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Upper House Reform in : 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 , it is useful to Bundesrat had too o$en blocked reforms passed note recent amendments to the German Con- by the federal of (Bund- stitution (Basic Law) a#ecting the federal up- estag) for party-political reasons unconnected per house of Parliament (Bundesrat). Despite to the Bundesrat’s role as a legislative house of all the di#erences among the , representation for the states (Länder). the Canadian ,1 and the Bundesrat, there are some points on which a comparison is use- Unsurprisingly, the level of dissatisfac- ful. Moreover, some of the impetus behind the tion with the Bundesrat’s workings as an upper German reforms — a conviction that there had house has tended to be higher among political been too much emphasis on cooperative feder- parties with a majority only in the federal lower alism and too little on healthy competition — is house; dissatisfaction is rather noticeably lower reminiscent of debates about such matters in among opposition parties with a majority in the other in general, and Canada in Bundesrat. However, as both major parties, and particular. all but one of the minor parties,3 have enjoyed the fruits of o%ce and control of the lower house As we shall see, the German constitutional in the recent past, all have had some insight into changes are the result of a process of reform the frustrations attendant upon dealing with a uniting Christian Democrats and Social Demo- noncooperative second chamber, and all have crats — the two principal political parties of the their own tales to tell of their reforms being le$ 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 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 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 ). per house which frequently contains a major- &e delegation from a 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 , 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$ers of 1948-49.13 In fact, the A study of all cases in which the presump- Bundesrat has turned into a full-*edged sec- tion was displaced between 1981-99 indicates ond chamber with substantial powers,14 even that two provisions account for this high (gure. though it is not directly elected. &is growth in 58 percent of all cases in which the Bundesrat power has been aided by the Federal Constitu- had an absolute veto are attributable to article tional Court’s holding that a single line in a bill 84(1) of the Basic Law, and 28.5 percent to arti- requiring the Bundesrat’s consent makes the 10 cle 105(3). Until the 2006 reforms, article 84(1) entire bill subject to its consent,15 a rule that has required the Bundesrat’s consent for laws pre- not been a#ected by the 2006 reforms. scribing administrative procedures at the state level, or regulating the organization of state In the lead up to the reforms of 2006, dis- civil services; article 105(3) required (and still satisfaction with the system’s design grew for requires) that the Bundesrat consent to tax leg- a variety of reasons. First, there was a general islation which in whole or in part provides for move away from the idea of cooperative feder- revenues to be distributed to state or local au- alism as a means of structuring and operating thorities. the federal state. Indeed this federalism ethos underlay the Bundesrat’s consent requirement Under the Basic Law, therefore, a major- regarding federal legislation.16 In Germany this ity of state governments have veto power over was connected to the growth in the number of about half of all federal legislation (if they jurisdictions a$er Reuni(cation and to greater choose to exercise it). &e background to this diversity among states,17 but it was also part of arrangement, as the previous paragraph has al- a wider international trend. While the German ready implied, is that the states are frequently Basic Law assumes a signi(cant level of coop- required to implement federal legislation. &e eration between the two levels of government, Basic Law provides for a highly integrated form there has been a growing appreciation of the of federalism under which legislative power on perils of too much cooperation. In the German most matters rests with the federation, while context, cooperative federalism has been linked states are o$en charged with the responsibility to slower decision making, a loss of transpar- 11 of carrying out that same federal legislation. ency in the decision-making process, and to an Vertical cooperation under federal leadership increase of behind-the-scenes deals, making it is by no means an entirely unfamiliar arrange- di%cult for people to know who is responsible ment to practitioners of federalism in North for what decision. Furthermore, if uniform so- America and elsewhere, but the explicit nature lutions are reached, the very rationale of feder- of the Basic Law’s decision for this form of inte- alism is called into question; this means that gration, and the extent to which it is practised

Constitutional Forum constitutionnel !) experimentation at the state level, and a healthy which the Bundesrat was created), and when it degree of competition among the states, is im- has been used merely as a continuation of fed- possible. eral politics by other means. But the latter situ- ation has clearly occurred from time to time. Second, the direct involvement of state gov- Conversely, situations have occurred in which ernments in so much federal legislation has the opposition has let through government bills tended to further obscure the importance of for one reason or another. &is blurs dividing state issues in state , and has turned lines between the parties, and associates the op- state elections into de facto elections for the fed- position with proposals it would prefer not to be eral upper house. Furthermore, the Bundesrat, associated with.23 in its present form, provides great advantages for state premiers and executives over state leg- Many will take the view, however, that a pol- islatures, which in Germany have increasingly ity is better o# with an e#ective second chamber, ceased to be real centres of power in their own and if the Bundesrat was not meant to be e#ec- right. &e states, for their part, have even been tive, then the founders’ intentions should not ob- complicit in this process from time to time, pre- served. &e , for example, has ferring signi(cant in*uence at the federal level largely failed as a means of protecting state in- to substantial powers of their own.18 terests, but it might be applauded as a successful generalist second chamber. &e di%culty with &e third set of reservations about the making this argument in Germany is that the Bundesrat’s role is that it has, on occasion, been Bundesrat’s democratic legitimacy is mediate, as used not for the purpose of protecting state inter- it is derived through the state governments. ests, but for federal party-political purposes. If a majority of states represented in the Bundesrat Now, it would be quite incorrect to assume are from the party in opposition at the federal that in disputes over legislation, the Bundesrat level,19 quite clearly such a temptation will exist. has always been wrong, and the government For long stretches of time, one of the two major always right. Doubtless, the Bundesrat’s sugges- German parties has been in federal o%ce while tions regarding (or obstruction of) legislation the other has controlled a clear majority in the have been bene(cial to the polity on occasion.24 Bundesrat.20 Some electors even vote at the state What occasions these are, however, is largely a level for the party that is out of o%ce federally nonlegal question on which there is not likely to or vice versa, further accentuating the di#erenc- be general agreement. Equally implausible is the es between the two federal houses.21 Indeed, it suggestion that the Bundesrat has always been a might be argued that such electors are using the detriment to the federation. Bundesrat as a traditional upper house, designed to check the lower, rather than as a speci(cally While the number of bills ultimately blocked federal institution. by the Bundesrat has never been very high, those that are blocked tend to be important, and not Unsurprisingly, an empirical study con(rms just minor (ne-tuning exercises or noncontro- that when the government does not have a ma- versial improvements that would be carried out jority in the Bundesrat, more bills are blocked no matter who was in o%ce. While there are no there; conversely, there have been governments (gures for the number of bills the government with a friendly Bundesrat majority that never does not introduce because they would be sure once su#ered that indignity.22 &e Bundesrat’s not to pass, this too has occurred.25 &e block- veto may render an elected government unable ing of the major tax reform initiative of Dr. to keep its promises, or alternatively, Kohl’s conservative government during 1996-97 the government may use the Bundesrat as a by the opposition majority in the Bundesrat is good excuse for not keeping its promises when sometimes plausibly cited as an example of the they become inconvenient. It is not for a mere misuse of that body for the purpose of federal lawyer to say when, in blocking bills, an oppo- party politics.26 Various Social Democrat gov- sition majority in the Bundesrat has been used ernments have also, on occasion, had grounds responsibly (in accordance with the purpose for to believe that they were the victim of federal

!+ Volume 17, Number 1, 2008 opposition party politics, rather than divergent creased its numbers in the Bundesrat — had a states interests in the Bundesrat.27 It would, of su%cient (two-thirds) majority in both Houses course, be very surprising if this were otherwise. of Parliament to amend the Basic Law. An agree- State premiers will always be able to (nd some ment between the two parties on constitutional disadvantage for their local polities in a federal reforms was thus no mere idle exercise.31 Inter- proposal, which premiers are likely to oppose for nal disagreement regarding the Comission’s late- reasons other than those connected with strictly 2004 conclusions was patched up, and a slightly state interests (if there even is such a thing as revised package was presented to both the Bund- a strictly state interest). &ey will, needless to estag and Bundesrat. &is package was approved say, be subjected to pressure from their federal in 2006. &e amendments to the Bundesrat’s colleagues. And the German Länder tend to be powers were at the centre of this wide-ranging rather uniform on the broad level (some states, reform package.32 above all , certainly do stand out, but there is no ), which means that in most situations the main fault lines of policy debate !e Reforms will divide political parties rather than pit fed- 28 Given that article 84(1) of the Basic Law had eral against state governments. (rst place in the league table of constitutional For all these reasons, reducing the number provisions requiring the Bundesrat’s approval of of laws subject to the Bundesrat’s absolute veto bills, attention was concentrated on it during all was one of the principal matters which occu- reform discussions. Reform of German (nancial pied the attention of the Commission, in session arrangements, including the distribution of taxes until the end of 2004. KoMbO’s co-chairs came for which article 105(3) required the Bundesrat’s from the two major parties: Franz Müntefering, consent, was to be the next major (eld examined from the federal Social Democrats, and the then by the Commission (that provision was le$ to Premier of Bavaria, Dr. Edmund Stoiber, from one side for the time being). In short, the solu- the Christian Democrats.29 KoMbO concluded tion adopted was a simple one: the requirement without agreement at the end of 2004, but the in article 84(1) for Bundesrat consent to bills af- lack of agreement did not extend to the propos- fecting the state civil service or administrative als relating to the Bundesrat. A general federal procedures was abolished, and in its place states election occurred on 18 September 2005 a$er received the right to enact their own legislation a disastrous showing for the governing Social deviating from any enacted federal law. &us a Democrats in state elections in the most popu- requirement for collective assent was replaced lous state, North Rhine/Westphalia.30 &e fed- with the right of each state to dissent — a so- eral election resulted in neither of the two large lution which, it was hoped, would increase the opportunities for federal diversity and competi- parties being able to form a coalition capable of 33 achieving a majority. As a result, the two large tion. In e#ect, states lost in*uence at the fed- parties chose to coalesce and, as mentioned in eral level with the abolition of some Bundesrat the introduction, formed a grand coalition of consent requirements, but gained power over Social Democrats and Christian Democrats, their own a#airs. still in o%ce at the time of writing (the unlikeli- Nevertheless, if independently enacted state hood of such a coalition in Canada underlines laws contradict federal laws, federal the greater emphasis placed on cooperation over may restore uniformity, thus overruling state adversarial competition in Germany). deviations from federal norms. To allow time &e alliance between the two major par- for states to react, federal laws restoring unifor- ties gave KoMbO’s conclusions new impetus: mity among states cannot come into force for six (rst, the two major parties had largely been re- months (without Bundesrat approval). If there sponsible for the political input provided to the is competition between federal and state law co-chairs of KoMbO; and second, the grand enacted under this procedure, the law enacted coalition — a$er state elections in early 2006 in- later, be it federal or state, prevails.

Constitutional Forum constitutionnel !, &e capacity of states to legislate in deroga- nations for most of the instances concerned. For tion of federal laws is hedged in with a num- example, when uniform federal administrative ber of subsidiary rules, which may well a#ect rules were promulgated in an exceptional case, the success of this innovation in reducing the thus requiring the Bundesrat’s consent, the rules number of bills that have to pass through the subsequently enacted were generally required Bundesrat. &e most notable of these is the by a (EU) directive or other provision in the new article 84(1) itself, which binding international rule of some sort.39 While states that federal laws passed with Bundesrat this reduction in the number of bills requiring consent may “in exceptional cases” — those in Bundesrat consent falls short of the wilder hopes which there is “a special need for a rule that is entertained for the reforms,40 the (gures indi- uniform across the federation” — regulate state cate some pleasing progress a$er just one year. administrative procedures (although not the &ere are grounds for expecting that the (gure structure of the state civil service),34 thus over- may decline further as people both get used to riding the states’ right to enact inconsistent leg- the reforms, and the grand coalition ends (ter- islation. Although the matter has not yet been minating the federal government’s certain ma- tested in the courts, the general view of German jority in the Bundesrat). When this happens, the scholars is that the restrictions just quoted (“ex- question of whether to put a bill requir- ceptional cases”; “special need”) are primarily ing Bundesrat approval will again become a real appeals to the self-restraint of the , issue for the federal government.41 and are either nonjusticiable or too vague to be subject to anything more thoroughgoing than However, it would be foolish to declare the a basic check by a court as to whether there is battle won or to make any (rm predictions in su%cient evidence to justify the (nding that the frequently changing world of politics. &e the case is exceptional and the need special.35 high (gure under the old version of article 84(1) &e explanatory notes on the bill which became was reached even though there was an easy way the act amending the Basic Law state that the for the federal government to avoid having its federation and the states agree that procedural major bills subjected to Bundesrat consent un- 42 rules in environmental law were to be regarded der the old arrangements: it could divide its as exceptional cases.36 &at they did not bother legislation into separate bills, one with the pro- to record this agreement in the Basic Law itself visions not requiring the second chamber’s con- suggests that they too see the issue as primarily sent, and the other containing the provisions on one for political resolution. the structure of the civil service and adminis- trative procedures. For that matter, the federal It will certainly be interesting to see wheth- government might simply increase the fre- er the federal Parliament is able to muster the quency of bills not including provisions about necessary degree of self-restraint assumed by administrative matters and the civil service in this provision. Current indications provide the states.43 &e separation of proposed legisla- some ground for hope: a recent study reported tion into di#erent bills to get around Bundesrat that in the (rst months of the grand coalition consent requirements has been done in contro- — from its taking o%ce to the coming into versial cases,44 but the lure of administrative force of the amendments — 56.8 percent of all uniformity is clearly too great for a substantial laws required the Bundesrat’s consent. &is is degree of progress to be made by either means within the usual pre-2006 rate, and with the suggested. &e Bundesrat, for its part, was hard- unusual circumstance of coalition government ly likely to object to the resulting increase in its and consequently weak opposition, this (gure powers.45 With this convergence of interests, is no cause for surprise.37 However, in the year only time will tell how well the reforms have a$er the reforms came into force the number succeeded in their principal aim. A$er all, suc- of laws requiring the consent of the Bundesrat cess is, in some part, dependent upon changes dropped (a journalist would hardly be able to in legislative and bureaucratic cultures and suc- resist “plummeted”) to 42.7 percent,38 a reduc- cess in working against centripetal forces. tion of about one-third. &ere are good expla-

-. Volume 17, Number 1, 2008 It is also worth noting that the reforms helpful, the impression sometimes arises that of 2006 added to the potential for Bundesrat some German lawyers consider the accepted blockades in that two further requirements for systematic structure to cover all logically pos- its consent were added in two policy areas. &e sible states of a#airs — as if handed down by a less surprising of these two was article 104a(4), divine source — with the result being that any- under which Bundesrat approval is required thing which does not (t into the existing system of federal laws requiring the states to provide must therefore be wrong. &is is a remarkably money, “money’s worth,” “or comparable ser- limited viewpoint, but unfortunately not en- vices” to third parties of any sort. Recalling that tirely surprising in a country in which system- the Bundesrat is a body composed of state gov- atic legal structures sometimes appear to be the ernment delegations, it is easy to see why this master rather than the servant of legal analysis. rule was adopted. Nevertheless, it may mean As a German political scientist involved in the that more laws require Bundesrat consent, and KoMbO process sensibly points out,48 if the Ba- this possibility illustrates the limitations of the sic Law provides for the later law to prevail even project of reducing entanglements between fed- if it is a state law, then academic constitutional eral and state governments. Futhermore, the lawyers’ systematics will just have to adapt to concepts of money’s worth and comparable ser- this new fact. vices are vague and clearly need (lling out. More surprising, but no more convincing, Less far-reaching in quantitative terms, but is opposition to the idea of independent state perhaps more surprising, is the requirement laws on the part of some practising lawyers — in article 73(2) that laws under the new federal including the Constitutional Law Committee exclusive power over defence against interna- of the German Lawyers’ Association — on the tional terrorism — a power expressly restricted grounds that it requires lawyers to look beyond to cases extending beyond one state’s borders or federal legislation to determine what the state beyond state jurisdiction — receive Bundesrat of the law is!49 No doubt such a requirement will consent. An upper chamber veto in this politi- be a terrible inconvenience to busy solicitors, cally sensitive (eld — within exclusive federal but (should this essay reach them) they will be power — suggests that the Bundesrat is still be- pleased to learn that there is at least a term of ing conceived as the general second chamber it constitutional law already available to describe is not supposed to be, rather than as the states’ legal systems in which research extending be- organ at the federal level. &is rule is surely ex- yond one level of government may be required. plicable only as the product of politicians who It is “federalism.” &e lawyers’ criticism, how- do not trust each other, and therefore want a ever, while surprising both in its content and veto over what other politicians are doing.46 for the lack of guile with which the complaint about the horrifying possibility of meaningful state legislation is made, is another reason to Commentary and Assessment wonder how much commitment there really is Needless to say, the innovation under which to a substantial measure of federalism in Ger- states may enact legislation inconsistent with many involving not merely administration by federal legislation has not gone unnoticed by the states, but also independent legislation with commentators of all descriptions. As a lawyer, the concomitant possibility of interstate compe- my attention naturally turns in the (rst instance tition. It should also be noted that states will, to legal questions and commentary. One or two of course, remain bound by European law and German legal commentators have declared the their own (and federal) , which should also ensure that there is no wild varia- very possibility of state legislation which is in- 50 consistent with federal norms undesirable, be- tion among them. cause it is inconsistent with their usual system- More serious, although certainly not insu- atics (under which federal law always prevails 47 perable, are the various interpretative di%cul- over inconsistent state law). Although I (nd the ties that may arise under the new arrangements German gi$ for systematic legal thought very

Constitutional Forum constitutionnel -/ by which later laws trump earlier laws, regard- On the political level, it is easy to imagine less of which level of government enacted them. the possibility of absurdity resulting from a rule It is easy to imagine some di%culty in deter- that the later federal or state law prevails in a mining which is the later law,51 not only if a fed- case of con*ict between the two;55 indeed, the eral and a state law are coincidentally assented possibility of endless backwards-and-forwards to on the same day but also if, for example, a trumping of one level of government’s laws by federal law — in force in some states but super- the other has led to this solution receiving the seded by state legislation in others — is amend- derogatory name “ping pong” law making. Nev- ed in a minor particular. Would this make the ertheless, too much could be made of the possi- whole law count as a later law, and thus bring bility of endless “ping pong.” Certainly we can- it back into force in those other states in which not design constitutions on the assumption that a deviating law was previously in force? Could those who operate them will engage in wilfully the federation expressly rule out this result by stupid and counterproductive behaviour for an enacting that it has no such intention? What if a inde(nite time.56 I suspect that this solution will federal law is re-enacted as a whole simply as an work better than its detractors think it will; it exercise in consolidation, without any material is, in any event, certainly worth trying.57 amendments? In order to deviate from federal law, is it su%cient for the states to enact incon- Moving from legal detail to broader ques- sistent laws or must they, where the provisions tions of institutional design, it is apparent that themselves are silent,52 also state an express in- the U.K., despite moving in the federal direc- tention to deviate from the federal law, perhaps tion over the past decade, is clearly not going even naming the federal law from which they to copy the Bundesrat as it proceeds on its own wish to deviate? No doubt such cases will be search for a reformed or wholly new second 58 dealt with, if they arise, by curial decision. chamber. &e Bundesrat is also unlikely to be- come a model for Canada, given that the elec- One further issue for which there is a sur- tion of senators is the reform currently being prising lack of legal rule, not to mention con- experimented with there. &e diversity among sensus among commentators, is the status of the Canadian provinces would, moreover, make the states’ capacity to deviate from federal law in it highly inadvisable to further reduce the fed- those cases in which a federal law was enacted eral government’s freedom of action by requir- with the consent of the Bundesrat, pursuant to ing provincial consent to its legislation, not some rule other than the “exceptional circum- only in the , which can be stances” rule in article 84(1). If a constitutional fractious enough, but also in a Bundesrat-like rule, aside from article 84(1), requires Bundes- upper house.59 Indeed, it has now been some rat consent to proposed federal legislation, but years since any serious proposals have been that legislation does not expressly exclude the put forward for the adoption of a Bundesrat in possibility of deviating state legislation, is such Canada,60 and German experience over the last state legislation still permissible? In one com- decade or so, combined with a resurgence in mentator’s view the answer is no, as the states the idea of competitive rather than cooperative have had their chance to participate in the legis- federalism, suggests that the moment for such lative process via the Bundesrat itself.53 &e bet- proposals has passed. &e Bundesrat is also a far ter view, however, is the contrary one — more less obvious model for Canada because Cana- faithful to constitutional text — which avoids dian federalism is nowhere near as integrated treating the states as an undi#erentiated lump as Germany’s — while there are areas in which (a state which voted against the law in question comparable arrangements do exist in Canada, in the Bundesrat may feel somewhat aggrieved there is far less of the German type of entangle- if its right to enact deviating legislation were ment involving entrenched local administration lost as well) yet also preserves state autonomy in of federal laws.61 general (in line with what is supposed to be the highly exceptional status of federally imposed Nevertheless, the German experience does uniformity).54 provide some lessons for other countries. &e

-! Volume 17, Number 1, 2008 principal lesson is that a second chamber domi- tum which asserts the super*uity of a second nated by the opposition can degenerate into a chamber that merely agrees with the (rst. In the worse than useless tool of party politics, and U.K., where the electoral method for the House can be the source of obstruction and block- of Commons, and the nature of the country in ade. A second chamber must not be an alter- which it operates, combine to produce grossly native centre of power to the (rst, in the sense exaggerated majorities — an outcome for which that it simply blocks everything (or everything there is certainly something to be said in a house controversial) that the (rst chamber does. &is that chooses the government — it is, neverthe- situation has arisen in Germany because the less, possible to create a second chamber which method by which the Bundesrat is chosen o$en is a real variant of the (rst chamber, and which produces a majority for one or other of the ma- is neither dominated by the opposition nor by jor parties (major parties are most likely to form the government: namely, a chamber elected by and/or dominate state governments).62 German proportional representation. experience shows that the British government, in its latest white paper, is right to emphasize An anomalous period in has just the importance of ensuring that, except in very concluded in which the federal government exceptional situations, no one party should ever had a majority in the Senate. Experience with have a majority in a reformed second cham- nongovernmental majorities in the Australian ber.63 Senate from 1981-2005 suggests that a Senate in which the government needs the support either However, the recent reforms of the Bundes- of the opposition or of minor parties and inde- rat must not lead us to conclude that a second pendents in order to have its legislation passed chamber should always have signi(cantly lesser can work rather well. &e workings of Parlia- legislative powers than the (rst — I come in a ment are enhanced by the variety of opinions moment to its role in “con(dence” questions af- taken into account, and by the increase in the fecting the composition of the executive (sup- level of transparency in political decision mak- ply, for example). &e reduction in the legisla- ing. In Canada, on the other hand, some con- tive powers of the second chamber undertaken siderable diversity of views already exists in the in Germany in 2006, and in the U.K. in 1911, House of Commons, so the need for a second is clearly connected to limiting each chamber’s chamber serving many of those purposes is role, due to a lack of direct democratic legiti- perhaps less, and the danger of super*uity — or macy. &us, this development is not necessarily worse, complete deadlock between the lower and applicable to an upper house which has been re- upper houses — is correspondingly greater. formed to enhance its democratic legitimacy. While the method of election to an upper &e alternative and obviously much more house is clearly an important topic in countries radical response to the fact that the Bundesrat which have adopted, or are considering, the in- has been exercising powers beyond those for troduction of an elected upper house, the formal which it is suited by its composition and pur- legal powers of the upper house are a topic of pose would have been to make the Bundesrat equal importance, since an elected upper house elected (preferably by some system which did may feel inclined to use its powers to the full- not involve the likelihood of majorities solely est. Australian experience in 1975 provides a re- for the main opposition party), thus making its minder that a too-powerful upper house can in- veto power more legitimate. As noted earlier, deed be mischievous — towards the end of that however, it is not easy to think how that could year, the Senate was again dominated by one be done in a productive way in Germany, given party, this time the opposition, and it refused to that the (rst chamber is already elected by pro- allow the government to pass its budget, lead- portional representation. ing to the Crown’s intervention (in the view of many, including this author, far too early) to While permanent opposition majorities in break the deadlock by forcing a general election. a powerful second chamber are not to be de- In fact, an upper house elected by proportional sired, few will quarrel with the well-known dic-

Constitutional Forum constitutionnel -- representation may even come to imagine that ing rivalry with the Commons in its central task it has a mandate superior to the House of Com- of electing the government. mons’ given that its method of election would allow for a broader range of opinions to be rep- resented. Notes * Faculty of Law, Monash University, Victoria, To my mind this would confuse two sepa- Australia. rate roles: while there may be many good rea- &e author wishes to thank Herr Dr. Horst Risse, sons for requiring that legislation receive the who provided a useful reference to published endorsement of two legislative bodies com- materials during research for this article, and posed in di#erent ways, only one chamber can an anonymous referee. Needless to say, Herr Dr. exist to elect the government. In many systems Risse and the referee have no responsibility for of responsible government, the proper chamber the contents of this article. can be easily identi(ed because it is the one pro- 1 It would be presumptuous of me to attempt to vided with an electoral system that exaggerates summarize the Canadian debate here. Instead, I majorities, and thus makes the task of electing refer to a useful recent article which summarizes the government easier. In Canada, however, the position to date and provides a review of a this is far less o$en the case because the House proposal to reform the Canadian Senate with of Commons has not recently had a clear ma- some similarity to the structure of the Bundesrat: Daniel Pellerin, “Between Despair and Denial: jority for one or other party, given the highly What to Do about the Canadian Senate” (2005) fractious party landscape there. &is makes it 11 Review of Constitutional Studies 1. crucial that there should be no confusion about 2 Indeed, the very name of the Commission was which chamber is the one that chooses the gov- part of a commitment to encourage consensus. ernment. It would hardly be desirable to have See Hans-Günter Hennecke, “KoMbO 2004 – ein two highly fragmented chambers, and a dispute Werkstattbericht zur Föderalismusreform” between them for supremacy to boot. (2004) Niedersächsische Verwaltungsblätter 250 at 253. But it is possible to put the question of insti- 3 &e exception is the party that is now pleased tutional supremacy beyond the reach of subtle to call itself “the Le$,” which includes the argument. &e upper house could simply be de- successors of the old East German communists prived of all power over supply bills — beyond, and some le$-wing breakaways from the Social perhaps, a short suspensive veto so that the Democrats, who are largely from the west. anomalous phenomenon of legislation enacted 4 For general descriptions of the Bundesrat in Eng- by only one of two chambers is reserved for lish, see, e.g., David P. Currie, !e of situations in which there is no alternative. &is the Federal Republic of Germany (Chicago: Uni- versity of Chicago Press, 1994) at 61-66; &omas would not be di%cult to do in the U.K., given O. Hueglin & Alan Fenna, Comparative Federal- that this is the current constitutional position ism: A Systematic Enquiry (Toronto: Broadview of the House of Lords (in written constitutional Press, 2006) at 198; Werner J. Patzelt, “&e Very law anyway). In Canada, a suspensive veto on Federal House: &e German Bundesrat” in supply bills was proposed in the Charlottetown Samuel Patterson & Antony Mughan, eds., Sen- Accord,64 and already exists in relation to some ates: in the Contemporary World constitutional amendments in section 47 of the (Columbus: Ohio State University Press, 1999), Constitution Act, 1982. &is rule could easily be chapter 3; David E. Smith, !e Canadian Senate extended to supply bills. Some upper houses in in Bicameral Perspective (Toronto: University of the Australian state provide exam- Toronto Press, 2003) at 42-46. ples of such restrictions imposed upon elected 5 See Bruce Hicks, “Can a Middle Ground be second chambers.65 &us, it is possible to learn Found on Senate Numbers?” (2007) 16 Constitu- tional Forum 21 at 32. from German (and Australian) experience in 6 Article 51 (3); BVerfGE 106, 310. designing an elected second chamber that is a 7 Proposals *oated as part of the recent reform real centre of power, in greatly enhancing the process to change the rule requiring an absolute representativeness of Parliament, and in avoid- majority did not meet with the states’ approval.

-0 Volume 17, Number 1, 2008 See Irene Kesper, “Reform des Föderalismus in Bundesrat’s having a power to consent against der Bundesrepublik Deutschland” (2006) 6 Nie- the regulation of state administrative procedures dersächsische Verwaltungsblätter 145 at 147. A by the federation, and the choice of an unelected variety of other suggestions are reviewed by Ger- body as the upper chamber. In fact, it is probably rit Mulert, “Der Bundesrat im Lichte des Föder- the case that the development of the Bundesrat alismus” (2007) Die ö#entliche Verwaltung 25 at into a party-political body, and the possibility of 26-29. He rejects some, and I suspect that others mixed laws (some parts requiring Bundesrat con- he endorses — such as providing the Bundesrat sent, others not) was not foreseen by most of the with an independent presiding o%cer — would dra$ers. See Katrin Haghgu, Die Zustimmung not change matters greatly. des Bundesrates nach Artikel 84 I GG : wider die 8 David P. Currie, supra note 4 at 62. sogenannte Einheitsthese (: Duncker & 9 Konrad Reuter, Praxishandbuch Bundesrat, 2nd Humblot, 2007) at 99-102 and 149f. ed. (Heidelberg: C.F. Müller, 2007) at 705. 14 Peter Huber, “Reform der Kompetenzen (Ge- 10 No other provision requiring the consent of the setzgebungskompetenzen, Organe, Bundesrat)” Bundesrat in a particular situation made it into in Sti$ung Gesellscha$ für Rechtspolitik, ed., double percentage (gures. Christian Dästner, Bitburger Gespräche 2005/I (Munich: C.H. Beck, “Zur Entwicklung der Zustimmungsbedür$- 2006) at 30. igkeit von Bundesgesetzen seit 1949” (2001) 32 15 BVerfGE 8, 274, 294f and successor cases. Zeitschri$ für Parlamentsfragen 290 at 296. 16 Winfried Kluth, “Die deutsche Föderalismus- &ere is a comparable (gure in Karl Rauber, reform 2006 : Beweggründe – Zielsetzungen – “Artikel 84 und das Ringen um die Verwaltung- Veränderungen” in Winfried Kluth, ed., Föderal- shoheit der Länder” in Rainer Holtschneider & ismusreformgesetz (Baden-Baden: Nomos, 2007) Walter Schön, eds., Die Reform des Bundessta- at 50. &e social and political background of the ates : Beiträge zur Arbeit der Kommission zur development of federalism in Germany and the Modernisierung der bundesstaatlichen Ordnung causes of its excessive centralism are well sum- 2003-2004 und bis zum Abschluß des Gesetzge- marized by Fritz W. Scharpf, “Recht und Politik bungsverfahrens 2006 (Baden-Baden: Nomos, in der Reform des deutschen Föderalismus” in 2006) at 40. Becker/Zimmerling, eds., Politik und Recht (Wi- 11 Hueglin & Fenna, supra note 4 at pp. 146f, 151, esbaden: Verlag für Sozialwissenscha$en, 2006) 163; Hans-Peter Schneider, “&e Federal Republic at 306-310. of Germany” in Akhtar Majeed et al., eds., Distri- 17 Hartmut Bauer, “Entwicklungstendenzen und bution of Powers and Responsibilities in Federal Perspektiven des Föderalismus in der Bundes- Countries (Montreal: McGill-Queen’s University republik Deutschland” (2002) Die ö#entliche Press, 2006) at 124 and 134. Verwaltung 837 at 841. 12 &ere is an excellent comparison of Canada and 18 Otto Depenheuer, “Verfassungsgerichtliche Germany in Martin Painter, “Intergovernmental Föderalismusreform” (2005) Zeitschri$ für Relations in Canada: An Institutional Analysis” Gesetzgebung at 83; Marcus Höreth, “Zur (1991) 24 Canadian Journal of Political Science Zustimmungsbedür$igkeit von Bundesgesetzen : 269. eine kritische Bilanz nach einem Jahr Föder- 13 Currie, supra note 4 at 62; Hueglin & Fenna, alismusreform I” (2007) Zeitschri$ für Parla- supra note 4 at 199; Ferdinand Kirchhof, “Die mentsfragen 712 at 714-17; Huber, supra note Beein*ussung der Organisationsautonomie der 14 at 36; Günter Krings, “Die Beratungen der Länder durch Gesetze des Bundes : zur neuen Föderalismuskommission” in Winifried Kluth, Kompetenz des Bundes nach Artikeln 84 I und ed., Föderalismusreformgesetz (Baden-Baden, 104a IV GG über die Einrichtung der Behörden Nomos, 2007) at 62; Patzelt, supra note 4 at und das Verfahren der Länder” in Rainer Pits- 67; Hans-Werner Rengeling, “Föderalismusre- chas & Arnd Uhle, eds., Wege gelebter Verfassung form und Gesetzgebungskompetenzen” (2006) in Recht und Politik : Festschri" für Rupert Scholz Deutsche Verwaltungsblätter at 1537; Scharpf, zum 70. Geburtstag (Berlin: Duncker & Humblot, supra note 16 at 311; Christian Schimansky & 2007) at 637; Rauber, supra note 10 at 39; Sch- Bernhard Losch, “Warum die Föderalismusre- neider, supra note 11 at 145. &e numerous asser- form keinen Erfolg haben wird” (2007) Recht tions, such as those just quoted, generally tend to und Politik at 18 and 18f; Schneider, supra note be unsupported by historical evidence. But such 11 at 128, 140 and 144f. assertions are plausible for a number of reasons 19 &e situation is o$en more di%cult to assess than such as the general presumption against the the text implies, given that sometimes state coali-

Constitutional Forum constitutionnel -" tion governments may include one party that Patzelt nevertheless puts forward the view (at is in o%ce federally, and one that is in opposi- 87) that there have as yet been no extreme cases tion federally. In such circumstances, the state of blockading. What counts as an extreme case coalition must attempt to agree on the manner is also a matter of degree and personal opinion, in which its votes will be cast in the Bundesrat. of course. Certainly it is right to say that there On what may happen when this is not possible, have never been attempts wholly to paralyse see Nina Arndt & Rainer Nickel, “Federalism Re- the federal government’s workings through the visited: Constitutional Court Strikes Down New Bundesrat, or to make it impossible for a federal Immigration Act for Formal Reasons” (2003) 4 government to continue in o%ce. German Law Journal 71. 24 Hans-Peter Bull, “Föderalismusreform auf 20 Given frequent changes and coalition govern- falscher Fährte” (2007) Recht und Politik at 67 ments at the state level, the question whether the and 69. government has a majority in the Bundesrat is 25 Haghgu, supra note 13 at 114f; Helms, supra note harder to determine than one might think. More 20 at 115 and 132; Strohmeier, supra note 20 at detailed study is needed, but see Gerd Stroh- 717 and 729; Wilfried Swenden, Federalism and meier, “Der Bundesrat : Vertretung der Länder Second Chambers : Regional Representation in oder Instrument der Parteien?” (2004) Zeitschri$ Parliamentary Federations – the Australian Sen- für Parlamentsfragen at 717, who mentions that ate and German Bundesrat Compared (: the Social Democrat/Free Democrat government Peter Lang, 2004) at 86. in power from 1969-82 never had a majority in 26 Röttgen & Behl supra note 23 at 20. the Bundesrat. Ludger Helms, “Föderalismus 27 Helms claims that the Social Democrats have und Bundesstaatlichkeit in Deutschland : eine actually experienced more di%culties than the Analyse aus der Perspektive der vergleichen- Christian Democrats, supra note 20 at 115 and den Politikwissenscha$” (2006) Jahrbuch des 131. Föderalismus at 115 and 130f, states that only 28 Kluth supra note 16 at 51; Patzelt supra note 4 at Australia has had a higher rate of non-govern- 86f. ment domination of the second chamber. As he 29 &e present author is of course aware of the points out, and as we shall see below, there have di#erent name of the Bavarian branch of the also been important di#erences in the nature of principal conservative party. &ere is a summary the non-government majority in Australia. of KoMbO’s work and the background in general 21 Michael Nierhaus & Sonja Rademacher, “Die in English in Rudolf Hrbek, “&e Reform of große Staatsreform als Ausweg aus der Föderal- German Federalism: Part I” (2007) 3 European ismusfalle?” (2006) Landes- und Kommunalver- Constitutional Law Review 225 at 231-35. waltung at 385 and 386. 30 Simon Apel, Christian Körber & Tim Wihl, “&e 22 Strohmeier, supra note 20 at 717 and 723-28. Decision of the German Federal Constitutional 23 Peter Huber, “Deutschland nach der Föderalis- Court of 25th August 2005 – Dissolution of the musreform – in bester Verfassung!” in Pitschas National Parliament” (2005) 6 German Law Jour- & Uhle supra note 13 at 597; Jörn Ipsen, “Die nal at 1243. Kompetenzverteilung zwischen Bund und Län- 31 In the (nal Bundestag vote, the proposal ob- dern nach der Föderalismusreform” (2006) Neue tained 428 votes, eighteen more than the 410 Juristische Wochenschri$ at 2801 and 2803; needed for the two-thirds majority: Bundestag, Krings, supra note 18 at 61f; Patzelt, supra note Debates, 30 June 2006, at 4295-98. In the Bundes- 4 at 85; &ilo Ramm, “Große Koalition, Föder- rat, fourteen of the sixteen states voted yes: alismusreform und Staatsbankrott” (2006) Neue Bundesrat, Debates, 7 July 2006, at 222. Justiz at 337 and 340; Werner Reutter, “Regieren 32 &is is the view of a number of eminent com- nach der Föderalismusreform” (2006) 50 Aus mentators, e.g., Christian Starck, “Einführung” Politik und Zeitgeschichte 12 at 12f; Norbert in Christian Starck, ed., Föderalismusreform Röttgen & Henner Jörg Behl, “Abweichung statt (Munich: C.H. Beck, 2007) at 3. Zustimmung – Die Readjustierung des Ver- 33 Martin Stock, “Konkurrierende Gesetzgebung, hältnisses von Bundestag und Bundesrat durch postmodern: Aufweichung durch ‘Abweic- Änderung des Artikels 84 GG” in Holtschneider hung’?” (2006) 21 Zeitschri$ für Gesetzgebung & Schön supra note 10 at 19; Fritz W. Scharpf, 226 at 232; Trute, “Verwaltungskompetenz und “Föderalismusreform – warum wurde so wenig Art. 33 V,” ibid. at 76f. &ere is a keen awareness erreicht?” (2006) 50 Aus Politik und Zeitge- that competition cannot be practised as enthu- schichte at 6 and 7; Scharpf, supra note 16 at 311. siastically in the public sector as in the private:

-' Volume 17, Number 1, 2008 Bauer, supra note 17 at 844f; Huber, supra note at 147; Kirchhof, supra note 13 at 638. 14 at 37; &omas Mayen, “Neuordnung der 44 I deal with one such case and the Federal Con- Gesetzgebungskompetenzen von Bund und stitutional Court’s endorsement of this proce- Ländern” (2007) Die ö#entliche Verwaltung 51 dure as constitutionally valid in “New Gay and at 56; Helmuth Schulze-Fielitz, “Umweltschutz Lesbian Partnership Law in Germany” (2003) 41 im Föderalismus – Europa, Bund und Länder” Alberta Law Review 573 at 603. (2007) Neue Zeitschri$ für Verwaltungsrecht 249 45 Haghgu, supra note 13 at 85. at 251. 46 &iele, supra note 35 at 715, thinks it is a good 34 &is is expressly stated in the provision and is idea on the grounds that the topic is especially also mentioned by Mayen, ibid. at 53. important. &at could be said about many topics. 35 Kesper, supra note 7 at 147; Alexander &iele, 47 Kesper, supra note 7 at 150; Schulze-Fielitz, supra “Die Neuregelung der Gesetzgebungskompeten- note 33 at 253 (referring to the equivalent provi- zen durch die Föderalismusreform – ein Über- sion in article 72(3)). Huber, supra note 23 at 607, blick” (2006) Juristische Ausbildung 714 at 718; agrees that the sacred system has been violated, Trute, supra note 33 at 85. It may be that Peter but goes on to add that the advantages of doing Selmer, “Die Föderalismusreform – eine Mod- so in this case probably outweigh the disadvan- ernisierung der bundesstaatlichen Ordnung?” tages. (2006) Juristische Schulung 1052 at 1057, is put- In fact, the new provision is slightly di#erent ting forward a broader view of the Court’s role. from the old rule that federal law makes state law 36 Bundestag, printed paper 16/813 at 15. invalid, because under the new provision earlier 37 During the only previous Grand Coalition of laws are not made invalid by later ones but be- 1966-69 the (gure was 51.7 percent; as men- come merely ine#ective. &e concept of ine#ec- tioned earlier the average for 1949-2005 was 53.1 tiveness was borrowed from European jurispru- percent; the range was from 41.8 percent (over dence. &e chief practical e#ect of this di#erence the (rst electoral cycle) or (if that run-in period lies in the fact that under the new provision, if is excluded) from 49.4 percent to 60.0 percent. the latest law were repealed, the second-latest All these (gures are from Reuter, Praxishandbu- would revive, as it was never invalid. ch, supra note 9 at 705. 38 A higher (gure is arrived at by Höreth, supra It should also be noted that article 72(3) contains note 18 at 727, but on the basis of a smaller a further list of topics also introduced in 2006 on sample. which the states are allowed to deviate and with 39 Horst Risse, “Zur Entwicklung der Zustim- the later law prevailing. mungsbedür$igkeit von Bundesgesetzen nach &e solution recently adopted is traced back der Föderalismusreform 2006” (2007) Zeitschri$ to 1849 by Hans-Jörg Dietsche and Sven Hin- für Parlamentsfragen 707 at 709-11. terseh, “Ein sogenanntes Zugri#srecht für 40 Summarised and attacked in Simone Burkhart die Länder – ’konkurrierende’ Gesetzgebung & Philip Manow, “Was bringt die Föderalismus- beim Wort genommen? Zur Entwicklung einer reform? Wahrscheinliche E#ekte der geänderten verfassungsrechtlichen Diskussion” (2005) Jahr- Zustimmungsp*icht” (Cologne: Max-Planck-In- buch des Föderalismus 187 at 193. More recently stitut für Gesellscha$sforschung, 2006). it was suggested as a possible solution in 1976 by 41 Höreth, supra note 18 at 732 thinks that the Scharpf, supra note 16 at 325. (gure will increase a$er the grand coalition 48 Scharpf, ibid. at 328. On the following page of terminates. I am inclined to think, rather, that his contribution he adds, no doubt building on a government with a majority in the Bundesrat his experience in KoMbO, that lawyers are of such as the grand coalition may be more in- limited use in constitutional reform, as they can clined, in cases in which a choice exists, to make only deduce norms from other norms and have use of that majority, while a government without no wider-reaching means of analysis. &is is a such a majority is less likely to introduce bills fair criticism of the less intelligent German legal that need the Bundesrat’s consent. Time will tell. reaction to the proposed reforms, and a fair re- 42 Provided that that provision was the only one *ection on the excesses to which systematization which attracted the requirement of consent in is sometimes carried by lawyers trained in that relation to a bill. country. 43 Dästner, supra note 10 at 307f; Ulrich Häde, “Zur 49 Constitutional Law Committee of the German Föderalismusreform in Deutschland” (2006) Lawyers' Association, “Föderalismusreform: Juristenzeitung 930 at 934; Kesper, supra note 7 Nichts wird einfacher” (2006) Anwaltsblatt 614

Constitutional Forum constitutionnel -) at 615. Others put forward a similar fear, such 2007) 1 at 27. as Mayen, supra note 33 at 53-55; Nierhaus & 64 Peter Hogg, Constitutional Law of Canada, 5th Rademacher, supra note 21 at 389. ed. (Scarborough: &omson Carswell, 2007) at 50 &is is pointed out by a number of writers, e.g., 9-19, provides a brief but very useful discussion Oliver Klein & Karsten Schneider, “Artikel 72 of the issues canvassed here in the Canadian GG n.F. im Komptenzgefüge der Föderalismusre- context. form” (2006) Deutsche Verwaltungsblätter 1549 65 See, for example, section 65 (4),(5) of the Consti- at 1554. tution Act 1975 (Vic.). 51 &e following scenarios are based in part on Constitutional Law Committee of the German Lawyers' Association, supra note 49 at 616. 52 Peter Fischer-Hü$le, “Zur Gesetzgebungs- kompetenz auf dem Gebiet ‚Naturschutz und Landscha$sp*ege nach der Föderalismusreform” (2007) Natur und Recht 78 at 79. 53 Lars Rühlicke, “Bericht aus Berlin – März 2006” (2006) Jura 234 at 236. 54 &iele, supra note 35 at 719. 55 Mayen, supra note 33 at 55. 56 Schulze-Fielitz, supra note 33 at 255, points out that other provisions of the Basic Law designed for cases of wilful silliness or non-cooperation have remain unused because no one has brought about a situation in which their use has been necessary. Also optimistic are Klein & Schneider, supra note 50 at 1553. 57 Kirchhof, supra note 13 at 641. It is also possible that the Courts might feel able, on the unwritten principle of Bundestreue, to strike down federal laws enacted solely for the purpose of driving the states out of a particular (eld. See Trute, supra note 33 at 80. 58 I do not agree that the Bundesrat model is the only “truly federal” or “genuinely federal” one (whatever that means), as is alleged by Hueglin & Fenna, supra note 4 at 199 and 214, even though those same authors accurately conclude that the Bundesrat has facilitated centralization. 59 Painter, supra note 12 at 286. See also Smith, supra note 4 at 44, referring to di#erent styles of politics in the two countries. 60 &ere is a list of such proposals in Jack Stilborn, “Forty Years of Not Reforming the Senate” in Serge Joyal, ed., Protecting Canadian Democracy : !e Senate You Never Knew (Montreal: McGill- Queen’s University Press, 2003) at 32; Ronald Watts, “Bicameralism in Federal Parliamentary Systems” in ibid., at 92. 61 Lowell Murray, “Which Criticisms Are Found- ed?” in ibid. at 141; Watts, ibid. at 93. 62 While broadly correct, this is subject to the quali(cations I made earlier in footnotes 19 and 20. 63 U.K., House of Commons, “&e House of Lords: Reform,” Cmnd 7027 in White Papers (February

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