Upper House Reform in Germany: the Commission for the Modernization of the Federal System
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Upper House Reform in Germany: the Commission for the Modernization of the Federal System Greg Taylor* Introduction mission’s initial concentration on the Bundesrat was the result of the realization on all partisan As the debate on a possible new second leg- sides that the workings of the Bundesrat could islative chamber proceeds both in the United be improved. &e main complaint was that the Kingdom (U.K.) and Canada, it is useful to Bundesrat had too o$en blocked reforms passed note recent amendments to the German Con- by the federal lower house of Parliament (Bund- stitution (Basic Law) a#ecting the federal up- estag) for party-political reasons unconnected per house of Parliament (Bundesrat). Despite to the Bundesrat’s role as a legislative house of all the di#erences among the House of Lords, representation for the states (Länder). the Canadian Senate,1 and the Bundesrat, there are some points on which a comparison is use- Unsurprisingly, the level of dissatisfac- ful. Moreover, some of the impetus behind the tion with the Bundesrat’s workings as an upper German reforms — a conviction that there had house has tended to be higher among political been too much emphasis on cooperative feder- parties with a majority only in the federal lower alism and too little on healthy competition — is house; dissatisfaction is rather noticeably lower reminiscent of debates about such matters in among opposition parties with a majority in the other federations in general, and Canada in Bundesrat. However, as both major parties, and particular. all but one of the minor parties,3 have enjoyed the fruits of o%ce and control of the lower house As we shall see, the German constitutional in the recent past, all have had some insight into changes are the result of a process of reform the frustrations attendant upon dealing with a uniting Christian Democrats and Social Demo- noncooperative second chamber, and all have crats — the two principal political parties of the their own tales to tell of their reforms being le$ and right — which together form a federal blocked by an obstreperous Bundesrat. &e for- coalition government called in the jargon of mation of the governing grand coalition o#ered German politics the grand coalition (the Cana- a clear opportunity for reform, as it meant that dian equivalent would be a Conservative-Liberal the government had the necessary two-thirds coalition in place of a minority government). As majority in both houses of Parliament to carry part of the reform process, which started before out any constitutional changes advocated by the grand coalition was formed but continued KoMbO. into its time in o%ce, proposals for the reform of the federal political system were considered by a &e constitutional change chosen to ensure specially formed Commission for the Modern- the work of the lower house (and thus of the gov- ization of the Federal System, a body which in ernment) would not be unduly encumbered by German bore the acronym KoMbO.2 &e Com- the upper house was a peculiar German adapta- Constitutional Forum constitutionnel !" tion of the idea of the Bundesrat as a peculiar gitimacy. &is too is a coin with two sides: an German institution. &e principal change al- upper house which is democratically legitimate tered the rule under which the Bundesrat had a may be tempted to be too much of a hindrance full rather than suspensive veto over legislation to e#ective governance and, in extreme cases, a#ecting the jurisdiction of the Länder. Under may even seek to share with the lower house its the new approach, the general rule is that the role in selecting the government, while an up- Länder are not bound by federal legislation, and per house with no democratic legitimacy faces so are free to enact their own independent leg- questions as to why it exists at all. islation. &is being so, the need for Bundesrat consent to federal legislation a#ecting Länder jurisdiction was dispensed with (although, as Background to the 2006 Reforms we shall see, an absolute veto for the Bundesrat It is well known that the Bundesrat is not an remains in some cases). &e aim of this new ap- elected body,4 consisting rather of delegations proach is to ensure both that the upper house is from the German state governments, which are less likely to be an incubus to reform of the fed- themselves of course elected. &is means that eral system, and also to promote a greater de- the Bundesrat’s democratic legitimacy is indi- gree of federal diversity and competition within rect, or mediated through the legitimacy of the Germany. state governments. It should be noted that the While the German model, for reasons to be Bundestag is elected on a system of proportional discussed, is not likely to be directly applicable representation, which provides an adequate op- in Canada or most other federal countries, this portunity for minor parties to be represented. development is interesting in its own right, and In some jurisdictions a principal aim of a sec- the reasoning behind it permits the drawing of ond legislative chamber is to provide for broad- some broader conclusions that are perhaps ap- er representation of popular opinion than is plicable outside Germany. possible in the legislative chamber from which governments are formed; but in Germany, the &e German experience reminds us of the Bundestag already provides for broad represen- delicate balance that must be achieved in the tation of interests. &us, it is quite rational from design of an upper house. &is balance is par- this structural point of view for the German ticularly important when the second chamber second legislative chamber to be not only un- possesses an element of democratic legitimacy elected, but also made up of representatives of (as is the case with the Bundesrat), and so is not another tier of government.5 subject to informal constraints on the exercise of its power. On the one hand, an e#ective up- Each state has a certain number of votes in per house must have substantial powers, and the Bundesrat, and those votes are allocated ac- be able to e#ectively contradict the lower house cording to population (although smaller states from time to time. On the other hand, an up- are overrepresented, as is usual in a federation). per house which frequently contains a major- &e delegation from a state government in the ity for a principal opposition party may well Bundesrat usually consists of state ministers, and o$en includes the state premier him or her- block the government’s plans o$en enough to 6 be a hindrance to its e#ectiveness, rather than self. &e Basic Law requires each state to cast all a useful corrective to possible abuses of power its votes as a bloc, something which can cause (at least in countries like Canada and Germany di%culty when, as happens frequently on the in which responsible government prevails). An Continent, a coalition government is formed upper house must, in short, be di#erent, but from somewhat disparate partisan elements. not too di#erent, from the lower house, and Article 53(3) of the Basic Law states further that complement rather than contradict the lower an absolute majority in the Bundesrat is neces- house’s role in governance. Cutting across these sary for bills to pass. &us, abstention by a state considerations is the extent to which the upper has the same e#ect as a “no” vote, not an unim- house can claim an element of democratic le- portant rule given that state coalition govern- ments may well (nd themselves unable to agree !' Volume 17, Number 1, 2008 upon a common position.7 in German federalism, are certainly surprising by our standards. Extralegal factors such as the &e powers of the Bundesrat are limited. great diversity among some Canadian prov- &e constitutional presumption is that it has inces would, for example, render a comparable only a suspensive veto over federal legislation, degree of interlocking responsibility close to which the Bundestag, as the elected lower house, impossible.12 In the German setting, however, it can override. However, this presumption is dis- is understandable that the states are entitled to placed by various provisions of the Basic Law in a larger direct say in federal legislation than in several situations. Such provisions are “incon- many other federations, especially when legis- 8 veniently scattered throughout the Basic Law.” lation proposes to dictate to them the manner When a provision contradicts the presumption, in which their responsibilities are to be carried the Bundesrat has an absolute veto. As matters out. have turned out, the presumption is more fre- quently displaced than not: from 1949 to 2005, It is generally thought that a much higher the Bundesrat had an absolute veto (whether or percentage of laws have turned out to require not it was actually exercised) over 53.1 percent Bundesrat consent, rather than be subject mere- of all successful bills.9 ly to a suspensive veto, than was intended by the constitutional dra$ers of 1948-49.13 In fact, the A study of all cases in which the presump- Bundesrat has turned into a full-*edged sec- tion was displaced between 1981-99 indicates ond chamber with substantial powers,14 even that two provisions account for this high (gure. though it is not directly elected. &is growth in 58 percent of all cases in which the Bundesrat power has been aided by the Federal Constitu- had an absolute veto are attributable to article tional Court’s holding that a single line in a bill 84(1) of the Basic Law, and 28.5 percent to arti- requiring the Bundesrat’s consent makes the 10 cle 105(3).