include more comprehensive regulation with provisions on party financing. However, a minimalist solution prevailed in the parliamentary procedure. The rapporteur in the Council of States made clear: «The Commission is clearly of the view that this provision does not constitute a basis for financing» (Tschannen, BSK BV, Art. 137 N. 24). The Federal Council's message of 20 November 1996 on the new Federal Constitution (BBl 1997 I 1, 347) emphasised that Art. 137 was merely intended to acknowledge the factual role of parties under constitutional law, without creating new rights or duties.

N. 2 During the consultation procedure, there was controversial discussion about whether the provision should have a purely descriptive or normative character. The council records show that the commission majority understood Art. 137 as merely descriptive (Frick, cited in Tschannen, BSK BV, Art. 137 N. 6). Nevertheless, the view prevailed in legal doctrine that the parties article should be understood normatively, even if its regulatory content might be limited (Tschannen, BSK BV, Art. 137 N. 2).

#2. Systematic Classification

N. 3 Art. 137 BV is located in Title 4 (People and Cantons) of the Federal Constitution, immediately before the provisions on the popular initiative (→ Art. 138–142 BV) and after the provisions on the exercise of political rights (→ Art. 136 BV). This systematic position underlines the role of parties as a link between those entitled to vote and state institutions.

N. 4 The provision has close connections to fundamental rights, particularly to freedom of association (→ Art. 23 BV), freedom of expression (→ Art. 16 BV) and freedom of assembly (→ Art. 22 BV). Political parties are primarily associations under private law within the meaning of Art. 60 ff. CC, whose special function in the democratic system is constitutionally recognised by Art. 137 BV (Schiess Rütimann, Politische Parteien, 2011, 45 ff.).

N. 5 In the context of political rights (→ Art. 34 BV), Art. 137 BV specifies the institutional dimension of democratic participation. The parties function as mediators between the individual rights dimension of political rights and the collective will formation of the people.

#3. Elements of the Offence / Normative Content

N. 6 «The political parties»: The constitutional legislator deliberately uses the indefinite term «political party» without further definition. According to prevailing doctrine (Rhinow, recht 1986, 108; Ladner, in: Klöti, Handbuch, 321 f.; Schiess Rütimann, Politische Parteien, 2011, 67 ff.), political parties are associations of citizens that:

• are established permanently
• pursue common political goals
• wish to participate in political opinion and will formation
• participate in elections and votes

N. 7 The legal form is not decisive. Parties regularly organise themselves as associations under Art. 60 ff. CC, but can also exist informally. What is decisive is the factual function in the political system (Tschannen, BSK BV, Art. 137 N. 8–10). The controversial parties register at federal level (Art. 76a para. 1 PERA) does not change the basic freedom of form, but is criticised by parts of legal doctrine as a violation of political equality (Schiess Rütimann, ZBl 2006, 512 f.).

N. 8 «participate ... in»: Participation includes all legitimate forms of political activity: organising election campaigns, launching initiatives and referendums, taking positions on political issues, recruiting and training political personnel, parliamentary group work (→ Art. 61 ParlA). The wording is deliberately kept open and does not exclude new forms of political participation.

N. 9 «opinion and will formation»: The Constitution distinguishes between opinion formation (discourse, deliberation) and will formation (decision, voting). Parties are active in both phases: They structure public discourse, aggregate interests, formulate alternatives and mobilise for concrete decisions. This dual function makes them indispensable actors in democracy (Rhinow, VVDStRL 1986, 91 ff.).

N. 10 «of the people»: The concept of the people is to be understood in the sense of Art. 136 BV as the entirety of those entitled to vote. The parties thus participate in the formation of the democratic common will, but are not its sole bearers. Citizens' initiatives, associations and other organisations of civil society also have their place in the democratic process.

#4. Legal Consequences

N. 11 According to prevailing doctrine, Art. 137 BV does not establish direct subjective rights of the parties (Tschannen, BSK BV, Art. 137 N. 4; Rhinow, recht 1986, 117). The provision has primarily an objective legal character and recognises parties as necessary institutions of democracy.

N. 12 As an institutional guarantee, Art. 137 BV obligates the legislator to design the framework conditions for party activity so that parties can fulfil their constitutional function. This includes:

• Guarantee of freedom of association for political purposes
• Equal opportunities in political competition
• Access to the media while preserving diversity of opinion
• Protection from state paternalism or discrimination

N. 13 It is disputed whether Art. 137 BV forms a constitutional basis for state party financing. The legislative history speaks against this (above N. 1). However, recent doctrine affirms at least the permissibility of state support, provided it preserves equal opportunities (Caroni, ZSR 2013 II, 45 ff.; Belser/Hänni, in: FS Borghi, 2011, 38 ff.). The concrete design remains left to the legislator.

#5. Controversies

N. 14 Legal nature of Art. 137 BV: The central point of contention concerns the legal nature of the provision. Frick (cited in Tschannen, BSK BV, Art. 137 N. 6) takes the position, referring to the council debates, that Art. 137 is purely declaratory. In contrast, Tschannen (BSK BV, Art. 137 N. 2) emphasises that the parties article must be understood normatively, even if the regulatory content may be limited. This controversy has practical consequences for deriving concrete rights and duties from the provision.

N. 15 Party financing: The question of transparency and state support is fiercely disputed. Caroni (Geld und Politik, 2009, 234 ff.) advocates for comprehensive disclosure obligations following international models. Conservative voices warn against a nationalisation of parties and emphasise their private law character (Schmid, Politische Parteien, 1981, 156 ff.). The legislator has so far shown restraint.

N. 16 Parties register: Schiess Rütimann (ZBl 2006, 522 f.) criticises the parties register under Art. 76a PERA as a «violation of political equality and overextension of Art. 137 BV». She argues that registration creates unjustified privileges for established parties. Supporters see it as a legitimate regulatory instrument to ensure transparency in the electoral process.

#6. Practical Guidance

N. 17 Political parties should constitute themselves as associations under Art. 60 ff. CC in order to acquire legal personality. The statutes must fulfil the requirements of Art. 60 para. 2 CC (purpose, means, organisation). For registration in the parties register under Art. 76a PERA, the requirements of Art. 24 PERA must additionally be observed.

N. 18 In the case of state contributions to parties, strict attention must be paid to equal opportunities. Distribution keys must be transparent and objectively justified. Federal Court jurisprudence (BGE 113 Ia 291; BGE 124 I 55) requires neutrality and proportionality. Preferential treatment of established parties is only permissible for objective reasons (e.g. threshold clauses).

N. 19 In the digital age, new forms of political participation are gaining importance. Parties must face the challenge of combining traditional organisational and communication forms with digital instruments. Data protection requirements (→ Art. 13 para. 2 BV) must be observed, particularly when processing member and supporter data.

Art. 137 FC — Political Parties

#Case Law

#Fundamental Significance of the Provision

There is only very limited Federal Supreme Court case law on Art. 137 FC as such. This is characteristic of the programmatic nature of the provision, which does not establish immediate subjective rights, but rather enshrines the constitutional recognition of the role of political parties in the democratic system.

#I. Parties in the Democratic Opinion-Formation Process

BGE 113 Ia 291 of 3 June 1987
Financing of election advertisements by public authorities
The Federal Supreme Court emphasises the central role of parties in the democratic opinion-formation process and their importance for a vibrant democracy. At the same time, however, it sets out limits on state party funding.

«Federal constitutional law does not prohibit supporting parties and their parliamentary groups financially or otherwise; indeed, such measures may prove necessary today in the interest of a vibrant democracy. However, if such assistance occurs in the context of an election campaign, it is only permissible, like direct interventions, if it proves to be clearly neutral with regard to the opinion-formation and expression of will of the voters.»

BGE 124 I 55 of 1 April 1998
State contributions to parties in elections
The Court specifies the principles for state party financing and its constitutional limits under the aspect of equal opportunities.

«With the present appeal, the appellant claims entitlement to a financial contribution for its participation in the cantonal parliament elections. The appeal thus concerns an area that can be described as promotion, support and financing of political parties. This topic is being discussed on a broad basis abroad and more recently also in Switzerland.»

#II. Programmatic Character of Constitutional Party Provisions

BGE 131 I 366 of 3 May 2005
Consideration of political orientations in appointments
The Federal Supreme Court clarifies that constitutional provisions on political parties are generally of a programmatic nature and do not establish immediate subjective rights.

«The provision of Art. 60 KV/SO, according to which political orientations are to be considered in the appointment of public offices, is of a programmatic nature and does not grant political parties a constitutional right to minority protection.»

This case law applies analogously to Art. 137 FC, which also has a programmatic character.

#III. Parties and Free Opinion Formation

BGE 150 I 17 of 22 February 2024
Safeguarding free opinion formation in initiative procedures
The most recent judgment underlines the importance of the free political opinion-formation process, in which political parties play a significant role.

«Under the given circumstances, the cantonal parliament would have been obliged to present its proposal for amending the cantonal constitution as a formal counter-proposal to the cantonal popular initiative submitted on the same subject, so that the electorate could vote on both simultaneously.»

The judgment emphasises the protection of free opinion formation by the electorate, which includes the participation of political parties.

#IV. Neutrality Requirement and Equal Opportunities

From the established case law on state interventions in the political process, important principles emerge for the relationship between the state and political parties:

• Neutrality requirement: The state must remain neutral towards different political orientations
• Equal opportunities: All parties have a right to equal treatment by state authorities
• Proportionality: State measures must comply with the principle of proportionality

#Significance for Art. 137 FC

The case law shows that Art. 137 FC does not establish justiciable individual rights, but rather enshrines the constitutional recognition of parties as essential actors in democratic opinion and will formation. The provision has primarily a declaratory character and forms the constitutional basis for the statutory regulation of party law as well as for state measures to promote democratic pluralism.