BICAMERALISM Factors in the Evolution of Second Chambers in Four Federations

GERARD WLBUR HORGAN

A thesis submitted to the Department of Political Studies in confonnity with the requirements for

the degree of Master of Arts

Queen's University Kingston, Ontario, Canada September, 3000

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Bicameralism is a ubiquitous feature of both unitary States and the central govemments of federations. First chambers are normal 1y consti tuted on principles of rnajon tarian democracy; second chambers are usually constituted on some variant of a non- majoritarian principle. In federal systems, the non-majoritarïan principle is customarily related to the role of the second charnber in representing temtorially-based constituent units in the fedenl legislative institutions. Even arnong federal systems, however. there exists a wide variation in the degree to which non-majoritarianism is reflected in the make-up of, and roles played by, second chambers. Second charnbers fulfill a number of roles in the four federal systems studied: the United States, Canada, Australia. and Germany. Of particular importance are: legislative review; representation of group interests. especially regional groups; and intergovemmental coordination. Both non- territorial and territorial non-majoritarianism were incorporated in the initial design of t hese second chambers. However, differences in the contemporary poli tical circumstances produced variations in the degree to which non-majoritarian roles were institutionalised. Three categories of factors are identified as having been important in the specific design of each of these second chambers. These include: path dependency, historical learning, and external influences. Three institutional factors are identified as having been important in the development of these second chambers. These include: the method of selection of the members of the second chamber, the form of the executive, and the division of powers. Three general categories of social factors are identified to have affected the development of these second chambers. These include structural, demographic, and ideological factors. Al1 four second chambers continue to insert some Ievel of non-territorial non-majoritarianism into their govemmental systems via their legislative review role. The scope of these chambers' ability to continue to act as the institutional instantiation of territorial non-majontarianism is closely related to their method of selection. ACKNOWLEDGEMENTS

As a mature student, one finds that any comprehensive list of those to whom one is intellectually, spintualty, or emotionally indebted would be as long as the thesis itself. Therefore, one must of course attempt to restrict oneself to naming only those who have had a direct impact on the current project; this still leaves a list a few pages long! So, one selects a manageable few, and expresses regrets and general thanks to the many. In this case the few are: Professor Emeritus Ronald L. Watts; Professor Peter M. Leslie; Associate Professor Margaret J. Little; my office-mates, Jane Nicholas, Drew Green, and KelIie Templeton: my mother, B.J. Horgan: and my wife, Marlene, whose love makes anything seem possible. TABLE OF CONTENTS

Introduction ...... 1

The Senate of the United States ...... 25

The Canadian Senate ...... 51

The Australian Senate ...... 81

The Geman Bundesrat ...... Ill

Conclusion ...... 139

Bibliography ...... 156 CHAPTER ONlZ INTRODUCTION rNTRODUCTION

We are living in a period of institutional ferment associated with major shifts in power relationships around the globe- Among the notable features of institutional change is a pronounced devolution or decentralisation within state structures, accompanied by the redesign of the upper houses of bicameral legislatures. Examples abound. The collapse of the Soviet bloc in 1989 left a number of countnes, including Russia itself, searching for the appropriate institutional structure to support their chanpd political circumstances; the design of the second chamber of the

Russian Federation, the Federation Council, remains a rnatter of dispute today. In South

Afnca, the end of apartheid led to a re-design of governrnental institutions in the 1990s. including re-introduction of a second chamber as part of a move to a quasi-federal political system: a National Council of the Provinces was established in 1997. In 1993 Belgium took another step in its constitutional evolution when, having already undergone several phases of evolution within a formally unitary structure, it declared itseIf a federation: as part of this stage of change, the Belgian Senate was modified to make it a more 'federal' institution. In the United Kingdom, under the Blair government, an open- ended program of 'rolling devotution' has been initiated, and in February, 2000, a Royal

Commission recommended that, as part of the ongoing process of reform of the House of

Lords, sorne of the members of the Lords should be directly elected regional representatives.

Events such as these make it important that we understand the range of factors affecting the design and evoiution of second chambers, and thus their rofe in oovernmental systems. Such an understanding can only be gained via comparisons. I However, none of the extant recent literature on second chambers focuses specifically on 1 the factors affecting institutional design and evolution from a comparative perspective. This study will attempt to begin to address this deficiency by investigating the causes of institutional evolution of second charnbers in regard to their role as the institutional expressions of territonal non-majoritarianism in federal systems. CONTEXT Bicarneralism is a ubiquitous feature of both unitary states and the central governments of federations. In both types of system, the second chamber is commonly used to cornplement the first chamber. First chambers are normalty constituted on principles of majoritarian democracy; second chambers are usually constituted on some variant of a non-majoritarian principle. In federal systems. the non-majoritarian principle is customarily related to the role of the second chamber in representing tenitonally-based constituent units in the federal legislative institutions. Even among federal systerns, however, there exists 2 wide variation in the degree to which non-majoritarianism is reflected in the make-up of, and roles played by, second chambers. In federal systems, the majoritarian principle would in essence prescribe that the federation-wide majority should rule. Regional minorities, whether in the form of Iess- populous constituent units, or minority ethnocultural groups, would be subject to the will of the national majority. In federations, this principle is embodied in first chambers, in which the primary unit to be represented is the individuül, and representation is proportional to population. The non-majoritarian principle has at its base the idea that individuals are not interchangeable, that a critical part of individual identity is group membership. This principle therefore prescribes that minonty groups should have some mechanism with which to prevent their interests from king ovemdden by a federation-wide majority. In federations, territorial groups are privi ieged; that is, it is regional i y concentrated minorities whose interests are usually defended via distinctive representation in the second chamber of the central legislature. In some federations it is the interests of less- 2 populous constituent units that are at issue; in others it is the interests of regionally concentrated minority ethnocultural groups; in still others, it is both. Lijphart has used the majoritarian versus non-majoritarian distinction to differentiate two models of democracy: the majoritarian, or Westminster, model; and the non-majoritarian. or consensual, model.' One of the dimensions which distinguishes the two models is bicameralism. The majoritarian model is characterised by either unicameralism or, more comrnonly, a form of attenuated bicameralism which simulates unicameralism. Simply put, in the majontarim model the second charnber is of little or no institutional significance. The non-majoritarian rnodel is characterised by balanced bicarneralism: the second chamber is constituted in a manner which distinguishes it from the first charnber, and has powers which rival those of the first chamber. Such a second chamber has significant representational and legislative effects.

In this study, we will be focusing on federal systems. Therefore, it will be useful for us to differentiate two sub-categories of non-majoritarianisrn, temtorial and non- territorial. Non-territorial non-majoritarianism will refer to the use of the mechanisms of consensual dernocracy to confer on rninorities that are not territorially concentrated a degree of legislative influence greater than that which a strictly majoritarian process would prescribe. Such a minority may be simply the temporary minority created by the electoral process; Le., the supporters of the opposition parties who are excluded from govemment. Temtorial non-rnajontarianism will refer to the use of the rnechanisms of consensual dernocracy to confer a degree of influence greater than that which a strictly majoritarian process would prescribe on minorities that are temtorially concentrated. By definition, any one constituent unit of a federation having more than îwo constituent units, or the population of any one constituent unit in a federation in which no one unit has more than fifty percent of the total federal population, is a temtorially- concentrated minority. In a federal and plural society, such rninonties may be compounded, in that the boundaries of one or more constituent units may also define the 3 territorial boundaries of geographicallyconcentrated minority ethnocultural gmups. In practice, the two categories of temtorially-based minorities which receive the most attention are the less-populous constituent units of a federation, and constituent units whose boundaries coincide with those of a minority ethnocultural group. PURPOSE

The purpose of this thesis is to investigate the causes of institutional evolution of second chambers in the central governments of four federations, in regard to their role as the institutionai expression of tem-torial non-majoritarianism. The centrd idea around which the thesis revolves is that the tension between majoritarianism and non- majoritarianisrn is reflected in the initial design and subsequent evolution of these institutions. Thus, the approach adopted to the analysis of these second chambers is to ask how the concept of territorial non-majoritarianism was originally institutionalised, and how and why this aspect of the second charnbers'role has evolved.

Specifically, the questions to be answered in each case are: what were the factors that led to the initial non-majoritarian design of the second chamber; what factors explain the degree of evolution that has occurred in the design or role of the second chamber as an institutional expression of territorial non-majoritarianism: and do the present roles of the second chamber express a continuing commitment to temtorial non-majoritarianism?

Finally, in a comparative context, the question to be answered is whether or not there are common causal factors which affected the origins and evolution of these institutions. ROLES OF SECOND CHAMBERS Second chambers fuifil1 a number of roles in federal systems. Of particular importance are: legislative review; representation of group interests, especially regional groups: and intergovernmental coordination. These roles are not mutually exclusive. However, because there is such wide variation in the details of the institutional design of federations, the degree to which, and the ways in which, particular second chambers fulfill each of these functions varies widely. 4 Legislative review is a primary function of most second chambers. The purpose is to instil a degree of redundancy in the legislative system- Canada; first Prime Minister,

Sir John A. Macdonald, offered as the rationale for a Canadian Senate that it would provide a venue for 'sober second thought'on legislation passed by the lower house.' In systems with relatively powerful second chambers, the second chamber may be able to force amendments in, or even the dropping of, controversial legislation. Even in systems where the second chamber is relatively weak, the degree of delay offered by review of Iegislation by the second chamber may provide more opportunity for media attention and public debate on issues; in this way political pressure may be brought to bear on the first chamber to reconsider its ~e~islation.~ In unitary states in particular, but also in the older federal systems, the upper chamber has often been a conservative force.' With the expansion of suffrage, upper houses were often constituted on an anti-democratic principle which would allow them to temper the excesses of 'mob mie'. Thus, in the US.. Madison was moved to wnte that a second chamber was required as "such an institution may be sornetimes necessary as a defense to the people against their own temporary errors and de~usions."~ Representation of regional interests in the central government is a second role that upper chambers play in the vast majonty of federations, and, indeed, in many unitary states. Under the umbrella of regional representation, however, a mix of purposes is possible: to protect al1 constituent units from the power of the general government, to protect primarily the interests of the less-populous constituent units, or to inject regional preferences into the processes of the general povernment. It is by constituting the second chamber on non-majontarian principles that these purposes are pursued. The specifics of the second chamber's design, however, will be affected by the relative strength of these purposes, and the differing conceptions of regional representation they reflect. A conception of regional interests as the summation of the interests of regional agglomerations of voters, for example, would be compatible with the 5 injection of regional preferences into the processes of the general govemment via a directly elected second chamber. If the protection of the less-populous constituent units were to be the pnmary purpose of the second chamber, then equal representation of units regardIess of population might be the most important design principle. If, however, the primary purpose were to be to protect al1 constituent units from the power of the general government, then interest might be focused less on equality of representation, and more on the method of selection of the membership of the second chamber: a charnber made up of delegates of constituent-unit governments might be viewed as the proper solution. The mix of purposes and conceptions of regional interests thus affects the way in which a second chamber may be composed. Constituent units may be represented equally, or their representation may be weighted by population; units' representation may be calculated discretely, or, as in Canada, as part of regional groupings. if the federation is constituted by units that are not constitutionally equal, such as States and temtories in

Australia, different types of units may be represented differently. It is also possible to constitute the second chamber via a combination of more than one of these systems.

Si mi lady, purposes and conceptions of regional interests wi Il affect the choice of method of selection of rnembers of the second chamber. Will it be the populace of the constituent units that is directly represented, via direct election of members? Would it be appropriate for the legislative assemblies of the units to be represented, via a selection of the members from among their numbers? Sholild it be neither of these but rather the unit =oovemments that are represented, via appointment of selected members of unit governrnents? Al1 of these possibilities have ken pursued by various countries.

Representation of unit governments warrants further comment, as it raises the possibility of ri further role for a second chamber.

A second chamber which is constituted by unit government representatives may provide a forum for intergovernmental relations. It is now widely recognised among scholars of federalisrn that orders of govemment are becoming increasingly 6 i nterdependent. Although there remain those who espouse ideals of 'dualist federalism' and ivatertight compartments*,practitioners of governance redise that interdependence is here to stay. This interdependence means that the policy choices of one order of govemment will affect the environment in which other orders of government operate.

Thus, it wiIl be beneficial for both orders of government to be, at minimum, aware of planned poiicy changes contemplated by the other order of govemment, and, at maximum, to coordinate their policies. In parliamentary federations, much of the interaction between govemments occurs via what has been terrned 'executive federalism': relations between the executives of the two orders of govemmentS6Executive federalism usually takes place outside the federai institutional structures; federal-provincial First Ministers' conferences in Canada are an example. Intrastate federalism refers to the representation of regional interests ivifii~tthe federal governing structure.' A particular variety of intrastate federalism occun where it is the govenrnierrrs of the constituent units of the federation that are represented in the federal governing structure; as we shall see, the German Bundesrat is the paradigmatic example. Where this mode1 of intrastate federalism is utilised, the role of intergovemmental coordination can be a very important function of a second chamber.

A second chamber can be the site for the representation of interests organised on bases other than temtory. While in a historical sense this type of representation is becoming less comrnon, there are those who believe there are good reasons for reversing this trend.' If a person's primary identification is non-temtorial, perhaps slhe should be allowed to choose to be represented in a way that acknowledges that fact. Representation by vocational group, as in treland, or by language community, as in Belgium, are just two such possi bi 1i ties.' LiTERATURE REVIEW

Surprising though it may be for Canadians accustomed to recurrent debate, scholarly and otherwise, conceming the Canadian Senate, the comparative literature on 7 second chamben is rather Iimited. The most recent comparative study of second charnbers, by Russell, makes this point explicitly." Works by Tsebelis and ~oney"and Patterson and ~ughan,"discussed below, have begun to redress this gap in the literature. The literature on federal systems, rather than bicameralism in general, provides some comparative work on second charnbers. However, rnuch of this literature consists of artide-length binary comparisons; Smiley's An Elected Senate for Canada? Clues front

lie Alistralian EkperienceUis typical. Cornparisons of second chambers are also pursued as part of more comprehensive single country studies, such as that offered by Galligan for

~ustralia",or as part of more general federal comparisons, such as Watts' Compariug

Federal sYste>ns.ls However, the most recent anal yiicall y thorough treatmen t focused solely on federai bicarnenlism is Shman's "Second ~harnbers".'~ Commrative Bicameralism In Bicanieralism, Tsebelis and Money are primariiy concerned with the legislative review role of second chambers.'' They argue that these institutions alter legislative outcornes even if they do not have the power to veto legislation and even if they have the same composition as the first chamber. TsebeIis and Money survey the history of bicarneralism, and how the con temporary bicarneral legislatures of some fi fty countries produce legislation. They use France as their primary case study, and supplement this case with less in-depth studies of Germany, Japan, Switzerland, the United States and the European Union. At the core of the analysis by Tsebelis and Money are the processes of interaction between first and second chambers. They analyse these interactions utilising game-theoretic models of both cooperative and non-cooperative behaviour. Tsebelis and Money distinguish between 'class-based' second chambers in unitary states, and 'temtoriaily-based' second chambers in federal states. They note that the 'political', or representative, role of federal second chambers is ernphasised, rather than the 'efficient', or legislative review, role. 8 Tsebelis and Money concl ude that, in accord with expectations, bicameralism makes changes to the legislative status quo more difficult. if change does occur, it is via processes of both cooperation and conflict between the chambers. Further, they conclude that the details of this interaction are critical to understanding both behaviour within each c ham ber and the legislative outcornes generated. Tsebelis and Money do not focus on the causes of institutional evolution of second charnbers. They are primarily concemed with the legislative review role and with intercameral interaction, not with the representation roie. In addition, they ignore intergovernmental relations as a possible role for a federal second chamber. Patterson and Mughan, in Senates: Bicameralism in the Confemporary World, set out two objectives for their edited volume." The first is to fil1 a vacuum in the English language literature. They suggest that, with the exception of the U.S. Senate. little is known about individual second charnbers, and still less about them in a comparative sense. Thus, their first objective is to provide descriptive accounts of the composition and operation of second chambers in a range of countries. Their second objective is to highlight the fact that bicameralism is important for the theory and practice of democratic governance. While acknowledging that second chambers rnay have wide-ranging instrumental and symbolic purposes, they focus on the two functions most commonly attributed to these institutions: representation; and redundancy, or Iegislative review. The case studies encompass second charnbers of nine countries, (Australia, Canada, France, Germany, Italy, Poland, Spain, the United Kingdom, and the United States), and include both unitary and federal systems. From these studies Patterson and Mughan draw a number of conclusion^.^^ First, that, with the exception of the U.S. Senate, second chambers general ly enjoy less power and prestige than first chambers. This finding is traced primarily to the constitutional design of parliamentary systems. Second, they conclude that second charnbers in parliarnentary systerns, whether federal or not, are contested institutions, in the sense that their existence is commonly a 9 matter of dispute. They find the philosophy of majontarian democracy inherent in parliamentary systems to be the cause of this contention. That is, they suggest that the logic of parliamentary systems is concentration of power, not its dispersal, and that second chambers in these systems thus have fewer philosophical supports. Patterson and Mughan's third conclusion is that second chambers are important and influential parliarnentq institutions; their fulfillment of their roles does affect policy outcornes. However, this conclusion is tempered by their fourth conclusion. that second chambers are more important as chamben of review than as chamben of representation. They believe that the behaviour of second charnbers is suuctured more by their legislative review function than by their representation function. They argue that this is so as rnembers of second charnbers do not afways have clear constituencies to which they are accountable; even where the members do have clear constituencies, partisan competition with the first chamber may be more determinative of members'behaviour than is constituency representation. However, they argue that, whether a second chamber pursues representative or partisan goals, it can still serve its legislative review function. Finally. Pattenon and Mughan conclude that second chambers are becoming more important as shapers of policy than they have been in the recent past. They believe that second chambers are becoming more assertive in relation to first chambers, even where the constitutional rules have not changed. They cite three reasons for this development. First, they credit partisan competition. They note an increased incidence of ideological differences between the political parties in control of the two charnbers, leading to increased competition between them for legislative influence. Second, they credit a lack of respect for the second chamber by members of the first chamber. As first chambers have attempted to by-pass or ovemde what second chambers regard as their constitutional privileges, second chambers have reacted with even greater resistance and assertiveness. Third, they credit the "crystallization of divergent views of the nature of democracy itself in lower and upper charnber~."~"While first chambers embody rnajoritarian views of 1O democracy, second chambers embody non-majoritarian views of democracy. Thus, when elected majorities in first chambers assert their right to fulfill what they perceive as their mandates, even unelected members of the second chamber may feel it is their

constitutional responsibility to protect minorities that are threatened by what may be a merely transient majority. Patterson and Mughan make only some general introductory remarks regarding the causes of institutional evolution. They credit change to adaptation "to major events. changing political reaiities. and evolving politicai conventions and noms."" However, they draw no conclusions regarding the causes of institutional evolution from their case studies. In addition, as Patterson and Mughan wish to draw generaI conclusions concerning bicameralism, they play down the possibility that significant differences may exist between second chambers in unitary and federal systems. Whi le they acknowledge a possibility of a dissimilarity in their introductory chapter, they draw no distinctions in their conclusions. For instance, they do not acknowledge the possibility of an intergovernmental relations role for a federal second chamber.

As implied in the title of her book, Reforming the Home of Lords: Lessons frorn

7 1 Overseas,-- Russel 1 has instrumental purposes for studying second chambers. Her pnmary aim is to bring a comparative perspective to the ongoing process of institutional change in the United Kingdom. The book surveys the composition, functions, powers, and operation of seven second chambers: those in Australia, Canada, France, Germany, Ireland, Italy, and Spain. As befits her purpose, al1 these countries have some form of parliamentary government. Russell's final conclusions are focused specifically on Lords reforrn, and therefore are not gerrnane to this study. However, she cornes to a number of intermediate comparative conclusions in the course of her analysis, several of which are of relevance for us. II First, she notes the high degree of heterogeneity in the composition of second chambers in her study? She argues that this heterogeneity is bound up with the diffenng histories, traditions, and political systems of these countries. Second, she proposes three interlinked elements that must be present if a second chamber is to be effective? First, the second charnber must have a composition distinct from the first chamber. Both the method of composition and party balance are important. Second, the second charnber must have powers sufficient to balance those of the first chamber. Otherwise, its legislative impact wiII be less than adequate. Third, the perceived legitimacy of the second chamber is critical to its success. A second chamber with a distinct composition and nominally adequate powers will remain ineffective if it is unable to secure public support. A third set of intemediate conclusions to which Russell cornes concern what she proposes as a "new mode1 second ~harnber."~On the basis of the analysis of her seven cases, she suggests the following as features a second chamber should possess: it should represent constituent territorial units; it should have functions distinct from the first chamber; it should not have the power to remove the government from office; it should have less power over financial legislation than the first charnber, but more power over constitutional change; it should not be controlled by the govemment; it should be directly elected, although indirect election might provide better links to constituent units; it should have fewer members than the first charnber; it should have a parliamentary term that is longer than that of the fint chamber, and it should only be renewed in parts? Russell does not focus solely on federal second chambers, as she is concerned with institutional reforrn in a nominally unitary state, the United Kingdom. Neither does she concentrate on the causes of institutional evolution. Comparative Bicameralism in Federal Svstems Watts considers federal second chambers as part of his wider work, Coniparirzg FederaZ ~~s~enzs.'~He points out that the pnnciple of bicameralism has been 12 institutionalised in the federal legislatures of most federations? He suggests three institutional Factors that directly affect the way in which a second charnber carries out its roles." These include the method of selection of members, the composition of the charnber. and the powers of the chamber. Watts notes that the legislative review role of second chambers in federal systems is closely linked to the representation of regional and minority interests.jO In addition, however, he notes the possibility of a role for such a chamber in facilitating intergovernmentat relations. Watts does not explore in depth the causes of institutional evolution in his study. He does offer, however, by way of a general comment, that federations evolve as a result of a complex and dynamic interaction between social forces and political institutions." In his article entitled "Second Chambers", Sharman explores the relationship between federalism and bicameralism. He notes that "the relationship between these two principles of govemment appears confused and ambigu ou^."'^ He credits four closely related issues as being at the source of the confusion." First, it can be difficult to sort out from the histoncal record the exact nature of the original political compromise that was necessary to secure federal union in a country. Second, it is often unclear as to how the second chamber is meant to perform its federal role; i.e., is it primarily a check on the power of the general government, primarily a forum for the protection of the less- populous constituent units, or primarily a forum for the injection of regional preferences into the processes of the general govemment? Third, second charnbers in federal systems suffer from confusion over their role as chambers of federal representation and their possible function as components of a systern of 'limited government'. Fourth, it is difficult to differentiate those features of federal second charnbers that are inherent to their design, and those that are caused by the particular political context. Sharman does mention, but does not explore, the causes of institutional ev~lution.~"He suggests two elements as king important. Fint, that the original design 13 of these institutions is usually a compromise. and thus that ambiguities are often embedded in their structure which permit a variety of evolutionary paths. Second, that changes in the political environment, such as alterations in party structure or modifications to an electoral system, can trigger major adjustments in institutional operation. Sharman concludes that there is no necessary relationship between fedenlism and bicarnerali~rn.'~Attempts to entrench particular patterns of constituent-unit influence in

the national govemrnent fa11 victim to cross-cutting influences, such as those of national

political parties. However, Sharman does see ii connection between federalism and bicameralism in that both are based on a concept of constitutionalism that encompasses ideas about the dispersal of power. Thus, both imply preferences for incremental change, negotiated solutions, and responsiveness to a wide range of political preferences. This Thesis in Relation to the Literature

The general comparative literature on bicameralisrn does not explore the full range of possible roles for second chambers, nor does it investigate in depth the causes of institutional evolution. This literature notes only in passing that second charnbers may be affected by a tension between majoritarian and non-majoritarian conceptions of democracy. The comparative literature on bicameralism in federal systems does a more thorough job of noting the range of roles federal second charnbers may play, and hints at. but does not explore in detail, the possible causes of evolution of the roles of these institutions. This literature does not fully conceptualise the representation role of federal second chambers as an element of non-majoritarian democracy. Thus, neither literature focuses speci fically on the causes of the institutional evolution of second chambers in a comparative perspective. Nor does either speci fically relate, in a comparative context, the non-majoritarian democratic dimension of second chambers to their evolution. 14 This, then, will be the contribution of this thesis. It will make a systematic attempt to relate the causes of institutional evolution of second chambers in the central -ooverning structures of federations to their role as the institutional expression of territorial non-majoritarianism. Factors anticipated to be relevant Our review of the literature has indicated two broad factors which may be important to the evolution of second chambers. These include the original institutional design, and the possibility of ambiguities or inconsistencies therein, and changes in the socio-political environment. The theoretical approach which stresses the interaction of institutional and social factors is historical institutionalism. Therefore, this study will be conducted within this theoretical framework; it will be useful to briefly outline this approac h. Historical institutionalism takes a middle road between two previous movements. Formal-legal studies. the prevalent approach prior to World War II. consisted of detailed anaIyses of constitutions, forma1 government institutions, and the legal frarnework of government. This approach tended to underestimate the effect of the social context in U which the formal institutions were embedded. By contrast, behaviouralism, the most popular approach after World War II, emphasised the importance of political behaviour, individual citizen attitudes, and the informa1 distribution of power in society. At the extreme, the formal institutions of government were regarded as merely a mechanism registering the outcomes of societal conflicts, and as having no independent effects of their own.

Beginning in the 1970s, adherents of the hew institutionalism'argued that institutions were neither determinative nor irrelevant; rather, they argued that institutions influenced outcomes via their structuring effects on political confl~ct.~However. these effects were believed to be pervasive; the institutions were held not only to channel conflict, but to affect the goals of participants in the conflict." The approach recognises 15 that there exists both a macro-organisation of societal groups, and a micro-level of individual preference. It focuses, however, on the mid-level institutions that structure potitical conflict.

The importance of this account for our purposes lies in the way in which it underscores the subtlety of historical institutionalism as a theoretical framework for

explaining institutional evolution. A comparative study of institutional design and operation must incorporate the historical specificity of the particular social context of each country. Only a study that considers both general, cross-national sirnilarities and

contrasts as well as within-country social influences is believed to be valid. It is within this theoretical framework, then, that this study falls. We will focus on the second chamber in each of four federal countries as one of the mid-level institutions that structures political conflict, but that is also structurally altered by that conflict. Thus, we will be considering both how the initial institutional design of second charnbers affects what roles they perform and how they carry these out, and how social forces affect the evolution of second chambers.

As the literature suggests that ambiguities in the original design of a second chamber may play a role in the institution's evolütion, we will be considering how the second chambers in our study came to be designed as they were. It is anticipated that both extemal and interna1 factors will be important in the initial design decisions. The primary external factor may be demonstration effects provided by second chambers of previously established political systems. Interna1 factors may faIl into two categories. Historical institutionalism suggests that path dependency is important to the study of institutions. Path dependency encourages the establishment of institutions similar to those wi th which the designers have experience. As a counterbalance, histoncal learning may encourage the establishment of institutions differing from those of the past. Both path dependency and historical learning are anticipated to affect initial design decisions. Several institutional factors have been shown to affect the ovemll evolution of federal systems, and may be anticipated to affect the evolution of second chambers. The form of the executive is one such factor, presidential-congressional systems allow for stronger second chambers than do parliamentary systems." Similarly, weak pxty discipline associated with presidential-congressional systems, versus strong party discipline associated with parliamentary systems, may have an effect." The form of the distribution of powers may be a factor; i.e., second chambers in systems that feature exclusive lists of powers may differ from those featuring primady concurrent p~wers.~ Several broad social factors are anticipated to affect the evolution of second chambers. These are anticipated to include structural factors and ideological trends. As well, it is anticipated that demography may be important: second charnbers in federations featuring a relatively homogenous population rnay evolve differently from those in multi- ethnic or multi-linguistic federations, especially where these different groups are terri tonal1y concentrated. OUTLINE OF THE THESIS Selection of Cases The federal systems selected are the United States, Canada, Australia, and Germany. These federations were selected because they represent a range of variation in second chambers. and because each has existed for a sufficient length of time to allow for institutional evolution. The U.S. Senate was the first modem federal second chamber and i s the paradigrnatic second cham ber in a presidential-congressional system; the Canadian Senate is emblematic of the dangers for a second chamber which fails to evolve; the Australian Senate shows the difficulties of combining a strong second chamber with parliarnentary government; and the German Bundesrat is the paradigm for second charnbers with an intergovemmental role. The United States The United States became the first modem federation in 1789. Under the Articles of Confederation of 178 1 the 13 states had adopted a confederal fom of governrnent; however, this arrangement came to be considered insufficiently centralised to allow for effective common action. The Philadelphia Convention of 1787 began the proçess which produced the new federation. The federation survived an attempted secession of southern states in the 1860s, but at the cost of a civil war. The United States is now composed of 50 states, as wel1 as a number of minor associated territones.

The population of the U.S. is now in excess of 300 mil lion, spread over a continent-wide Iand mass which constitutes the fourth largest country on earth. WhiIe the United States has significant black and hispanic minonties nation-wide, in no state does either constitute a majority of the population. Thus, in cornparison to some other federations, it may be considered a relatively homogeneous society.

The U.S. is considered to be "moderately decentralized."" Over time, the federal government has become increasingly powerful; however, the states retain considerable administrative flexibility. The constitution lists specific concurrent and exclusive subjects under the authority of the federal government, with the residual subjects remaining with the states. Canada Canada became a federation in 1867. The new arrangement was in part an atternpt to overcome political diffiçulties experienced by the Union of Upper Canada (Ontario) and Lower Canada (Quebec) created in 1840. The federation split these united provinces into two separate units, and incorporated two other self-goveming former colonies, New Brunswick and Nova Scotia, ris additional provinces. Canada is now composed of ten provinces and three territories.

As a country, Canada has the second largest temtory on earth. Its population, now in excess of 30 million, is primarily concentrated in a narrow band across the 18 southemmost areas of the country. The primary linguistic di vide is English-French: whi le nine of the ten provinces are overwhelmingly English-speaking, Quebec is 80% French- speiiking. The population of Quebec now constitutes approxirnately 25% of the total Canadian population. Both French-English duality and strong regional identities have shaped the history of the Canadian federation. Of late, recognition of Canada's aboriginal

population fias ken an issue in the federation. Canada has developed as a relative1y decentralised federation, despite an original consti tutional design which stressed centralisation." The consti tution lists excl usive federal, exclusive provincial, and concurrent powers, with the residual power resting with the federal govemment. A major constitutional revision occurred in 1982, when an amending formula and a charter of individual rights were adopted. Australia The Australian federation was established in 190 1. It united six self-goveming colonies of Britain, spread around the perimeter of the continent. Federation carne after a series of negotiations which occurred in the 1890s. Australia is presently comprised of six states and two territories, as well as seven minor associated units. Australia has a relatively homogeneous population of about 18 million, still largely concentrated in bands of settIement around the coast of the country. While recently there has been considerable immigration from Asia, and the country is stmggling to corne to terms with its aboriginal population, neither of these minorities constitutes a majority in any state. Australia has developed as a relatively centralised federatiomA3In financial matters the federal govemment is particularIy dominant. The constitution enumerates a short list of exclusive federal powers and a substantial list of concurrent powers, with residual powers remaining with the states. Germany The Federal Republic of Germany came into king in 1949. The institutional structure was much influenced by the experience of the Gerrnan Empire (1871-1918) and the Weimar Republic (1919-33). Originally constituted of 11 units, or Lander, the reunification of Germany in 1990 brought the accession of five new Lander. With the addition of the former East German Landec, Gerrnany is a large country by European standards, about the size of California, and has a population of o 80 million. The German populace is relatively homogeneous, although there are differences in political culture between the former East- and West-Germany. Germany ran ks as a moderately decentralised federation. This decentralisation i s expressed more via Under influence in the national parliamentary institutions than via Lander legislative independence. The constitution gants a broad range of exclusive, concurrent and framework legislative powers to the federal government, but the Ender have constitutional responsibility for the administration of much of this legislation. The residual legislative power lies with the Lander.

Organisation- of Chapters For each case, we will begin by investigating the political forces at play when the second charnber was established, how these influenced the initial design of the second chamber, and how these might be conceptualised in a majoritarian versus non- majontuian framework. As noted above, both external and interna1 factors will be considered. Next, we consider how the second chamber has evolved in regard to its role as the institutional manifestation of temtorial non-majoritarianism, and what factors were important in influencing the direction of that evolution. Both the effects of the institutions themselves and those of the social environment will be investigated. Finally, we move on to a discussion of the second chamber's contemporary role.

We will be concemed with how the present roles of the second chamber express a continuing cornmitment to territorial non-majoritarianism. The conclusion of the study will pull together the case study analyses. It wilI compare and contrast the findings from each case study, in an attempt to draw out general themes and discernible patterns. Finally, it will summarise the findings, place the findings in the context of the literature, and suggest what additional work might be warranted to further extend the results. NOTES

1 Arend Li jp hart, Dernocrucies: Patterns of Majoritarian and Consensrts Govenzrnerzt in Twerzty-One Countries (New Haven: Yale Uni versi ty Press, 1984)- Meg Russell, Reforming the Hoitse of lords: Lessons From Overseas (Oxford: Oxford University Press, SOOO), 21. 3 ibid., 22. f Ibid., 21. 5 Alexander Hamilton, James Madison and John Jay, nie Federalist Papers [ 17881 1. Kramnick, ed. (New York: Penguin Books. 1987), 37 1. 6 Donald V. Smiley, me Federal Condition irz Canada (Toronto: McGraw-Hill Ryerson, 1987)-83. 7 Donald V. Smiley and Ronald L. Watts, Intrastate Federalism in Canada (Royal Commission on the Economic Union and Development Prospects for Canada Vol. 39; Toronto: University of Toronto Press, 1985), 4. 8 David El ki ns , Beyond Sovereign ty: Territorial and Pol itical Economy Ni the Twer zty - First Cerrtrtry (Toronto: University of Toronto Press, 1995). 9 Russell, Refonrzing the Horrse of lords, 68-73; André Alen and Rusen Ergec, Federal Belgirtni Afier the Fortdz State Refonu of 1993 (Brussels: Ministry of Foreign Affairs, External Trade and Development Cooperation, 1994), 36-37. 'O Russell, Refonrzing the Hoitse of lords. II George Tsebelis. and Jeanette Money, Bicarneralisrri (Poli tical Economy of Insti tutions and Decisions Senes; Cambridge: Cambridge University Press, 1997). 17 Samuel C. Patterson and Anthony Mughan, eds., Serzates: Bicarneralisnz irz the Corzrenzporury World (Columbus Ohio, USA: Ohio State University Press, 1999). 13 Donald V. Smiley, An Elected Senafefor Canada? Clrres front the Artstraliarz Experience (Insti tute of Intergovernmental Relations Discussion Paper No. 2 1; Kingston: Institute of Intergovemmental Relations, 1985). 14 Brian Galligan, A Federal Repitblic: A~tstralia's Constirutiorral Systeni of Govenznzent (Cam bridge: Cambridge Uni versi ty Press, 1995). 15 Ronald L. Watts, Conzparirzg Federal Systenzs (2nd ed.; Montreal and Kingston: McGi 1 1-Queen's Uni versi ty Press, 1999). Campbell Sharman, "Second Chambers," in Heman Bakvis and William M. Chandler, eds., Federalisnr and the Role of the Sfate (Toronto: University of Toronto Press, 1987), 82- 100.

" Tsebelis and Money, Bicarneralisrn. I8 Anthony Mughan and Samuel C. Patterson, "Senates: A Comparative Perspective," in Samuel C. Patterson and Anthony Mughan, eh., Senares: Bicanleralism in the Corzrenzporary World (Columbus Ohio, USA: Ohio State University Press, 1999), 336- 37.

l9 Ibid., 338-46.

'O Ibid., 345. " Samuel C. Pattenon and Anthony Mughan, "Senates and the Theory of Bicarneralism," in Samuel C. Patterson and Anthony Mughan, eds., Senates: Bicanteralisrn in the Contemporary World (Columbus Ohio, USA: Ohio State University Press, 1999), 16.

7 7

" Meg Russell. Refonnittg rite Horcse of Lords: Lessons Fronz Overseas (Oxford: Oxford Uni versi ty Press, 2000).

" Russell, Refonnbig the Hozcse of lords, 76-77.

" ibid., 253-54.

" ibid., 254.

" Ibid., 255-57. 17 Watts, Comparing Federal Systerns, 92-97. 2s Ibid., 92.

'9 Ibid.. 92. 'O 'O Ibid., 97. j1 Ibid., 16. j'. - Sharman, *-SecondChambers." 82. " Ibid., 82-88. j4 Ibid.. 88-90. j5 Ibid., 96. 36 Theda Skocpol, "Bringing the State Back In: Strategies of Analysis in Current Research," in P. Evans, D. Reuschemeyer, and T. Skocpol, eds., Bririgiitg the State Bad hz (New York: Cambridge University Press, 1985), 20, 28. 37 Kathleen Thelen and Sven Steinmo, "Historical lnstitutionalism in Comparative Politics," in Sven Steinmo, Kathleen Thelen, and Frank Longstreth, eds., Stncctun'rtg Politicsr Historical I~istitrrtionalisrnin Cornpurative Anulysis (Cambridge: Cambridge University Press, 1992), 2. 38 Watts, Conlparirzg Federal Sysrenzs, 96. j9 Ibid., 91.

''O Ibid., 4L. 4 I Ibid., 2 1. 17 ibid., 24. 43 Ibid., 25. CHAPTER TWO THE SENATE; OF THE UNITED STATES

INTRODUCTION The initial design of the United States Senate provided for an institution which expressed non-majontarianism in four ways. First, it was designed to be a conservative legislative institution in the tradition of the British House of Lords. Second, it was intended to operate as one element of a system of lirnited govemment. Third, it was designed to represent the interests of al1 the constituent units of the federation. Fourth, it was designed to defend the interests of the sma1Ier states. Thus, the Senate from the beginning has brought a non-majoritarian aspect to both the overall roles usually performed by second chambers; i-e., legislative review and regional representation. We will investigate the factors which led the framers of the U.S. constitution to design a Senate with these non-majoritarian elements, and the processes via which the specific non-majontarian features of the Senate came to be adopted. We will identify a number of institutional and social factors which have ken important in the evolution of the non-majoritarian characteristics of the U.S. Senate. We will see how these factors have contributed to the development of the Senate as a relatively prestigious, independent, powerful, directly elected, nationally focuszd but regionally sensitive IegisIative body. Finally, we will demonstrate that the conternporary Senate still operates as a non- majoritarian mechanism in the U.S. systern of govemment. We will note that the Senate still acts as a check on the first chamber, and that the directIy elected Senate has modified rather than elirninated its original role as a representative of the states. ORIGINS

The basic elements of the history of how the U.S. Senate came to be designed as it is are relatively uncontroversial. Under the Articles of Confederation, adopted in 178 1, 25 the 13 states had equal representation in the unicameral Congress. A consensus

developed that government under the Articles was weak and ineffective, and that changes were necessary. The Philadelphia Convention of 1787 was called to try to design a new institutional arrangement. The Convention was scheduled to begin on May 14, 1787, but, due to late mivals, did not achieve a quorum until rwo weeks later.' The Virginia delegation, which arrived on time, took advantage of the interim to put together a proposa1 which it subsequently presented to the Convention. The Virginia Plan proposed a powerful new national govemment consisting of a national executive, judiciary, and bicameral legislature. While the Plan was incornpiete in its details, it set the outlines for the ensuing negotiations. The Virginia Plan called for the composition of both houses of the legislature to be based on representation proportional to population. On June 11. 1787, votes were taken on the composition of the two chambers.' Representation by population in the fint chamber passed handily, while the vote for such representation in the second chamber passed by only one vote. As the rules of the Convention allowed issues to be raised and voted upon repeatedly, and as the representatives of one small state had not yet arrived at the Convention, the small states did not accept their defeat in the vote. On June 15, the delegates from the smail states advanced a counter-proposal to the Virginia Plan, in the form of the New Jersey plan.' This proposal called for the retention of the unicameral Congress which existed under the Articles, including its composition by equal state representation. The Pian did allow for the creation of a federal executive and supreme court. The Convention suuggled with the issue of Senate representation for the ensuing month. On July 2, a second vote was taken on the issue, which demonstrated how divided were the delegations: the vote was evenly split." A cornmittee was fonned, of one member from each state delegation, to consider the question in an attempt to break 26 the deadlock. The Great Compromise' that emerged from the cornmittee three days later balanced increased power for the first chamber over money bills with the provision that each state should have an equal vote in the senate.' The Convention amended the report's recommendations to further enhance the strength of large states in the first chamber, but finally accepted the principle of equal state representation in the Senate in a vote on July 16.~ Beyond these bare facts, there has ken much discussion of the motivations of the Convention participants, whether or not positions taken were principled or strategic, and whether later accounts of the events were offered as reportage, as rationalisations, or as propaganda intended to rally support for the decisions taken. Four lines of thinking can be identified in regard to the design of the Senate at the Philadelphia Convention. First, there is the interpretation that dates back to the time of the Convention itseif: that "the framers intended the Senate to serve as a representative of the states and a check and balance on the people and their representatives in the lower h~use."~This interpretation is grounded in 77w Fecieralist, a collected series of papers published after the Convention, and authored by three of the Convention participants. In

The Federalisr Madison explained that the Senate would be "at once a constitutional recognition of the portion of sovereignty remaining in the individual States and an instrument for preserving that residuary so~ereignt~."~As well, he noted that the Senate would "be sometimes necessary as a defense to the people against their own temporary errors and del us ion^."^ ~hisview of the Senate has been accepted and expanded upon by a number of scholars.'O A second view, also grounded in The Federalisr, stresses the role of the Senate as a component of a system of limited government." This view suggests that. although the framers cited a number of explanations for the design of the Senate, there was one panicular explanation to which they always retumed. This was the need to disperse governmental power. Thus, from this perspective, bicameralism in the U.S. is seen 27 primarily as a method of restraining political power.

A third view incorporates the functions of the Senate espoused by the earlier analyses, but places these in a conservative context. From this perspective the pnmary concern of the framers was to create an institution which would, in both form and function, as closely as possible resemble an idealised conception of the British House of ~ords." This position suggests the Federalist framers were part of a conservative elite which feared that their society was under threat in three ways. First, they perceived a social threat, in that the cornmon people were challenging what the frarners believed to be a beneficial social hierarchy. Second, they perceived an economic threat, in that schemes for economic redistribution had arisen in the States, leading the framers to believe that security of property mipht be under threat. Third, they perceived a governmental threat, in rhat anarchical dernocratic processes were threatening elite leadership in state legislatures.

A fourth view sees the equal representation aspect of the design of the Senate as pnmarily the result of a series of historical contingencies which led to a political deal at the convention." Stressing path dependency as a factor, this perspective looks to the historical context and internai dynarnics of the Convention, and suggests that any functional explanation of the design of the Senate is sirnply posr-facto rationalisation.

Evidence for this view is drawn pnmarily from the records of the Convention itself. A comment of Madison's from 77le Federalist also provides support for this stance: The equality of representation in the Senate is another point which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not cal1 for much discussion....[ I]t is superfluous to try, by the standard of theory, a part of the Constitution which is allowed on al1 hands to be the result, not of theory, but 'of a spirit of ami ty, and that mutual deference and concession which the peculiari ty of our poliiical situation rendered indispensable'.14

For our purposes, two themes may be drawn from these explanations. First, the framers held a mix of dernocratic ideals, both majoritarian and non-rnajorïtarian, and anti- democratic ideals. While we will attempt to distinguish arnong these in our analysis. it is important to recognise that such, to modem eyes, contradictory motivations CO-existedin the minds of delegates. Second, al1 four sets of explanations, either explicitly or implicitly, provide a motivation for a non-majoritarian design of the Senate. It is not critical to this project to decide which of these four sets of explanations should be assigned primary causal power. Rather, what is important for us is that there were multiple reasons for choosing a non-rnajoritarian design. With this knowledge. we can now consider how the specific non-majoritarian design of the Senate was adopted. We focus on three decisions: the choice of a bicameral Iegislature; the choice of a method of selection of Senators; and the decision to have equal representation of states. The delegates held many similar beliefs conceming the principles of the proper structure of political institution^.'^ One of these was a belief in bicarneralism. The delegates had been educated to idealise the English constitution, and its embodiment of the principies of mixed government. These principles prescribed a conservative, even anti-democratic second charnber, as a check on the possible legislative excesses of the majori tarian first charnber. The expenences of the states in the post-revolutionary period had confinned to the delegates the need for a legislative check on the first chamber.'' At the time of the Convention, al1 the states except Pennsylvania had bicarneral ~e~islatures."However, following independence, the power of the second chambers in most of the states had been weakened relative to the first chambers. Financial crises that erupted following the war for independence led to many state first chambers becoming dominated by parties which supported debtors' interests. Legislation was passed which invalidated contracts, deferred foreclosure on debts, and abrogated previously held rights of property. According to Madison, such "interferences ...were evils which had more perhaps than any thing else produced [the] con~ention."'~Elections for these first charnbers were held 29 annually, or even, in some States, every six months; with the first chamber of the federal

legislature to be elected on a majoritarian basis for short periods as well, two years, delegates were deterrnined to establish a non-majoritarian second chamber as a check. It was in this context, then, that the Convention was able, in late May, to adopt easily the Virginia Plan's resolution that the legislature should be bicamera~.'~The delegates' ideological beliefs in the need for mixed government combined with their expenences of state government under the Articles led them to prefer that the second charnber should be a relatively small, relatively distinguished, and relativeIy non- democratic house.'* As noted above, in this sense the Senate was to be the U.S. counterpart to the British House of Lords. The framers' belief in the need for Iimited government was closely allied to their belief in mixed govemment. However, while the latter was closely linked to anti- democratic sentiments, the former was more centred on non-majoritarian democratic ideals. In defending the design of the institutions of the new republic, Madison notes: In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their cornmon dependence on the society will admit."

While this is linked to the rnixed government ideal, differing modes of selection allowing differing interests to prevail in the two legislative houses, the sense is also of two legislative bodies tempering each other's actions. Madison further alludes to this 'limited government' role of the Senate: In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided arnong distinct and separate departrnents. Hence a double security arises to the rights of the people. The different governments will control each other, at the sarne time that each will be controlled by itself." Thus, in designing the U.S. Senate, the founders had a specific interest in ensuring, through differences in modes of selection and composition, that the second chamber would act as a counterbalance not only to other branches of government, but to the other house of the same branch. Thecefore, the Senate would, at the same time, accomplish the ends of both rnixed and limited government, and embody both non- dernocratic and non-majoritarian democratic ideals. While the principle of bicamerdism was generally accepted, as we have noted above the New Jersey Plan proposed a unicamerd legislature. This seems, on its face, to be a senous inconsistency: the states had, after all, already unanirnously supported bicameralism in the vote of May 3 1." This apparent inconsistency is explicable if one

sees the New Jersey Plan as more of a tool of negotiation than a serious proposal. A delegate from Delaware said as much to Madison on June 15, the day the New Jersey Plan was introduced: [Y]ou see the consequences of pushing things too far. Some of the members from the small states wish for two branches in the General Legislature, and are friends to a good National Govemment; but we would sooner submit to a foreign power, than submît to be deprived of an equdity of suffrage, in both branches of the leaistature, and thereby be thrown under the domination of the large tat tes."

It is clear that the message was received by the delegates of the larger states, as the convention quickly came to see the New Jersey Plan for what it was: not a constructive alternative that small-state delegates embraced on its own merits but a warning that if the convention spurned equal Senate representation for al1 states they would at most support only a reformed con federati~n.~

Thus it was that discussions on other aspects of the makeup of the Senate continued after the introduction of the New Jersey Plan. The decision to opt for selection of Senaton by state legislatures contributed, via path dependency within the Convention, to the decision to have states equalIy

31 representedS3 Three methods of selection were senously considered at the Convention: selection by state legislatures; selection by the House of Representatives from persons nominated by state legislatures; and direct election from constituencies comprised of several states. The srnall states consistently supported the idea of selection by state legislatures, in the knowledge that this would lead to the idea that each state must have at

least one Senator. Large states opposed this method, in the knowledge that if each state had at least one Senator, and their preference for proportionality in representation were adopted, the Senate would have to be rnuch larger than the relatively small house they preferred. The initial Virginia Plan proposal for selection of Senators by the first charnber frorn nominations made by state Iegislatures was defeated on May 3 l? While the idea of 'filtering'the membership of the Senate through both state legislatures and the first charnber of the federal legslature had some attractions for those favouring an elite second chamber, the small-state delegates were joined in their opposition to this method of selection by iarge-state delegates who believed this mode of selection would make the Senate too dependent on the House of Representatives. The idea of popular selection in multi-state districts was considered, but eventually rejected? For the most part, election was rejected because it contradicted the vision of the second charnber as an elite, non-democratic body. One delegate made it clear that he believed selection by the legislatures was to be preferred as it would provide '*abetter guard agst. bad rneasures" than would popular election."> The remaining alternative, selection by state legislatures, had three advantages.

First, it served the non-dernocratic cause of establishing a legislative body which would be selected by a political elite once-removed from popular opinion. Second, it served the non-majoritarian objectives of al1 states by, as they thought, giving them greater control over their Senators. Third, it served the non-majoritarian objectives of the small states, in that it ensured that no state would go without Senate representation. On June 25 this 32 option was endorsed by the Convention; Madison is said to have been "deeply disappointed" by this decision, as he realised this was Iikely the death knell for a Senate based on representation by population.30 The success of the small states in achieving their goal of a Senate with equal representation from each state was in part due to the decision to have Senators selected by state legislatures, but was also in part dependent upon a longer term histoncal precedent.3' The Convention held to the principle that each state had an equal vote. This was in keeping with the voting system in Congress under the Articles of Confederation, an arrangement which itself was following the precedent set by the Continental Congress (1774-8 1). Equal state voting in the Convention meant that three populous states were set in opposition to ten less-populous states; thus, the bias of the Convention for equal state representation in the new Senate was clear. However, as one of the less-populous states failed to send representatives to the Convention, and another's did not amve until Su1 y, the imbalance was narrowed somewhat. Madison and the other representatives of the populous states attempted to appeat to those states that were expected to becorne populous, in order to form a winning coalition. As we have noted, the populous states were initially successful in the June 11 ballot, which they won by one vote. In the end, however, the equality-of-states voting rule at the Convention carried the day for the less-populous states. They demonstrated via the New Jersey Plan that they were willing to see the Convention fail rather thrin accept a Senate based on representation by population. While some delegates of the populous states were willing to attempt to circumvent the equality mle by agreeing among themselves and then forcing the less-populous states to compIy. most delegates were not prepared to countenance a stntegy based on coercion." When the committee finally recornmended the Great Compromise', the coalition in favour of representation by population collapsed, and the equali ty rule prevailed.

It is obvious that the difficulties involved in sorting out the origins of second 3 3 chambers noted by Sharman are exemplified by the U.S. case. However, several points are clear. First, a prevailing ideological predisposition to bicamerdism played a role in the final result. Most, if not all, participants seem to have favoured this model. Second, although delegates differed over the specifics of the design of the Senate, they were united in their desire that the Senate somehow express non-majoritarianism. This desire onginated in both anti-democratic and non-majontarian democratic impulses. Third, historical learning was important. The participants were motivated to make changes in part from their dissatisfaction with the operation of the Congress since 178 1. In addition, they were determined not to produce a weak second chamber of the sort that had emerged in the states after the revolution. Fourth, path dependency was an important factor in the specifics of the Senate's design. Apart from their ideological predisposition toward bicamenlism, al1 delegates, except those from Pennsylvania, were from states that had chosen bicameral designs for their own legislatures. Short-term path dependency in the Convention itself benefited the choice of the mode of selection of Senators and thereby the equal apportionment of Senators to states. Finally, the precedent of equal state votes in the Congress under the Articles, which led to the voting rules of the Convention itself, provided a bias in favour of the outcome of equal representation of states in the Senate. Thus, the principle of territorial non-majoritarianism survived the best laid plans of the delegates from the larger states. EVOLUTION The Senate that emerged from the Convention was a compromise design which represented a balance between large and small state interests, between those prefemng a strong national Congress and those prefemng the retention of state autonorny, and among anti-democratic, majoritarian democratic, and non-majoritarian dernocratic ideals. We will consider both the institutional and social influences that have affected the Senate's subsequent development. Insti tutional Factors

Institutional design has pervasive effects on the subsequent evolution of the role of the institution. We will consider the effects of the following faceis of the U.S. insti tutional structure: the presidential-congressional system; the distribution of powers; the composition of the Senate; the length of Senatonal terms; and the method of selection of Senators. The fact that the U.S. govemment is a presidential-congressional system has

affected the evolution of the Senate in two ways. Frst, this system is characterised by the separation of powen, among the executive, legislative, and judicial branches of govemment. Power is thus dispersed arnong the institutions, rather than concentrated. In contrast to the parliarnentary systems, in which executive domination of the legislature has become a prominent feature, this power dispersal has meant that no one branch of the system has come to dominate the others. Therefore, the Senate has been alloived to develop as a relative1y strong, independent representative institution. Second, the presidential-congressional system allows weak party bonds to perrneate the system. Because the survival of the executive in office is not dependent upon the maintenance of a voting majority in the legislative branch, strict party discipline is not required. It was a period of particularl y weak party bonds, between 1809 and the early 183Os, which provided an impetus for Senators to weaken their ties to state legislatures and strengthen their links to the people.33 Unable to rely on a party organisation to ensure their re-election, Senators began to see direct links to the electorate as a more secure political base. Thus, it was at this time that the pattern of Senators seeking to establish a persona1 following began. Relatively weak party bonds have also contributed to the prestige of the Senate. Senators are able to form regional coalitions, across party lines, on issues of critical import to their respective regions. During periods when parties have been particularly 35 weak, as in the early 1830s, strong and stable regional coalitions have structured the pattern of voting in the senate." Thus, Senators, seen to be dealing with issues important to their respective states, gained in stature relative to those elected to the state legislatures. Over time, the recognition that regional interests could be conciliated within the structures of the federal govemment served to further strengthen the Senate's institutional position. The U.S. Senate was given powers not only equal to, but in some ways greater than, the lower hou~e.~~The Senate has powers equal to the House of Representatives as regards ordinary legislation, except that bills for the raising of revenues must originate in the ous se.'^ The Senate, however, was given some extra powers relating to the ratification of treaties and the confirmation of certain federal appointees, including Supreme Court Justices. The form of the distribution of authority between the orders of govemment and the scope of powers allocated to each order have had effects on the developrnent of the Senate. The U.S. constitution assigns to the federal govemment a substantial number of specified concurrent powers in which federai legislation, in cases of conflict, takes precedence over state la^.)^ While the constitution also left a large and unspecified residual authority with the states, the precedence of federal legislation allows the federal legislative bodies, over time, to expand their area of authority. Thus, al1 federal institutions, including the Senate, have benefited from this gradua1 accretion of authority. One area in which the Senate specifically has benefited is in its powers over treaty-making.j8 Under the U.S. constitution treaties are self-executing; that is, there is no need for further implementing legislation at the federal level, and states have no role in the legislative implementation of treaties. Thus, the constitutional provision that treaties require the consent of the Senate, by two-thirds majority, confers on Senators an influential and decisive authority.

The fact that the Senate is composed of equal representation from each state has 36 had pervasive effects on the operation of the institution and its role as a federal body. It is worthy of note that the relative populations of states have diverged since the present Senate was in~tituted.~~In 1790, the minimum percentage of the nation's population able

to elect a Senate majonty was approximately 30 percent. However, at no tirne since 1900 has the figure exceeded 20 percent, and the divergence is still widening, as the most populous states are also the fastest-growing states. This trend confers considerable advantages on the Senators from less-populous state~.~Both individuals and interest groups from less populous states have more, and better quality, contact with their Senators. These greater representational ties translate into less cornpetitive electorai contests, thus allowing Senators from these states to spend more time representing their constituents, and less time fund-raising and carnpaigning." In most elections in the 20' century, parties that did better in the less populous states have not been in the majonty in the Senate; however, equal representation has served to over-represent the minority party in the Senate, thus contributing to a countermajoritarïan result." Finally, the Senaton from the less-populous states are able to affect legislative outcornes such that these states receive greater per capita benefits from federal spending programs than a needs-based allocation would prescribe."3 Given these developments, it is fortunate for the smaller states that they had enshrined in Article V of the U.S. constitution that "no State, without its Consent, shall be deprived of its equal Suffrage in the ~enate."~This fact appears to make this one Article subject to a state unanimity rule as regards constitutional amendment, while al1 other Articles require only the agreement of three-quarten of the states? The fact that Senators' terms were set at six years, with one third of the terms expiring every two years, was to have a significant effect. The term of Senators was long relative to both the House of Representatives and the state legislatures, thus providing it with a more stable membership. As well, unlike the Articles of Confederation which had preceded it, the constitution adopted in 1789 did not allow for the recall of Senators by the state legislatures. A sitting Senator could afford to displease the members of the legistature that selected hirn, as turnover in the latter was high.* Often, as rnany as one-half of the

sitting state legislators would be tumed out at a given election. Chances were that state legislators who held a gnidge against a Senator for his position on a particular issue would be long gone by the tirne a Senator came up for election again. Further, a Senator

would, by the end of his term, be a relatively seasoned and well-known figure in

cornparison to those who would be charged with the decision as to whether he should be re-elected. Thus, the overall effect of relatively long Senatonal terms was to increase the independence of Senators from their state Iegislatures. The method of selection of Senators has both affected the operation of the Senate and been affected by social factors. As noted, the members of the Senate were originally indirectly elected by state legislatures. However, unlike delegates to the Congress of the Articles of Confederation, Senators were not constitutionally required to cast their votes

as state blocs. In addition, the salaries of Senators were to be paid out of the federal treasury, not state payrolls. The evoiution of the method of selection is illustrative of the tension between majontarianism and territorial non-majoritarianism, and demonstrates the interaction of institutional and social factors. In this section we consider early attempts by state legislatures to control their Senators; in a later section on the rise of dernocratic ideals as a social factor, we trace the changes which have resulted in an elected Senate. In the early penod of the Senate, state legislatures attempted to control the actions of their Senaton by issuing instructions to them as to how they should vote.47 This practice was well established in the Congress of the Anicles, king supported in that body by the provision for the recall of delegates at any tirne." The Convention had offered no indication as to whether it endorsed instructions for the Senate; indeed, the subject is not rnentioned in the records of the onv vent ion.^' 38 In the absence of constitutional provisions on the subject, Senators in the eariy years usually honoured instructions, especidly on highly salient issues such as constitutional amendmer~ts.~~As the legislative agenda of the federal governrnent

expanded in the 1809-29 period, state legislatures attempted to ensure their control of Senators by censuring those who defied thern, and by including the right of instruction in the constitutions of new states?

The doctrine of instruction eventually fell into disrepute, however, when it came to be used as a tool of partisanship." Legislatures began to issue instructions they knew to be distasteful to sitting Senators of opposing parties, in hopes that, rather than obey, the Senator would resign. In 1834, a new partisan majority in the Virginia legislature used this method to secure the resignation of a Senator; two years later, the opposition retumed to majority and retumed the fa~our?~The use of instructions for such purposes, and the consequent loss of popular Senators, led to the demise of instructions: Senators simply besan to refuse to either obey or resign. By 1840, forced resignations via partisan machinations had thoroughly discredited instructions, and their use effectively di sappeared. Without the legitimate backing of the recall mechanism, it is likely that the doctrine of instruction could not survive indefinitely. That States were able to sustain them for fifty years after the recall mechanism disappeared is a demonstration of the strength of state-centred sentiments in the early years of the republic. However, as we shall see, changes in society wouId soon not only overwhelm the state Iegislatures' ability to enforce their wishes, but also remove them entirely from the selection of Senators. SociaI Factors Changes in the social milieu in which the Senate operates have interacted with its institutional design to produce a distinctive path of evolution. By their nature, social forces are more diffuse, and therefore less easily related to specific institutionai effects. Thus, in this section we relate social factors to more general trends in the development of 39 U.S. federalism. We consider the following types of factors: structural, demographic. and ideological. Several structural factors have affected the overall evolution of the Senate. First, as the U.S. grew in geographical size and population, the House of Representatives and Senate diverged in size. As this difference in size became more prominent, the view of

the Senate as a small, elite chamber was enhanced. As well, the continuing small membership allowed for open and extensive debates in the Senate. while the growth in the mernbenhip of the House forced it to adopt measures to curtail debates." Again, this contributed to the ability of al1 Senators to effectively represent their constituents' views. Second, the fact that the U.S. came to be composed of a relatively large number of constituent units diluted the influence of any one state? As no one state could dominate the union, the influence of national, as opposed to state, politicians grew. Over time, the cIear pattern for upwardly mobile politicians came to be from state legislatures to the federal legislature, and, within the federal legislature, from the House to the Senate. Third, the pattern of economic development in the U.S. has been one which has enhanced national integrati~n.~~~uring the twentieth century the economy of the U.S. has become increasingly integrated. The operation on a national basis of large-scale industrial corporations stirnulated in tum the growth of national scale trade unions, transportation networks and mass media. A patchwork system of state regulation of economic activity was seen to hinder economic development. Thus, the role of federal institutions was enhanced, as public expectations legitimised an increased federal role in fields as diverse as occupational training and environmental protection. Fourth, the growth of the U.S. as a major international power affected the relative status of institutions. As foreign affairs became increasingly salient as an issue, the

Senate's special role in that policy field gave it ever greater prominence.'' The attention of the mzdia and the public on international issues has tended to lead them to focus attention on those dealing with these issues, primarily the President and Senators. 30 The demographic makeup of the United States has affected the evolution of U.S. federalism. The geographical distribution of significant minority groups in the U.S. has caused members of these groups to look to federal institutions as their defender~.~' African-Americans have represented the most significant identifiable minority in the US. now at 12.5% of the national population.59 However, in no state do African- Amencans represent a majority; thus, there is little incentive for African-Americans to look to state governments for support for their rights. As state governments, particularly in the South, were at best indifferent, and at worst hostile, to African-Americans' assertion of their rights, this minority, and others, have instead iooked to federal institutions for support. Ideological trends in the period from the 1930s to the 1970s tended to focus attention on national govemments. The building of a national welfare state and the prevalence of Keynesian economic management strategies required the federal saovernment of the U.S., like national govemments elsewhere, to take a leading role. Progressive ideas concerning the inability of state governments to deal effectively with huge corporations, and the consequent impairment of democratic processes, led some to suggest the era of federalism itself had pssed." The solution, it seemed. was increased authority for the federal government. Over the longer term, the most striking ideological change to affect the Senate has beei? the rise of democratic ideals. As noted earlier, the designers of the Senate had a variety of non-majoritarian goals in mind, some specifically anti-democratic. To further explore how the increased prominence of democratic ideas has affected the ability of the Senate to continue to embody non-majoritarian ideals, we return to the evolution of the method of selection of Senators. Whereas in 1787 the term 'dernocracy' was equated with mob rule, by the 1830s it was synonymous with ideas of political equality and popular so~erei~nt~.~' Increasingly, Madisonian ideas conceming the need for the democratic first chamber to 31 be checked by the second chamber were king replaced by the idea that democratic majori ties should rule. The national electorate itself was changed in the early 1800~~in reflection of these changed idea6' Property qualifications for the franchise, common in 1800, were abolished or relaxed, such that by the 1820s most adult white males could vote. State constitutions and laws were being amended to expand the number of offices subject to direct e~ection.~~At the same time, popular interest in the activities of the Senate was on the nse: newspaper coverage of the Senate increased, as did the number of citizen petitions subrnitted to the senate? In the l83Os, Senatorial 'canvassing' became pop~liir.65Senatorial candidates were usually already we1l-known politicians in their home states. They agreed to campaig on behalf of lesser-hown candidates for the state legislature; in retum, the prospective state legislator prornised to support the Senatorial candidate's election by the legislature. By this method, Senators both built their own popular support and undercut the influence of state legislatures. Over time, Senators began to build their own electoral base. paving the way for direct popular election of Senators. By the post-Civil War period, Senators had vinually turned the tables on state ~e~islatures.~'Senators were often influential in their parties, and were thus in a position to control political offices in their states. Meanwhile, cails for the popular election of Senators grew, and these were accommodated by state legislatures. State pnmary elections for the Senate became the nom, with state legislatures simply confirming the popular choice. By 1910,44 out of 46 states were using primary elections for their ~enators.~' Proposals for a constitutional amendment to enforce popular election of Senators began to surface in the 1880s.~~The House repeatedly passed resolutions in favour of popular election in the 1890s and 1900s. The Senate finally concurred in 19 1 1, and the Seventeenth Amendment came into force in 1913. 42 The Conternporaw Senate The passing of the Seventeenth Amendment marks symbolically the end of the Senate's role as the defender of state interests as expressed by state legislatures. The subsequent evolution of the Senate in the 20" century has confirmed the long-terrn trajectory of the Senate's development as a nationally-oriented institution. However, the contemporary Senate continues to embody non-majoritarianism in several ways, in accord with the frmers'intentions. Three examples of the influences which have continued to shape the Senate in the post-World War II era wilI serve to indicate continuity with its earlier development. First, the status of the U.S. as a superpower in the post- 1945 era has served to further enhance the position of the Senate due to its particular role in the foreign policy field. As well, the global role of the U.S. has Ied the U.S. economy to be skewed to defence production. As Senators are instrumental in making decisions on defence funding, and the geographical distribution of that funding, again their status has been strengthened.

Second, the issue agenda expanded further in the period from the 1950s to the

1970s.~~New and contentious issues such as environmental protection and abortion came to the fore, while some older issues, such as the 'war on poverty' and energy policy, became more controversial. These developrnents stimulated a rapid expansion in the number and variety of interest groups seeking to infIuence govemment policy. The result was ri further opening of the Senate to dernocratic influences via more open policy- making processes, and increased sensitivity to popular opinion. Third, the expansion of the role of national mass media in politics, especially television, further nationalised the Senate's role. The Senate's institutional features dovetailed weli with the needs of journalists: few in number, Senators are easier to cover; and long Senatorial terms mean that it is worthwhile for journalists to invest the tirne to cultivate individual Senators as news source^.'^ The more national focus and increasing popular sensitivity of the Senate do not 43 mean, however, that its role as a non-rnajoritarian body has been eradicated. The frarners'

general intention in choosing bicarneralism was to establish a second chamber on a basis different from that of the first chamber. True to the framers'general intentions, the Senate has indeed developed as an institution significantly different from the Iower

house, despite the fact that it is ele~ted.~'State-wide constituencies mean that even though Senators are subject to the changeable passions of the electorate. the constituencies to which they must respond are different from those to which members of the House must account. Thus, the legislative responses of the two chambers are often quite different, and the Senate therefore remains as a legislative check on the lower house. The Senate also retains its non-majontarian role as one component of a system of limited government. The strongly bicameral system the framers designed continues to have the consequence of producing a difficult policy-making process.7' The weakness of Party bonds that the presidential-congressionai system allows means coalitions shift according to the issue, and the coalition-building process is a time-consuming one. Some decry this effect as reducing the efficiency of the institution, as detracting from the Senate's abiiity to act as an effective legislative body. However, this line of argument is

seemingly oblivious to the fact that this was part of the intention of the designers of the instjtution. Direct eiection indeed put an end to Senators' role as representatives of state legislatures. As we have noted, over the first one hundred years of the federation a shift occurred in the conception of regional interests. A definition of state interests as king synonymous with the interests of the state legislature gave way to a definition of state interests as the summation of the interests of state-based agglomerations of voters.

It is not that direct election ended the Senators' role as defenders of their states' interests. The fact that, as noted above, Senators from less-populous states are sufficiently powerful to be able to consistently skew federal funding prograrns in ways favourable to 44 their states is a continuing testament to their defence of their constituencies. Rather, it is that the breaking of the link between state legislatures and Senators is indicative of a shift in the perception of both the Senate and the federation. The early Senate was conceived of as the representative body of the states of a federation which was only the sum of its parts; the 20" century Senate is conceived of as a national legislative body of a nation which is more than the sum of its parts. In summary, one can conclude that the contemporary U.S. Senate remains an institution which expresses non-majoritarianism. It is sufficiently distinct in composition and operation to provide an effective legislative counterbalance to the lower chamber. It is sufficiently srnail and prestigious as to ailow its members to achieve national public profiles which act as a counterbalance to the executive branch. The weak party bonds in the U.S. systern have allowed the Senate to continue to act as a locus of temtorial non- majoritarianism, as Senators have been able to represent their regional constituencies in the national government. CONCLUSION The initial design of the Senate provided for an institution which expressed non- majoritarianism in four ways. First, it was designed to be a conservative, even anti- democratic, legislative institution in the tradition of the British House of Lords. That is, it was meant to temper the excesses of rampant democracy via mixed government, and to provide an example of social hierarchy and order. Second, it was intended to operate as one element of a system of limited government. Third, it was designed to represent the interests of al1 the constituent units of the federation. Its method of selection was designed to facifitate this role. Fourth, it was designed to defend the interests of the smal ler states. Equal representation from each state ensured i ts enduring ability to perforrn this role. Thus, the Senate from the beginning has brought a non-majoritarian elernent to both the overall roles usually performed by second chambers; Le., legislative review and regional representation. 35 The end of instruction and the onset of popular election were bth, in different ways, victones for majoritarianism. It is tme that the resistance to, and eventual defeat of, the doctrine of instruction was not deliberately majoritarian. However, to the degree that the failure of instruction left the states with one-iess reliably non-majontarian lever on the federal govemment, it represented a diminution of non-majontarianism. The carnpaign for the popular election of Senators was openly majoritarian, predicated on the idea that greater 'democratic' input must be better. Only a few opponents of popular eiection were sufficientl y perceptive to see it as a step which would undermine the purpose of the Senate as a defender of the tat tes.'^ The long, gradua1 distancing of Senators from state legislatures meant that, in the end, state legislators collaborated in their own loss of influence. We have identified a number of institutional and social factors which have been important in the origins and evolution of the non-majontarian characteristics of the U.S. Senate. In regard to its origins, the factors included: a prevaïling ideological predisposition to bicameralism; a desire that the Senate express various forrns of non- majoritarianisrn; historical learning, in the form of dissatisfaction with the operation of the Congress of the Articles, and the weak second chambers in the states; short-term path dependency, in that the processes of voting in the Convention benefited the choice of the mode of selection of Senators and thereby the equal apportionment of Senators to states; and long-tenn path dependency, in that most delegates were from states that had bicarneral Iegislatures. and in that the Convention inherited the precedent of equal state votes in making its decisions. We have identified five major institutional factors which have affected the evolution of the U.S. Senate. These are: the presidential-congressional system; the distribution of powers; the composition of the Senate; the length of Senatorial terms; and the method of selection of Senators. These factors have contributed to the development of the Senate as an independent, powerful, regionall y sensitive, direct1y elected 46 legislati ve body. We have in addition identified three types of social factors which have affected the evolution of the Senate: structural, demographic, and ideological. Structural factors

include: the growth in geographical size and population of the U.S.; the relatively large number of constituent units; the integrated pattern of econornic development in the U.S.; the emergence of the U.S. as a major international power. The critical demographic factor is the geographical dispersion of significant minority groups in the U.S. Ideological trends include the prevalence through most of the 20" century of progressive ideas concerning the abilities of national govemments, and, over the longer term, the rise of democratic ideals. Together, these factors have contributed to the development of the Senate as a reIatively prestigious, directly elected, and more nationally focused institution. We have noted, however, that the contemporary Senate still operates as a non- majoritarian mechanism in the US.system of govemment. The differing constituencies of Senators and Representatives means that the Senate does act as a check on the first chamber; the strong powers of the Senate over legislation combined with weak party bonds alIows the Senate to act as an important institution for limiting govemrnent; the composition of the Senate facilitates its role as the defender of small-state interests; and the shift to popular election of Seriators has modified rather than eliminated their role as state representatives. It is only the aspiration for a role for the Senate as a symbol and embodiment of social hierarchy that has been utterly lost, the victim of a paradigm shift in attitudes to democratic govemance. NOTES

1 Elaine K. Swift, TIIe Making of an Amerïcan Senate: Recorrsritrttive Change in Cortgress, I787-184I (Ann Arbor, Michigan, U.S.A.: The University of Michigan Press, 1996), 26. Max Farrand, The Records of the Federal Convention of 1787. Vol. 1 (2nded.; New Haven, Ct., U.S.A.:Yale University Press, 1966), 193. ' ibid.. 242. 4 ibid., 509. Swift, Making of arz Arnerica~zSennre, 37. Ibid. 7 Ibid., 9. 8 Alexander Hamilton, James Madison and John Jay, Tite Federalist Papers 117881 1. Kramnick, ed. (New York: Penguin Books. 1987), 365. 9 Ibid., 370-1. 10 Swift, Making of an &nericari Senate, 10. Il Gordon S. Wood, TIte Creation of tiie Americarz Reprtblic, 1776-1787 (New York: Norton, 1969).

" Swift, Making of ari Anrerican Se~iate,IO- 1 1. 13 Frances E. Lee and Bruce 1. Oppenheimer, Sizirig Up the Senate: ï7re Uneqrtul Cotzsequences of Equal Representution (Chicago: The Uni versi ty of Chicago Press, 1999), 41-43. '" Hamilton, The Federalist Papers, 365. 15 Lee and Oppenheimer, Sizing Up the Senare, 26-37. l6 bid., 28-29 17 ibid., 27.

l8 Farrand, Tizr Records of die Federal Convention, 134.

70 Lee and Oppenheimer, Sizing Up tiie Senate, 29. " Hamilton. The Federalist Papers, 320. 7 7 -- ibid., 32 1.

'3 Farrand, Records of the Federal Convention. 45-6. 24 Ibid., 242. " Swift, Making of an Aniencan Senote. 36. 26 Lee and Oppenheimer. Sizing (Ip the Senate, 29-32. " Farrand. Records of the Federal Convention, 46. '' Lee and Oppenheimer, Sizing Up the Senate, 3 1. '9 '9 Farrand, Records of the Federal Convention, 13 7. 30 Lee and Oppenheimer, Sizing Up the Senate, 32.

31 Ibid.

3' Ibid., 39-40.

33 Swift, Making of an Anrerican Senate. 144. 24 Ibid., 172. 3 5 Meg Russell, Refonniizg the Home of lords: Lesso~zsFrorn Overseas (Oxford: Oxford University Press, 2000), 33. 36 Lindsay Rogers. nie American Senate (New York: Knopf, 19?6), 13. 57 Ronald L. Watts, "Divergence and Convergence: Canadian and U.S . Federalism," in Perspectives on Federalism: Papers /rom the First Berkeley Seminar on Federalism (Berkeley: Institute of Governmental Studies, University of California, Berkeley, 1987), 192.

j8 ibid., 193. 3 9 Lee and Oppenheimer, Siring Up the Senate, 10-1 1. " ibid., 12-15. " bid., 84.

" ibid.

" Ibid., 158-59. U Barbara Sinclair, "Coequal Partner: The U.S. Senate," in S.C. Patterson and A. Mughan, eds., Senares: Bicamera1is)it in the Coniempora~World. (Columbus Ohio. USA: Ohio State University Press, 1999)- 33.

45 Lee and Oppenheimer, Sizing Up the Senare, 12. 16 Swift, Mukirtg of art American Senate, 49.

47 ibid., 57-59. 48 Wi Il iam H. Ri ker, "The Senate and American Federatism," Atirericari Political Science Revieiv 49 (1955), 452-69. '' ibid., 456. Swift, Muhg of on Anlerican Senate, 57. Ibid., 121. j' Ibid., 164-65. 53 Ibid., 165. 54 Sinclair, "Coequd Partner, The U.S. Senate," 35. 55 Watts, "Divergence and Convergence: Canadian and US Federalism," 193-94. Ibid., 183. 57 Sinclair, "Coequal Partner: The U.S. Senate," 38. 58 Watts, "Divergence and Convergence: Canadian and US Federalism," 182. 59 Lee and Oppenheimer, Sizing Llp the Senate, 2 1.

60 Harold Laski, 'The Obsolescence of Federalism," nie New Republic XCWIl (May 3 1939), 367-69.

6' Swift. Making of an American Senate, 100-0 1.

" Ibid., 99.

" Ibid., 101. a Ibid., 121.

65 Riker, 'The Senate and American Federalism," 463. swi ft, Making of an American Sennfe, 176.

67 Riker, 'The Senate and American Federalism," 466. ibid., 467. 69 Barbara Sinclair, The Trarlsfonna~iorrof the U.S. Senare (Baltimore. Md., U.S.A.: The Johns Hopkins University Press, 1989), S.

'O Sinclair, "Coequal Partner: The US. Senate," 38. 7 1 Ibid., 55-56.

7' Ibid., 56. 7 3 Ri ker, 'The Senate and American Federalism," 468. CHAPTER THREE THE CANADIAN SENATE

INTRODUCTION The initial design of the Canadian Senate provided for an institution which

expressed non-majoritarianism in two ways. First, it was designed to be a conservative

legislative institution in the tradition of the British House of Lords. Second, it was designed to be one element of a system of protection of the interests of the smdler provinces and the Frenc h-Canadian minori ty. Thus, the Senate has, from its inception,

brought a non-majoritarian element to both the overall roles usually performed by second c hambers; i.e., legislative review and regional representation. We will investigate the factors which led the Fathers of Confederation to design a Senate with these non-majorirarian elements, and the processes via which the specific

non-majoritarian features of the Senate came to be adopted. We will identify a number of institutional and social factors which have ken important in the evolution of the non- majoritarian characteristics of the Canadian Senate. We will see how these factors have contributed to the development of the Senate as a secondary institution, perceived by the public as an illegitimate and largely irrelevant element of the Canadian system of governance. Finally, we will demonstrate that even when the contemporary Senate attempts to fulfill its legitimate role as a non-majoritarian mechanism in the Canadian system of governrnent, its efforts are undermined by the weaknesses of its original design. We will note that, although there have ken innumerable proposals for reform, there are a nurnber of factors which make agreement on an alternative design difficult to achieve. ORIGINS The design of the Canadian Senate was largely decided at the Quebec Conference of 1864. However, to put that event in its context, we shall first very briefly review the antecedent and subsequent events. Next, we consider the non-majoritarian functions the

Senate was designed to perform. Only then will we tum to the specifics of the Senate's desig as set out at the Quebec Conference. The British Nonh American colonies faced a number of challenges in the 1860s.' The Union of Upper and Lower Canada in a single political unit in 1840 had produced a series of unstable governments. The Canadian politicians who were seeking a new political solution eyed the colonies to the est, Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland, as possible political partners.

Meanwhile, the civil war in the United States presented the danger of a renewed military threat, as the relationship between the North and the United Kingdom were strained. Unsure of the ability or the inclination of the LJK to quickly corne to their aid in the case of invasion, the colonies saw in union the possibility of a common defence of the remaining North American colonies. The three MarÏtime colonies agreed to a conference in Charlottetown in September, 1864, for the purposes of discussing Mari tirne Union. The govemment of the Canadas received permission to send a delegation to the conference, at which they proposed a union of al1 the North Amencan colonies. Discussions in Charlottetown led to the Quebec Conference in October 1864. The two-week Conference produced an agreement, embodied in seventy-two resolutions, among the Canadas, Nova Scotia and New Brunswick.

Political machinations in al1 the colonies ensued in 1865-66, in attempts to gain acceptance of the union. Finally, the participants reconvened in London in December, 1866, to draft a bill based on the resolutions. The British North America @NA) Act received Royal Assent on March 29, 1867, and the new Dominion began its tife on the following July 1.' The Senate was designed to fulfill a number of non-majoritarian functions.'

Representation of the provinces was certainly one of these. John A. Macdonald noted that In order to protect local interests, and to prevent sectional jealousies, it was found requisite that the great divisions into which British North Amenca is sepanted should be represented in the Upper ous se.'

It is clear that the delegates from the Maritime provinces saw in the Senate their house of representation. They noted that their colonial constitutions were not significantly different from those of the larger colonies, and that these constitutions accorded them "equal rights and privileges" to those of the larger colonie^.^ Thus, the role of the Senate, in the smaller provinces' view, was "to be the guardian of their rights and privi ~e~es."~ Naturally, this protective role had a particular meaning for the deiegates from Lower Canada. George-Etienne Cartier, as the pnmary Francophone architect of Confederation, noted that the Senate wouid assure the ongoing protection of the French- Canadian minority.' There is no doubt that the Upper Canadian participants as well saw, in the design of the Senate, a role for it as the guardian of the interests of the French- Catholic rninority centred in Lower Canada. What is not entirely clear in relation to the origins of the Canadian Senate, however, is the degree to which the Senate was expected to be an effective voice for regional concerns in the Canadian parliamentary system. It has been noted that the Colonial Secretary at the time of Confederation appears to have believed that the Senate could be effective; he referred to the Senate as "a permanent representation and protection of sectional intere~ts."~ It is clear from the overall design of Canadian parliamentary institutions, however, that the Senate was not designed to be a rival of the Comrnons for politicai auth~rit~.~A number of factors contribute to this conclusion: appointment rather than election would inevitably undermine the SenateTsauthority; Cabinet rninisters were to be drawn preponderantly from the Commons; and the Comrnons was to be the only house of confidence. Thus, Gibbins concludes that "the Senate was not expected to be the sole or even pnmary means of temtorial representation; the federal nature of the cabinet and national party system was seen as the first line of temtonal defense."" Watts concurs, noting that "[alt the time of Confederation it was recognised that, given the importance of the cabinet, the representation of regional interests in the cabinet would be more important than representation in the senate."" MacKay gives the definitive statement of the Senate's role in relation to regional concerns: Equality of representation in the upper house for each of the three great geographical divisions.. .was a clear recognition of peculiar sectional and (in the case of Quebec) of peculiar provincial, interests, and promise of protection of these interests in the federal Parliament. But it was not anticipated that the Senate would be a first line of defence for these interests; it would be in effect a reserve line after the House of Cornmons and the cabinet."

It will thus be important to recall, when we consider the evolution of the roles of the Senate, that it appears that it was not expected to be the pnmary representative of regional concerns in the national Parliament.

A second function for the Senate was that it be a house of legislative review. It is clear that the designers saw the Senate as a reviewer, not an initiator, of legislation. Macdonald considered the proper role of the Senate to be "the controlling and regulating. but not the initiating bnn~h."'~The pre-emincnce of the Commons as initiator is signified by the fact that money bills must originate in that House. The lower house was to be firmly set as the activist legislative chamber, while the second charnber was to be, in Macdonald's oftquoted phrase, the "House which has the sober second-thought in ~e~islation."'~ The review function of the Senate should be understood in the context of the third

function of the chamber. Like its U.S. antecedent, the Canadian Senate was to be a hedge

against democracy. This sentiment was clearly evident in the cornments of the

participants in the Confederation Debates. Cartier noted, The weak point in democratic institutions is the leaving of al1 power in the hands of the popular element. The history of the past proves this is an evil. In order that institutions may be stable and work harmoniously there must be a power of resistance to oppose the democratic element.I5

This anti-democratic view was echoed by Joseph Cauchon, who argued that "[wle ought to place in the constitution.. .a Iegislative body able to protect the people against it~elf."'~The deeply conservative nature of these cornments is the more notable when

one recalls that the lower chamber itself was not to be selected on the basis of universal manhood suffrage; while the resolutions adopted at Quebec did not specify a property

qualification for electors, this was because the decision as to the arnount of qualification

was left to the provinces, not because one was not anticipated." The fourth function of the Senate also had an anti-democratic slant: the Senate was to represent the interests of property. It is in this light that the property qualification for prospective members is to be understood. That a general consensus on the need for

such a qualification existed is evidenced by the fact that the discussions in the Conferences and Debates related only to the amount of the qualification, not the principle.'8 This is unsurprising as the existing second chamber of the Canadas had a property qualification. While some delegates would have preferred an even higher minimum, the final qualification, of real property to the value of $4000, was settled upon as a compromise. The anti-dernocratic aspect of the Senate's role as the defender of property interests is encapsulated in the memorable phrase of John A. Macdonald, "the rights of the minority must be protected, and the rich are always fewer in number than the poor.v'g

As these latter two functions indicate, the Canadian Senate, like i ts U.S. predecessor, was to be modelled on the British House of Lords." In this it was to be a profoundly conservative institution. From this flowed the ideas about the need for a chamber of review, of the need to curb demoçratic excesses, and of the need for a body which would defend the interests of property. As regards the latter, the Lords' hereditary peerage wouid be replaced in the Canadi an second chamber by nembers of the propertied class. We now turn to the specifics of the Senate's design. Two critical elements stand out: its composition and rnethod of selection. The makeup of the Senate was the most contentious of issues with which the founden had to deal at the Quebec conference." Fully six days of the fourteen-day Conference were devoted to designing the new second charnber. John A. Macdonald set the parameters of the debate on the Senate on the second day of the Quebec Conference. On that occasion he said: Now as to the Constitution of the Legislature we should have two Chambers, an Upper and a Lower House. In the upper house equality in numbers should be the basis, in the lower house population should be the basis ....The mode of appointment to the Upper House - Many are in favour of election and many are in favour of appointment by the crown.. ..I am after experience in both systems in favour of returning to the old systern of nomination by the crown ....There should be a large property qualification for the Upper House which is then the representative of property.-'77

The idea that the first chamber should be constituted on the basis of population was unc~ntrovenial.~~Indeed. part of the reason for Upper Canada's pursuit of a new arrangement was to escape the Act of Union's stipulation of equal representation between Upper Canada and Lower Canada regardless of population. Thus, it was clear from the start that the first chamber would be constituted on a population basis. The debate therefore tumed to the composition of the Senate. Macdonald's general principle of 'equality in nurnbers' crystallised into resolutions that there should be three 'sections', Upper Canada, Lower Canada, and the Maritime provinces, including

Newfoundland, and that each of these three divisions should be equally represented by 24 members each." This scheme was clearly based on the existing second chamber in the Canadas, in which each partner had 24 members.

While al1 the Maritime provinces objected to this scheme, it was P.E.I. that objected rnost strenuously, pushi ng for equal representation of al 1 provinces.2S A variety of resolutions were subsequently introduced, al1 designed to increase Maritime representation; however, none was backed unanimously by al1 the Maritime delegations. Eventually, a compromise of sorts was agreed upon by excluding Newfoundland from the

Maritime provinces' allocation, and allowing that it would be granted separate Senate membership should it decide to join the federation. Under the compromise, New Brunswick and Nova Scotia each received ten seats of the 34-seat Maritime allotment, while P.E.I. received the remaining four seats.'

Why was the idea of equal representation of provinces unacceptable in the Canadian case? One rnight note that, unli ke in the U.S. case, the smaller provinces themselves were not united on the issue; perhaps had they been able to agree on an alternative and pursue it, they might have prevailed. However, this raises the question as to why they were unable to agree on an alternative- One rnight suggest that, with a

When P.E.I. initially declined to join the federation, its four seats remained with the Maritime aIlocation. When P.E.I. did join, its seats were reassigned to it. The western provinces were constituted as a fourth 24-seat region in 1915, while Newfoundland was given six seats on joining Canada, and the three temtories are now allocated one seat each. Thus. the present Senate is normally constituted of four 24-seat regions, plus the Newfoundland and temtorial seats, for a total of 105 seats. combined population oniy thiny percent of that of the an ad as,'^ most of the Atlantic provinces simply considered it unrealistic to pursue equality of representation. However, one could easily make the counter-argument that inequality in population should have made them that much more fearful of the majoritarian principle, and thus al1 the more insistent on the equality of the provinces. Dawson suggests that the most Iikely explanation for the rejection of equal provincial representation is that delegates feared it would tead to a doctrine of 'provincial rights' parallei to the doctrine of 'states'rights' that had ken a factor in the U.S. civil war. 27 Certainly, one lesson the Canadian founders drew from the U.S. experience was that centrifuga1 tendencies could be dangerous, and the differences arnong the British North Amencan colonies were thought to be even more serious than the socio-economic differences which divided the North from the South in the U.S? Lower Canada, of course, differed from the other colonies in both religion and language, while Upper Canada was cut off from the sea-trading Maritimes by a vast wildemess as yet uncrossed by rai 1 lines. A comment of Macdonald's gives a flavour of the prevailing sentiments: We must have a strong Central Government with al1 authority except what is given to the local governments in each Province, and avoid the errors of the Amencan ~onstitution.'~

Whatever the motivations for the smaller provinces' acceptance of equal representation of sections rather than provinces, the agreement was the key to the success of the Quebec Conference, and thus to the federation project. George Brown pointed out the importance of the compromise for the two Canadas: Our Lower Canada friends have agreed to give us representation by population in the Lower House, on the express condition that they shall have equality in the Upper House. On no other condition could we have advanced a step.jO

A matter related to equal representation of the sections was the question of whether the Crown should be able to increase unilaterally the membership of the Senate. The question arose due to the fear of deadlock between the chambers, a condition which had arisen between the chambers in the United Canadas. The provinces that argued for equality of representation obviously could not agree to have the Crown, in effect the govemment, given the abiiity to 'stack' the Senate in the case of intercameral

disagreement; this would negate the entire purpose of the second chamber. 3' On the other hand, no province wanted the federal legislature to be hamstrung. In the end, the Quebec Conference again followed the precedent of the second charnber of the Canadas, and offered no method for breaking deadlocks. The issue would not die, however, arising repeatedly in the Confederation ~ebates." It was the insistence of the British govemment. at the London Conference, on

the inclusion of some 'safety-valve' rnechanism that was decisive.13 Even so, it was only in the fourth draft of the bill which would become the BNA Act that the issue was finally resolved. The decision was that the Crown would have the nght to increase the membership of each section by one or two seats. for a total of three or six seats, provided that each of the three sections should be increased equally and simultaneously.* No new

appointments would be allowed in a section until the membership in that section had

fallen back below the normal number. Thus, provision was made for the breaking of legislative deadlocks while maintaining the principle of equality, and therefore assuaging the fears of the smaller provinces.

The method of selection of Senators was not a rnatter of extended debate at the Quebec Con ference. Rejected were methods of selection whic h have subsequently continued to be debated: both direct election by the people and selection by provincial political authorities were considered and disrnissed." Prince Edward Island was again the 'odd province out' in that it wris the main proponent of alternatives to appointment by the Crown. It was P.E.I. that argued for a directly elected Senate, or for either election or

With the addition of the fourth section in 1915. the totals becarne four or eight seats.

59 appointment by the provincial legislatures.35 As noted in Macdonald's initial statement concerning the Senate, quoted above, however, the delegates from the Canadas had experience with an elected second charnber and were set against this option. The Act of Union of 1840, which united the two Canadas, simply combined their dual governmental structures, but retained the same basic design.36 One feature of this design was the appointment of members of the upper chamber by the colonial governor. However, with the advent of responsible govemment in 1843, control over the appointment of mernbers of the upper chamber passed to the executive based in the lower house. When a dispute arose between the two houses, in 1849, the executive took advantage of its power of appointment to stack the Council with supporters. The result was an utterly emasculated upper chamber, and subsequent calls for its reform. Consequently, an elected second charnber had been created in the Canadas in 1856.~'The charnber had electoral terms of eight years, with one-quarter of the membership retiring every two years. The Council quickly began to assert itsel f Iegislatively. In addition, it began to attract the wealthier and more ambitious politicians.

By the early 1860s, it was becoming a rival for the lower house, and a considerable source of discornfort to the government. As a consequence, the Canadian politicians who were to be pivotal in the design of the Senate, and who had previously favoured an elected second chamber, turned firmly against the idea. Thus it was that election was effectively mled out fr~mthe outset. As the other options put forward by P.E.I. drew no significant support, appointment by the Crown was accepted. It cannot be said that the designers of the Senate had illusions about what appointment by the Crown meant in practice. In the Confederation Debates the opponents of the proposa1 poured scom on the fact that the govemment would be free to pack the Senate with partisans.38 The only mitigation that may be offered is that the founders did not fully appreciate the degree to which the pst-confederation lower chamber and executive would differ from the situation pre-confederation.3g We consider that deveiopment below.

As the method of selection of Senators was to corne to be seen as perhaps the most serious flaw in the Senate's design, it is worth noting the causes of this defect. First, direct election was dismissed by the delegates of the Canadas. Second, it has ken suggested that, for those who favoured a strong central government, the idea of having the power of appointment rest at the federd level was just one more way of accomplishing this ends4' Third, it is argued that the concem of al1 delegates to avoid what they perceived as the failures of the U.S. system gave them a bias against any measure that might create a weak central government. Fourth, it is argued chat the provinces were willing to acquiesce to federal appointment as they did not see the Senate as the primary site for the defence of their interests, but rather as secondary to their representatives in Cabinet.

In summary, the designers of the Senate appear to have had multiple and overlapping anti-democratic and non-majoritarian democratic rotes in mind for the Senate. The injection of a temtorial non-majoritarian aspect into the federal Parliament was certainly one of these, but the Senate was not meant to be the sole, or perhaps even the pnmary, institutionalisation of this principle. The compromises on the specifics of the Senate's design were crucial to the success of the federation project. However, the final design that emerged was heavily influenced by both path dependency and historical learning. The functions and composition of the Senate owed much to its immediate predecessors in the colonies, while its method of seiection was in part a result of the Canadian delegates' experience with an elected second chamber. EVOLUTION The Senate that ernerged from the Charlottetown, Quebec, and London Conferences was a political compromise which represented a balance between the large and srnall provinces, between Upper and Lower Canada, and between those prefemng a strong national government and those wishing to protect minority autonomy. We now consider both the institutional and social influences that have affected the Senatek subsequent development. Institutional Factors In this section we will consider the effects of the following features of the Canadian institutiond structure: the parliamentary system, the mett:od of selection of Senators, and the distribution of powers. The single most significant institutional factor in the development of the Canadian Senate is the parliamentary system of government. While the logic of the presidential- congressional system is the dispersal of power, the logic of the parliamentary system is the concentration of power. The executive branch, rather than king separated from the

legislative branch, is fused with it. As the executive is only responsible to the first chamber, however, the second charnber is, almost of necessity, also a secorzdary chamber. The need to maintain a parliamentary majority in the first chamber puts a premium on pany discipline. As noted above. however, the experience of the founders from the Canadas may not have prepared thern for the degree to which this would affect the operation of the second chamber. In the pre-confederation period, legislatures were still the masters of govemments, and executives often Iasted only rn~nths.~'In the unstable system of the United Canadas, this was particularly t~ue.~'However, these circumstances changed radically post-confederation. Party ties solidified, leading to stable and long-lasting governments: Macdonald's Conservatives reigned, except for a four-year interregnum. for the first thirty years after Confederation. In this climate, the Prime Minister and the Cabinet quickly came to dominate the legislature. In particular, the power of the office of Prime Minister itself increased in relationship to the rest of the Cabinet. The lengthy ternis of one party rule meant the Senate became, at times, the almost total preserve of a single Even though the appointed membership was regionally balanced, single pariy majorities and the primacy of party affiliation meant that the Senate never really took on its regional representation role. Thus, very quickly, the Senate

developed in ways not foreseen by the founders. Party discipline has also had systemic effects on the Senate's legislative review role. WhiIe the Senate has been generally less partisan than the Commons, the degree to which party affiliation has influenced the Senate's work is clear from the legislative record. MacKay believed the Senate "justified its existence as a checking chamber only when the majonty of its memben were of the opposite party to the majonty in the

Commons," in the penod prior to 1926.~As we note below, pûnisanship continues to be an important factor affecting the Senate's operation. The parliamentary form of government is also implicated in another way in the emasculation of the Senate. Because parliamentarism was also in place at the provincial level. the pneral pattern of growing executive dominance of legislatures provided alternative spokespersons for regional interests. Had there been no alternative voices, perhaps the Senate would have, of necessity, developed a stronger presence. However, with strong provincial executives available and eager to position themselves as the legitimate voices of their provinces, the apparent need for strong regional representation in the Senate dec~ined.'~ A second factor in the development of the Senate is its method of selection. As noted above. the power of the office of the Prime Minister increased quickly post- Confederation. As a result, the Senate became the site for the Prime Minister's personal patronage.& The effect was that the regional Cabinet representatives' influence over Senate appointments declined, and the Senate's role as a regional voice was impaired.

Even had Cabinet rnernbers had more input, however, it is questionable whether centrally appointed regional representatives could have maintained legitimacy. The perception sorew that a centrally appointed membership's iask is to represent the centre to the region, not the reverse. Ideological changes have also interacted with the method of selection to undermine the Senate's legitimacy; we consider this effect below, as a social factor. It has been suggested that the method of selection has had a major impact on another of the functions originally envisaged for the Senate: its representation of the interests of property. Campbell showed that the appointment process was skewed toward the selection of candidates with extensive political and business experience, and who resided in the more populous areas of their provinces.47 He argues that the rnethod of selection is at fault as Senators differ significantly in these respects from elected rnernbers of the House of Commons. He concludes that because the membership of the Senate is skewed in this way, it acts as a lobby on behalf of business interests within Parliament. Finally, the distribution of powers in the Canadian federal system has affected the role of the Senate. The provision in the constitution of two exclusive lists of powers. for the federal and provincial govemments respectively, and limited concurrent areas of jurisdiction, has contributed to thc constitutional strength of the provincial govemments. This has resulted in a relatively decentralised federation, and thus less of a focus on national institutions, including the Senate. Convenely, the substantial constitutional powers of the Senate in relation to the House of Commons have not generalty led to an assertive Senate. The Canadian Senate has powers formally equal to those of the House of Commons, except that money bills, those appropriating public revenue or imposing taxes, must originate in the ~ornmons.'~

The Senate c3n amend money bills, as long as it does not increase expenditures. The Senate has the constitutional nght to arnend or veto any other bill, except for constitutional bills relating to its own status. However, the perceived lack of legitimacy

of the Senate has impaired its ability to use the powers allocated to it. For instance, the legislative veto, used frequently pior to the 1940s, fell into virtual abeyancea9until the

1990s. and has only been used three times since 199 1 Social Factors In this section we relate social factors to more general trends in the development of Canadian federalism. We consider the following types of factors: ideological; dernographic; and structural. If parliamentarism is the ovemding institutional factor affecting the Canadian Senate, certainly ideological change, in the fom of the nse of democratic ideals, is the oveniding social factor. The method of selection of the Senate has been crippling to its legitimacy, and thus destructive to the institution as a whole. As noted above, the designers of the Senate had a variety of non-majoritarian goals in mind, some specifically non-democratic. in addition, they rejected election as a method of selection due to unpleasant earlier experience with elected second chambers. Despite the fact that appointment by the Prime Minister, with a11 its connotations of patronage. was ridiculed in the Confederation Debates, it was pursued nonetheless. That glaring weakness has only become more incapacitating over time, as the growth of dernomatic ideals left the

Senate increasingly out of step with the times. As MacKay notes, In 1867 an upper house whose members were appointed for life was not contrary to the prevailing climate of opinion. Democracy had not yet amved and was, indeed, distrusted in many quarters ....But the political cli mate has changed; democracy has become the accepted political faith. In a democratic age an appointed upper house labours under the handicap that it has no political foundation."

Although the method of selection of the Senate has not changed, the Senate has made sorne accommodations to democratic pressures. As a result of the judicial decision in the 'Persons' case of 1930, women were pemitted to become senators." By 1999, women constituted thirty percent of the Senate rnernber~hi~.'~in response to increased criticisrn of the institution in the 1960s. a mandatory retirement age of 75 was instituted in 1965." In the 1960s and early 1970s, in an attempt to make itself more relevant. the Senate improved its committee structure. This led to a period of committee activism in the field of social inve~tigation.~~Senate committees remain its most effective feature; their success. as compared to Commons committees, is atuibuted to the experience of the Senators, a relatively low level of partisanship. a low media profile. and a relatively relaxed time schedule which permi ts thorough in~esti~ations.~' Even taken together, however, these modest changes pale in comparison with the scale of reforms that have been proposed for the Senate: we discuss these below. Demography has had a more general effect on the development of the Senate. The concentration of Canada's most significant rninonty group, francophones. in one province has had a strongly decentralising effect on Canadian federalism. The fact that francophones constitute a majority in the province means that they look to Quebec City rather than Ottawa to defend their interests. In response. the provincial govemment of Quebec habeen a diligent defender of provincial jurisdiction. This has provided a demonstration effect for other provincial govemments to press for greater autonomy. This reinforcement of cleavages dong provincial boundaries has meant that the role of the federal govemment, and thus the Senate, has been limited. Several structural factors have also affected the overall evolution of the Senate. First. the pattern of economic development in Canada has been one which has detracted from national integrati~n.~'The Canadian economy has remained largely a series of regional economies. For most of its history, these have ken highly localised resource- based economies. with expon orientations. Particularly since World War II. the trading pattern has becorne increasingly North-South, to and from the U.S.. rather than East-

West, among provinces. The result has been that regionally differentiated economic interest groups tend to focus on, and thereby bolster, the provincial govemments rather than the federal government. This econornic regionalism has ken exacerbated by the constitutional distribution of jurisdicti~n.~~The areas which have been of growing importance, whether social or economic, have coincidentally failen under provincial junsdiction. As a result, the provincial govemments rather than the federal govemment have been in the ascendancy in Canada. Thus, the tendency for provincial ly-based Premiers, rather lhan federal ly-

based Senators, to be the spokespersons for regional interests has been intensified.

A second structural factor is the fact that Canada is composed of a retatively small number of constituent unitsSs9Even though the original four provincial units have, through territorial expansion, become ten provinces and three temtories, the relative influence of the provinces in relation to the federal govemment is great. When combined with executive dominance, this has led to a pattem of interstate federalism, featuring negotiation of regional accommodations arnong the executives of the federal and

provincial governments. As such, this pattern excludes Senaton from perfoming an intrastate federalist role, which members of second chambers carry out in some other

federations. Further, the fact that two provinces together, Ontario and Quebec, have always comprised more than fifty percent of the total national population means the provincial govemments of these provinces have been substantial rivals to the federal govemment for influence. Just one indicator of the fact that the provincial political sphere rivals the federal is the pattem of political careers in Canada. It has generally been segregated, with many of the most ambitious politicians pursuing their entire careers at the provincial Ievel. This sense of two competing spheres thus lessens the movement of respected provincial poli ticians into the Senate, where they might continue as spokespersons for their regions within the national govemment. The Contemwrary Senate If our analysis so far suggests a generally moribund institution, this picture is challenged by the activity in the Senate in the 1984-93 period. Franks credits the activism of the Senate in this period to two factors.60 Fint, although it had occurred previously that there were differing majonties in the first and second chambers, rarely had the differences been so overwhelming. After twenty years of almost unintempted Liberal -oovernments, in 1984 seventy-five percent of the Senate's members were Libenls. Meanwhi le. the Progressive Conservatives in 1984 won the Iargest Commons majority in Canadian history. Second, the Liberals appointed as opposition leader in the Senate a former senior cabinet minister renowned for poli tical cunning and partisanshi p. Thus, the stage was set for "a series of confrontations between the two Houses the like of which had never been seen before? On a variety of bills, the Senate acted as an alternative opposition.6' It delayed government borrowing bills, and bills relating to transportation industry deregulation, copyright, and immigration; and it proposed extensive arnendments to controversial dnig patent legislation. It was in 1988 that, according to Franks, the "Senate achieved its sureatest importance in history" when it refused to pass legislation relating to a highly controvenial Free Trade Agreement with the United states? Trade arrangements with the U.S. had been a perennial issue in Canadian politics since before Confederation. Prior to the 1984 election, the Progressive Conservative party leader had denied having plans for pursuing free trade with the U.S. In office, however, the Conservatives negotiated a Free Trade Agreement, and had it passed through the Comrnons. The Liberal dominated Senate, however, arguing that the government had no mandate for what was viewed as an irreversible step, insisted that the government, nearing the end of its mandate, cal1 a federal election on the issue. In a rare triumph for non-majoritarianism in the Canadian Parliament, the government was effectively forced to comply. When voters re-elected the government, the Senate passed the Free Trade legislation, but the confrontations continued on other bills. The Senate delayed a supply bill and a bill conceming controversial changes to unemployment insurance. However, by retirement and attrition, the Liberal majority in the Senate was king whittled away. When, in 1990, the governrnent submitted legislation to the Senate to establish a highly unpopular new Goods and Services Tax, and the Senate balked, the Prime Minister launched a constitutional arrow that had remained in the quiver for 123 years. The provision for breaking deadlocks between the houses, insisted upon by the British government in 1867, was finally utilised. The provision allowed the Prime Minister to supplement the normal complement of the Senate by appointing one or two Senators from each region. With the addition of two Senators from each of the four existing regions, the Progressive Conservatives were able to achieve a rnajority in the Senate for the first time since they took control of the Commons in 1984. The govemment still lost some votes even after 'stacking' the Senate; a bill on abortion and another on the merger of two funding agencies were defeated when Senators on the government side refused to support the ~e~islation.~With the defeat of the governing party at the polls in 1993, this particuIar period of Senate activism was at an end. Franks describes the Senate in the 1984-1993 penod as "the real focus of opposition to the govemment.'"5 He notes that On many crucial issues, both debate and committee investigation in the upper chamber were freer, more extensive, and more interesting than in the lower house. The Senate fulfilled its role as a chamber of sober second thought. On the other hand ...its partisanship and the method of appointing Senators.. ..prevented its very good work from receiving the attention and suppon it deserved.16 With the 1993 election of a Liberal majority in the Cornmons, the Senate largely reverted to its tradition of less visible and less ovenly partisan beha~iour.~'Franks considers the primary reason for this is that the Consemative Senate rnajority found itself in ideological agreement with the policies of the new govemment. However, the Senate seerns to have retained some of its assertiveness. The government was forced to back down on bills relating to constituency redistribution and the privatisation of the country's Iargest airport, and a backlog of bills remained unpassed by the Senate when Parliament dissolved for the 1997 federal e~ection.~~In the Spring of 2000, the govemment's high profile 'Clarity Bill', setting out the process the federal government would follow in regard to any future referendum on Quebec's future in the federation, passed the Commons. However, the Senate delayed the bill, registering its disapproval of the fact that the bill provided no formal role for the Senate in the process. In the weeks prior to the final vote on the bi Il, the Prime Minister appointed six new Senators; accordingly, the Senate finaliy passed the bill, on the last day of the session.

While the period of relative activism in the 1984-93 period is attributed mainly to partisanship, it may be wrong to dismiss too hastily non-rnajoritarian motivations professed by some of the Senators involved." Pointing to the strict mles of party discipline in the Commons, and rule changes in that House which have progressively Iimited debate, Senators defended their activism as a method of providing a check on the governrnent. Reasserting a non-majoritarian position, these Senators argued that parliamentary government is about more than allowing majorities to have their way; it is also about, to some extent, accomrnodating minorities. Proponents of this view argue that, had the government recognised that the Senate's representation of differing views was legitimate and made some accommodation for those views, it might have avoided its electoral rout of 1993, thereby serving better both democracy and itself. For our purposes, what is important is that, whatever the degree of the original intent, the Canadian Senate has in generai not developed as a mechanism of temtorial non-majontarianism. As Watts notes, "Canada does less than any other [federation] to use the second chamber as a body for ensuring effective participation for distinctive regional and minority interests in the formation of fedenl policies and de ci si on^."^^ While a plethora of Senate refonn schemes have proposed ways to improve the Senate's representation of the regions in the fedenl parliament, none has yet survived to remedy this deficiency. Neither has the Canadian Senate developed as a house which routinely brings a non-majoritaïan perspective to legislative review. Many careful observers of the Senate

over its history have realised that it does useful work in improving the technical aspects of legislation. However, many of those same observers have concluded that, due to the high level of partisanship which infuses both the Commons and its cornmittees, there is a need for a more consensual body than the present Senate to consider federal legislation.7' It must be noted that sorne believe the Senate has retained its anti-democratic roIe as the defender of propertied interests. Campbell argues that the Senate's current primary role has developed from its 'oligarchie' role as the defender of the interests of property.7' This function, which he terms 'business review', now, he argues, involves protecting the interests of major business and financial concems. In summary, then, the Canadian Senate stands out as a second chamber that has largely lost its non-majoritarian roles. Despite its nominally strong powers, its method of selection undermines its ability to effectively fulfill either a territorial non-majoritatian, regional representation role, or a non-temtorial non-rnajoritarian, legislative review role.

Its lack of an electoral base means that, even when it does work which would otherwise be considered usefu1, or takes stands that would otherwise be considered popular, its actions are regarded as illegitimate in the eyes of the public. Reform?

No review of the Canadian Senate would be complete without some reference to schemes for its refom. Proposals for reform of the Senate date almost from the inception of the institution: an interprovincial conference in 1887 called for changes? Since that time the reform proposals in regard to the Senate's functions, powers, composition, and

method of selection have been innumerable. A comprehensive elucidation of these proposals is well beyond the scope of this study; however, a few surnmary comments as to the way these proposals relate to territorial non-majoritarianism are warranted. Since the 1970s, reform proposals have had as an important motivation an increase in the tenitorid non-majoritarian aspect of the Senate's operation. In the late 1970s, many proposals suggested a new method of selection for the Senate: Senators would be appointed, and instructed, delegates of the provincial govemrnents." Taking the West German second chamber, the c und es rat,* as their model, the general thmst of these schemes would have ken to make the passage of federal legislation subject to the consent of provincial governments. Some criticised these proposals on the grounds that such a body would prevent the federai governrnent from pursuing cohesive country-wide policies; however, defenders pointed out that, in the West Gerrnan case, the Bundesrat has not been wholly decentralising, but rather has also had integrative effects. In the 1980s, proposals based on the Bundesrat model fell out of fashion, and the focus shifted to proposals for a Senate whose members would be directly elected? The democratic appearance of this rnethod of selection has meant that such proposals have gained in popularity. The agenda-setting variant of these schemes in the 1990s was the so-called 'Triple-E' Senate: elected directly, equal in representation from each province, and effective in its powers. Proponents of this rnodel believe such a Senate would be able

For a detailed description of the Bundesrat, see Chapter Five.

72 to provide greater influence in the national parliament for the less-populous provinces. The legitirnacy that direct election would confer on Senators would, in itself, they argue, radicalty transfonn the second chamber. However, experience in Australia with a close facsimile of the Triple-E Senate appears not to bear out the Triple-E proponents' belief that such a body would strongly institutionalise rerrïforial non-majoritarianism.' While our principal aim is to explain the factors involved in the evolution of second chambers, in the Canadian case, especially in view of the plethora of reform proposals, it seems the more pressing need is to explain the relative lack of evolution. Overall, the reason is that while virtually al1 agree that the present Senate is dysfunctional, it has simply been impossible to achieve agreement on an alternative design. Several factors have ken cited as contributing to this fact. First, the Prime Minister and the government have an interest in maintaining the

Senate as it is. Any reform of the Senate will inevitably be designed to make it more relevant; from the government's point of view, this would make governance more difficuIt. As well, the Senate is useful to the Prime Minister for political purposes; his power of appointment is used for reward, or promise thereof, and occasionally for the purpose of bringing a regional representative into cabinet? Second, competing models of reform are often reflective of fundamental differences in conceptions of the Canadian federation. It is clear, for instance, that the western Canadians who are the most vociferous proponents of the Triple-E mode1 hold to both an 'equality of the provinces' view, and a view of provinces as bounded aggregations of individual voters. Federalists in Quebec, however, as a nile reject the general proposition that provinces should be considered 'equal', holding instead to the

'duality' principle: the idea that Quebec is distinct as it is the principal home of one of the

For a detailed description of the operation of the Australian Senate, see Chapter Four.

73 two founding peoples of Canada. They have thus preferred a Senate on the Bundesrdt model, which would place the government of Quebec, as the most legitimate representative of the collective riphts of the French-speaking minority, in a position to perform its special mission to protect and promote French language and culture. As a result, competing proposals for Senate reform are fraught with heavy syrnbolic significance, and therefore very difficult to reconcile. Third, the amending formula included in the Canadian Constitution in 1982 makes institutional reform difficult to achieve." While sorne of what reformers wish to

accomplish could be achieved non-constitutionally, there is reluctance on the part of the federal government to make any changes which confer greater legitimacy on the Senate without a comprehensive, and constitutionally mandated, agreement on its powers. Fourth, those who see the present Senate as a pro-business institution suggest that

business interests have a stake in the Senate staying as it is? Any democratising change could only reduce business influence. CONCLUSION The initial design of the Senate provided for an institution which expressed non-

rnajoritarianism in two ways. First, it was designed to be one element of a system of protection of the interests of the smaller provinces and the French-Canadian minority. In the parliamentary tradition, however, the prirnary repository for protection of these

interests was situated in the executive responsible to the House of Commons. Second, it was designed to be a conservative, even anti-democratic, legislative institution in the

tradition of the British House of Lords. That is, it was meant to be a chamber of legislative review, not initiation, and to protect the interests of property from any democratic excesses perpetrated by the House of Commons. Thus, the Senate from the beginning has brought a non-majon tarian element, tempered by parliarnentary tradition, to both the overall roles usually performed by second chambers; Le., regional representation and legislative review. We have identified a number of institutional and social factors which have been important in the ongins and evolution of the non-rnajoritaian characteristics of the Canadian Senate. In regard to its ongins, the factors included: a prevailing ideological predisposition to conservatism; a desire that the Senate express various forms of non- majoritarïanism; historical learning, in the form of dissatisfaction with the operation of the elected second chamber in the Canadas; and path dependency, in that the designers were from colonies that had bicameral Iegislatures, and in that they transferred many of the attributes of those second charnbers, such as the number of representatives from each section and property qualifications for membership, to the new Senate. We have identified three major institutional factors which have affected the evotution of the Canadian Senate. These are: the parliamentary systern, especially in regard to the influence of party affiliation and executive dominance; the method of seIection of Senators; and the distribution of powers. These factors have contnbuted to the development of the Senate as secondary institution, perceived by the public as an illegitimate and largely irrelevant legislative body. We have in addition identified three types of social factors which have affected the evolution of the Senate: ideological, demographic, and structural. The critical ideological change has been the rise of democratic ideals. The most important dernographic factor is the geographical concentration of the most significant minority group. Structural factors include: the relatively small number of constituent units; and the reyoionrill y fragmen ted pattern of economic development. Together, these factors have contributed to the marginalisation of the Senate in a relatively decentralised system of governance in Canada. We have noted, however, that the contemporary Senate has ken more assertive than had been customary. There is no doubt that this activism has had pnmarily partisan motivations. However, there is also a sense in which Senators see themselves as retaining an important function in bringing a non-majoritarian perspective to their legislative review role, especially as they perceive an ever-decreasing latitude for genuine debate in the Commons. We have briefly discussed the changing fashions in Senate reforrn proposais, including the currently prevalent Triple-E mode], We have also demonstrated, however, that there are a number of factors which make agreement on an alternative design difficult to achieve. The Canadian Senate remains unique in two respects. First, it is the only second charnber to use regional agglomerations of constituent units as a basis for representation. Second, it is the only federal second chamber to utilise appointment by the federal authorities exclusively as its method of selection. Unfortunately, these distinctions are at the heart of the continuing criticisms of the Senrite. The inability of the Senate to perform its regional representation role is regularly linked to its composition: equal representation of al1 provinces is insisted upon by many who would reinvigorate this role of the Senate. Meanwhile, the method of seiection has utterly destroyed the legitimacy of the Senate in the eyes of the public, such that, even when it does good work in its legislative review roie, it receives little credit. Sadly, the Canadian Senate has ken a victim of a poor initial design, and a political system which has so far prevented its evolution to a better one. NOTES

1 Robert A. MacKay, TIte Unrefonned Seriate of Canada (Rev. ed.; Toronto: McCIelland and Stewart, 1963),32-36. Docrtrrien ts on the Confederation of British Nonh America: A Compilation Based on Sir Joseph Pope 's COIfederarion Docurnen ts Srrpplenlented by Otlr er Oficial Mate rial. G.P. Browne, ed. (Carleton Library No. 40; Toronto: McCleiland and Stewart, 1969), xvii-xviii. 3 Mac Kay, Uwefomed Senate, 47-50. 4 Province of Canada. L.egislature, Parliarnentary Debates on the Srtbject of the Confederation of the British North American Provinces (Quebec: Hunter, Rose & Co., 1865)- 35. Browne, Docitments on the Confederation of British Nottli America, 138.

7 Confederatiori Debates, 57 1. Roger Gi bbins. Regiona fisin: Territorial Politics in Canada and the United States (Toronto: Butterworth, 1982), 60. "id.

'O fbid. 11 Ronald L. Watts, 'The Federative Superstructure," in R.L. Watts and D.M. Brown, eds., Optiorisfor a New Canada (Toronto: University of Toronto Press, 199 1 ), 320.

" Mac Kay , Uri refonmd Senate, 49-50. 13 Corifederation Debates, 35. '' Ibid. l5 ibid., 571. 16 MacKay, Urtrefonned Seriate, 47.

" ibid., 48. l8 Ibid.. 48. 19 ibid., 47-48.

'O Gi bbins. Regionalism, 59. " MacKay. Unrefonned Senate, 36-37. 7 7 '-Ibid., 37.

'3 Ibid., 36.

" ibid., 37. 3 Ibid., 37-38.

" Ibid., 34. 17 MacGregor Dawson, rite Goventment of Canada (4h ed.; Toronto, University of Toronto Press, 1963), 33.

" MacKay, Urirefonned Senate, 35.

I9 1bid. 30 Confederatiort Debates, 88. 3 1 Mac Kay, Unrefonned Senate, 39.

" Ibid., 39-42. 33 Mollie Dunsmuir, Tlte Senate: Appointments Under Section 26 of the Constirutio~lAct, 1867 (Ottawa: Library of Parliament, 1990), 4-8. 34 Donald V. Smiley and Ronald L. Watts, Intrustare Federalisni in Canada (Toronto: University of Toronto Press, 1985). 1 18. 3 5 MacKay, Unreformed Senate, 42.

36 Ibid., 26-29. 37 fiid., 30-32. j8 Ibid., 44-45. '' Ibid., 46. 'O Ibid., 42-43. 4 I Eugene Forsey, 'The Canadian Senate," The Parliun~entarian63 (L982). 27 1. '' Mac Kay, Unrefonned Senate, 46. " Ibid. 44 Ibid., 156. 45 Gibbins, Regionalisnz, 6 1. 46 Mac Kay , Uwefomied Senate, 46. 47 Colin Campbel 1, 77ze Cmadian Sertafe: A Lobby From Within (Toronto: Macmillan, 1978), 62. 4 8 C.E.S. Franks, "Not Dead Yet, But Should It Be Resurrected? The Canadian Senate," in S.C. Patterson and A. Mughan, eds., Senates: Bicameralism in tlie Conten~porary World (Columbus Ohio, USA: Ohio State University Press, 1999), 123. 49 Forsey, 'The Canadian Senate," 272.

'O Meg Russell, Reforming the House of lords: Lessons FmOverseas (Oxford: Oxford University Press, 3ûûû), 154. " Dawson, nie Goventment of Canada. 306.

j3 Russell, Refomiing the House of Lords, 101. 54 Campbel 1, 77te Canadian Senate, 103. 55 Ibid., 102-4.

56 C.E.S. Franks, ï%eParliametir of Canada (Toronto: University of Toronto Press, 1987), 189-90. 5 7 Ronald L. Watts, "Divergence and Convergence: Canadian and U.S. Fedenlism," in Perspecr ives on Federalisni: Papers frotn the Firsr Berkeley Seminar on Federalism (Berkeley: Institute of Govemmental Studies, University of California, Berkeley, 1987), 183.

58 Watts, "Di vergence and Convergence: Canadian and U.S. Federdism," 184.

59 Watts. "Di vergence and Convergence: Canadian and U.S . Fedenlism," 193-94. 60 Franks, "Not Dead Yet, But Should It Be Resurrected? The Canadian Senate," 124.

6' Ibid.

6' Ibid., 12440. 63 ibid., 129. Ibid., 136-39.

65 ibid., 139.

66 Ibid., 13940.

67 Ibid., 145. Ibid., 14 1-44.

69 Ibid., 136, 147-49.

70 Watts, 'The Federative Superstructure," 324. 7 1 Smiley and Watts, Inrrasrare Federalism in Canada, L 36-37.

7' Campbell, The Canadimi Senare, 146-47. 73 Garth Stevenson. UnfidjTiled Utiiotz: Canadion Federaiistn and Narional Utiity (3rded.; Toronto: Gage Educational Publishing, 1989)- 23 1. 74 Watts, 'The Federative Superstructure," 325.

75 Ibid.

76 Fran ks, The Parliatnenr of Canada, 194. 77 Eugene Forsey, 'The Canadian Senate," 276. 78 Campbell, TIte Canadion Senore, 3 1. CHAPTER FOUR THE AUSTRALIAN SENATE

INTRODUCTION The initial design of the Austrdian Senate provided for an institution which expressed non-majoritarianism in three ways. First, the Senate was meant to have a role as the protector of the interests of all the constituent states. It was one of a senes of elernents in the Austraiian systern of govemance included for this purpose. Second, it was intended to defend the interests of the Iess-populous states. Thus, there were two aspects to its role as an element of temtonal non-majoritarianisrn. Third, the Senate was to have a role in legislative review. As the first federal second chamber that, from its establishment, was directly elected, it was designed to be very nearly the legislative equal of the first chamber. We will investigate the factors which led the founders of the Australian federation to design a Senate with these non-majoritarian elernents, and the processes via which the specific non-majoritarian features of the Senate came to be adopted. We will identify a number of institutional and social factors which have been important in the evolution of the roles of the Australian Senate. We will see how these factors have contributed to the development of the Senate as a relatively insignificant body for the protection of the interests of the states, but as a very important institution in the field of legislative review. Finally, we wiIl demonstrate that the contemporary Senate increasingly operates as a non-territorial non-majoritarian mechanism in the Australian systern of government. We will note that minor parties and independent members of the Senate are successfully using the powerful institutional position of the Senate to bnng an element of non- majoritarian democracy into an otherwise majontarian parliamentary system. ORIGWS The pivotal events in the Australian process of federation took place over the

decade 1890-1900. It will be useful to lay out the timeline of this process before we look at individual events. The initial Australasian Federation Conference was held in Melbourne in February, 1890.' Leading politicians from the six Australian colonies and New Zealand agreed on the desirability of union, and committed themselves to persuading their governments to send delegates to a convention which would consider a plan for a federal constitution. Consequently, when delegates met for the National Austraiasian

Convention in Sydney, beginning in March, 189 1, the question was not whether the colonies should federate but how they should go about doing so. The Conference delegates focused on devising a draft constitution on which they could agree; this they did, and the draft then went back to their respective Iegislatures for examination and approval. At this point, however, the largely elite-driven federation movement stalled, a victim of both public and legislative indifference.'

Economic depression in the mid-1890s renewed interest in federation, as it held the promise of intercolonial free tnde.-' Still, New Zealand absented itself when the Australasian Federal Convention met, in three sessions, in Adelaide, Sydney and Me1 bourne in 1897 and early 1898. The delegates worked to modify the draft produced in 189 1, eventually producing the Commonwealth of Australia Constitution Bill. This Bill was endorsed by the voters of each Australian colony in referenda held in 1898, 1899 and 1900. Passed by the British Parliament and given Royal Assent in 1900, it took effect as the AustraIian Constitution on January 1, L90L.

The specific configuration of the Australian Senate must be understood within the overall context of the framers' intentions for their federal system. There can be little doubt that the Australian founders intended to create a federation in which the States would have a substantial role. The evidence indicates the Australian founders "wanted a 82 union, but a very Iimited union which, while establishing an Austdian common markzt, would preserve the broad autonomy of the states? The founders considered, but rejected, the Canadian model for combining parliamentarism and federaiism, considering i t too centra~isin~.'They wanted a central government, or Commonwealth in Australian teminology, with very limited functions; they found their mode1 in the United ta tes.^

Indeed, it was the U.S. federation which "dominated their federal thinking."' Thus, they opted for the US. model wherever possible: they adopted equal State representation in the Senate; they divided powers between orders of govemment in the U.S. manner; and they embraced judicial review. So limited was the power the founden intended to gant to the central govemment that some delegates expected the Commonwealth to have exhausted its legislative jurisdiction within 30 years, and thereafter be restricted to only amending laws it had previously enacted! The fiscal imbalance that the founden instituted, in favour of the federal govemment, for instance, shouid be understood in this context: they fully expected the federal surplus to be retumed to the states as they regarded the Commonwealth as merely the revenue collection agency of the states. Craven summarises the thinking of the founders in this way: Put simply, they envisaged a federation in which the balance of power and responsi bility would lie decidedly with the States ....[ Tlhere can be no doubt that to the extent that there was to be a dominant partner in the federation, that artner was to be the colfective States, rather than the Commonwealth.l'

In this context, there can be no doubt that the Senate was intended to be, in some fashion, the protector of the States. Debate over this aspect of the Senate's roie centres on two questions: first, the degree to which the Senate was to be the protector of the rights of states; second, whether the Senate was to be primarily the protector of the small states. The minimalist view of the Senate as the defender of states' rights is offered by ~alli~an.'~In this view, to the extent that the states were to be protected, that protection was to be found in the federal division of powers, the retention of state govemments, and the vigilance of the High Court. Support for this view is found in statements of delegates to the Conventions. Henry Higgins, a Victoria delegate in 1897, asserted that the "truth is that the true protection for the small states lies in the limitation of the power given to the Federal ~arliarnent."" Alfred Deakin. also from Victoria, noted in Adelaide in 1897 that "State rights cannot be put in ...j eopardy; they are enshrined and preserved under the

Constitution and protected by the toms to be established under that ~onstitution."" This argument is bolstered in that the debates both in 1891 and 1897-8 demonstrate that some delegates well understood that party loyalties would soon ovewhelm state loyalties. John Macrossan, a Queensland delegate in 189 1, noted that the "influence of party will remain much the same as it is now, and instead of members of the senate voting, as has been suggested, as states, they will vote as members of parties to which they be~on~."'~ The maximalist view of the Senate's state protection role acknowledges that the Senate was not the only body put in place for this purpose. In Craven's view, however, the Senate was to be "arguably the most important part" of a three-pronged scheme to protect the states, the other two prongs of which were the limited grant of powers to the federal government, and the institution of the High Coun to police the boundaries of those powen.14 He notes that the Senate's avowed purpose was the protection of State interests. Thus, embedded within the Commonwealth legislature itself, was a component designed to safeguard the position of the States. To put the matter crudely, Commonwealth legislation hostile to the States would simply fail to get off the ground through the intervention of the senate."

This view also fin& support in the comments of delegates to the Conventions. Frederick Holder, a delegate from South Australia to the Adelaide Convention of 1897, for example, regarded the Senate as "that House whose business and whose only reason for existence will be the protection of the interests of i ta tes."'^ It was not only the representatives of the small states, however, who held this view. The leader of the New South Wales group at the Adelaide Convention, Edmund Barton, averred that the delegates must design the constitution not only to have a Parliament consisting of two Chambers, but to have ... the basic principle of Federation conserved in that Chamber which is representative of the rights of the States; that is, that each law of the Federation should have the assent of the States as well as of the federated people. l7

The view of the Senate as primarily the protector of the smaffstates is supported by the fact that, as noted above, most of the founders did not fully conceive of a powerful and independent federal govemment from which al1 states would need protection.

Rather, the federal govemment "was seen as an organisation for adjusting State interests, rather than as having policies of its own which might conflict with those of a11 State governments."18 Thus, in this view, the main concem was that the federal govemment, dominated by the more populous states, would be used by them to the disadvantage of the

Iess populous states. Indeed, it has ken shown, via the Convention debates, that this fear by the small states was the main reason for a number of constitutional provisions. It was behind not only equal representation of states in the Senate, but also behind a long list of provisions ensuring non-discrimination or uniformity in tax law, customs regulations, general trade and commerce law, and rail way freight rates.19 The resolution of these debates is not Our concem. In general, one may conclude that the Senate was designed to have some role, if not a primary one, in the protection of the rights of the states, and that the small states were more fearful than the more populous states. This position is reflected in Zines' conclusion that states' rights were regarded as being protected by a powerful Senate, limited Commonwealth powers, and various limitations of many of those powers designed to ensure that the Commonwealth would not favour one or more States over others." The distinction between protecting al1 states from the federal government and protecting small states from large is not without relevance, however. This distinction must be borne in mind when considenng decisions concerning the method of selection of the Senate, which we consider beiow. To note that the founders intended the Senate to perform a legislative review role is, while accurate, to a degree rnisleading. It was a matter of general consensus throughout the series of Australian constitutional conventions that the second charnber would have iegiçlative powers eqrtal to those of the first charnber, except with regard to money bills." Even in regard to money bills there was substantial consensus: there was general acceptance that the Senate should have a power of veto over money bills, but that it should be prohibited from initiating such bills. However, despite this substantial consensus on the broad outline of the Senate's legislative role, the details of the second chamber's role as regards money bills became the rnost contested item of both the 1891 and 1897 conferences."17 This has been attributed to the fact that two factions among the delegates - those favouring a limited federal government and strong states versus those favouring a stronger federal govemment and greater majontarianism - focused the battle over their principled positions on this issue.'3 For our purposes, it is unnecessary to discuss the detail of how these differences were resolved, We need only conclude that the Australian Senate was to be a second chamber with powers nearly the equal of those of the first chamber, and thus a body fully competent to fufill a legislative review role. We turn now to the processes by which the specific design of the temtorial non- majoritarian aspects of the Senate were decided upon.

The National Australasian Convention of 1891 opened with a motion by Sir Henry Parkes, premier of New South Wales, that read, in part, that the new constitution should establish A parliament, to consist of a senate and a house of representatives, the former consisting of an equal number of members from each province, to be elected by a system which shdl provide for the retirernent of one-third of the members every years [sic], so securing to the body itself a perpetual existence combined with definite responsibility to the electors."

This motion was based on two draft bills which had been forrnulated before the

1890 Me1 bourne conference? Both these bills, based on the extant U.S. model, featured equal representation of states in a Senate whose mode of selection was to be appointment by state legislatures. Neither equal representation nor the method of selection was senousl y contested at the 189 1 Con ference; the only significant suggested amendment was one which would have increased state autonomy by leaving the method of selection up to the choice of each state." This amendment being rejected, the draft bill that emerged from the 1891 Conference stated that Senators would be "directly chosen by the Houses of the Parliament of the several states."" This provision, when combined with others specifying equal state representation and a six year tem for Senators in a chamber which would never be totally dissolved, provided for an "extremely powerful Senate" that would act as a states' house."

It was ideological change during the 1890s which altered the method of selection of the Senate. The rise in democratic ideals led to calls for direct election of Senators, to put it in accord with evolving thinking in regard to dernocratic accountability and ~e~itimac~.'~Both the growing labour movernent and radical liberals advocated a directly elected Senate. By the tirne of the Conferences of the late 189Os, public support for a directly elected Senate was so strong that the matter was scarcely a topic of debate. Thus it was that in the first draft bill presented to the 1897 Conference in Adelaide the method of selection had been altered, and the language which would be Iater be enshrined in the Constitution was aiready present; i.e., that Senators would be "directly chosen by the people of the tat te."^' That the change in the method of selection was accepted so easily may also be related to the ambiguity, noted above, as to whether the Senate was to defend al1 states against federal encroachment, or small states against large-state dominance of the federal government. Had al1 states been concerned with federal dominance, they rnay have been

more insistent on state legislatures' role in the selection of Senators. However, if the

main concern was to defend the relative influence of the small states, equal representation without regard to population would be the pnmary mechanism. and the method of selection less salient.

In any case, the states carne to be represented in the Senate not as "political entities personified in the form of State governments, but [as] aggregates of voters linked by common residence within State b~undaries."~'The determination to include a state representation role for the Senate was thus fundamentally modified by the growing belief in the importance of popular election. With the decision on the method of selection of Senators virtually completed before the 1897-8 Conventions, other issues relating to Senate design became a matter of debate. The participants started from the premise of equal representation of states in the Senate, regardles of population.3z Initiaily, this amounted to six Senators from each of the six states, for a total of 36 Senators. Half the Senators from each state were to be elected every three years. Next came the agreement that the House of Representatives wouId be chosen on a population basis. However, so as to retain the relative sizes, and thus the relative influence, of the two chambers, it was decided that the membership of the Senate would be increased proportionally as the size of the Mouse gew to accommodate a growing population.' The Senate was in this way to remain at about half

- The cohon from each state has ken increased twice: to 10 Senators per state in 1948. and to 12 per state in 1983. Additionally, the Northern Temtory and the Australian Capital Territory were each allocated two Senators in 1975. Thus, the contemporary Senate is composed of 76 members. the membership of the House. With these principles decided, the debate then moved to the powers of the two ous ses.'^ Having achieved equal representation in the Senate, the less populous states now had to battle the populous states of New South Wales and Victoria to ensure the Senate had the power to defend their interests. The less-populous states were successful in establishing a Senate which had powers equal to those of the lower house. except that it might not initiate or amend money bills. However, the Senate could retum money bills to the first chamber with requests for amendments? Having thus established two virtually CO-equalhouses, each with full veto powers. the founders then had to deal with the possibility of deadlo~k.~~The solution ultimately decided upon was that, in case of deadlock between the two chambers, the constitution should provide for double dissolution of the two houses. If, following the election, the deadlock should persist, a joint sitting of the two houses was called for, with the legislation passing or faiiing by a three-fifths majority vote.' The importance of the above noted provision regarding the relative number of seats in the two houses becomes obvious in the case of a joint sitting: with double the number of seats, it is likely that the will of the first chamber will prevail. In the course of the Conventions, then, the ability of the Senate to defend the territorial non-majoritarian principle was substantially eroded. While equal representation and Senators' six year terms remained unchanged in the final Constitution, thc changes to the method of selection and introduction of a provision for double dissolution followed by a joint sitting in which a simple majonty would mie. weakened the Senate as a body able to defend state interests. In the end, the principle of state

' The three-fifths provision was objected to strongly by New South Wales. Due to fear the t:ntire constitution would be rejected in a referendum in that state, an 1899 Premiers' Con ference agreed to downgrade the provision to a simple majority. representation was instantiated primarily via the fact that some regional aggregations of voters would have more effect on the make-up of the Senate than would others. Both path dependency and historical learning were factors in the design of the Australian Senate. Bicameralism itself was essentially a non-issue: Because of their political socialisation in English and Australian parliarnentary traditions, the founders, who were colonial parliamentarians, took legislative bicameralism for gmnted?

Similarly, although they admired the U.S. model, the delegates wished to retain the system of responsible government already present in the colonies. Rydon notes that, [tlhe framers had no wish to change the practices in the colonies which became the States. They desired to retain responsible govemment not merely because it was British, but because it already e~isted.~'

In the design of the specifics of the powers of the Senate and the relationship between the houses, historical learning played a part. Colonial responsible government in Australia included cases of suong second chambers claiming powers equal to those of first charnber~.'~Indeed, there had even been cases of second chambers refusing supply to governments. Thus, though the issues surrounding the relative powers of the two chambers were hotly debated, the Australian founders, having had experience working with virtually CO-equalchambers, trusted that, with the proper mechanisms in place, such systems could function. Historical leming was also a factor in that the founders considered the Canadian and U.S. models of federalism in designing their constitution, including the specific design of the Senate. The fact that they misunderstood the real effects of the two models is unfortunate; Le., they believed that the U.S. model for the division of powers was less facilitative of centralisation than was the Canadian model. However, that does not alter the fact that they chose their constitutional path based upon the lessons they drew from these models. It has been suggested that the final design of the Senate left the way open for a variety of evolutionary paths.39 If the federal structure dominated. the Senate could become a powerfully decentralising 'states' house; if bicarnerdism dominated, the Senate could become an influential chamber of legislative review; and if parliamentarkm dominated, the Senate could become a secondary chamber, sidelined by the logic of responsible govemment. It is to the factors involved in that evolution that we now turn. EVOLUTION The series of Australian Constitutional Conventions produced a Senate that was a compromise between the interests of the large and small states, between those prefemng a relatively strong national govemment and those prefening the retention of state autonomy, and between those favouring more majoritarian and less majoritarian models of democracy. We will consider both the institutionai and social influences that have guided the Senaie's subsequent development. Institutional Factors We will consider four institutional factors in the development of the Australian Senate. These are: parliamentarism, the method of selection of Senators, the electoral system, and the division of powers. The primary institutional factor in the development of the Senate has been prliamentarism. The Australian Senate has, since its inception, been caught between the differing logics of the paradigrn of majoritarian democracy - the Westminster-style, parliamentary, responsible government model - and a less majoritarian system - the U.S.-style separation of powers model. The logic behind the former is to control power by concentrating it, but making it immediately responsible to a iegislature. The logic of the latter is to control power by dispersing it, both among the branches of government, and between the orders of government. The Australian founders attempted to mix the two: they chose to have an executive responsible to the lower house, but also, as we have noted, to have a second house with nearly equal powers. 91 Australian observers have therefore argued over the proper role of the Senate

virtually since its establi~hment.~Some have argued that the Senate's powen should be downgraded, as a powerful second chamber is antithetical to majoritarian democracy and

responsible govemment. Others have argued that the Senate should be restricted to defending the interests of the States, and be less involved in legislative review. Still

others argue that the state representation role itself cannot be reconciled with parliamentarism. Crornmelin encapsulates the latter view: [TJhe defect is structural. The function envisaged for the Senate of providing the consent of the States to the exercise of Commonwealth legislative powers requires a diffusion of power which is fundamentally at odds with the concentration inherent in responsible govemment. The Senate is inevitably cast in the role of a house of review rather than a house of the tat tes."

Thus, the Senate remains "'essentially contested', in the sense of king subject to opposing interpretations and evaluations based on conflicting and irreconcilable political values."'" The fact that the Australian founden decided to combine federali sm wi th parliamentarism, rather than fully adopting the U.S. mode1 of an independent executive branch, has meant that the powerful Senate they copied from the U.S. has suffered the constant denigration that is the fate of parliamentary second chambers. A subsidiary effect of parliamentarism, a strong party system, is regarded by many as the most important factor in the Senate's development. Sharman emphasises the effects that the early emergence of a party system had on the Australian senate.') In the early years after federation. the Senate struggled to find a distinctive role. As party affiliation becarne the dominant factor in the operation of both houses of the Australian parliament, the ability of the Senate to act as a defender of state interests declined. The possibility that Senators would organise themselves in state blocs, and fom multi-state voting coalitions on that basis, evaporated. Critical in these developments was the emergence of the Australian Labor Party (ALP). Founded in the 1890s, the ALP had Iittle influence on the federation process. Significantly, however, most of the colonial Labor parties opposed both federation in general and the institution of a bicamerd system in particular.u The growth of an integrated Australian Labor Party in the early years of the new century stimulated the coalescence of a number of other state-based groupings into nationally-onented parties."5 By 1910, the party system had become the dominant feature affecting the operation of both houses of parliament." Thus. within a decade of federation parliamentarism had bred two "essentially class-based, semi-ideological" parties in a system that stressed party solidarïty and discipline." The conventional understanding of the development of the Australian Senate,

then, is that it quickly became a 'party house', not a 'states' house', and thus that it never fulfilted its primary function as the protector of state interests. This fact is cited as a

pi vota1 factor in the general decline of state power vis-à vis the federal government.48 The combination of parliarnentarism at both levels of govemment with strong party discipline produced a pattern of executive federalism similar to that which developed in Canada. The early institutionalisation of intergovemmental relations at the executive level, in the 1920s and 1930s, was as a result of structural factors, discussed below. Watts has concluded that Australia has developed one of the most extensive systems of executive federalism of any federationS4' Panisanship has been injected into the operation of executive federalism in Australia, and has interfered in its functioning. Rydon notes that [tlhe notion of strong executives controlling parliaments has often clashed with the bargaining and compromise which may be necessary in federaI government. The adversarial style of politics has permeated al1 activities between parties and between governments.50 As in Canada, the mechanism of executive federalism has provided an alternative regional voice to that of the Senate.

A second institutional factor in the evolution of the Australian Senate is its method of selection. The direct election of Senators has ken cntical to the development

of the institution, in that it has conferred legitimacy on the second chamber. While there has been recurrent, if not constant, debate as to whether the Senate's powers should be downgraded, the fact remains that, unlike most other second chambers in parliamentary systems, the Australian Senate has managed to maintain its position. Clearly, however, Iegitimacy via direct election has been gained largely at the cost

of the Senate's state protection role. The direct election of Senators in a parliamentary system infused with partisanship has meant that Senators are pre-disposed to allow party concerns to dominate. Reliance on party machines for election is a powerful inducement to party discipline. Given the fact that the founders chose to express state interests in the Senate via direct election within a parIiamentary system, however, we need to consider the Senate's state protection role in this light.

While it is true the Senate has only very oçcasionally operated as a states' house in the sense of bloc voting by state representatives across party ine es,^' and thus the effect of party on the Australian Senate is undeniable, the argument that this has utterly perverted its role as a representative of the states is overstated. First, Sharman points out that the overrepresentation of the smaller states has a great effect on the composition of the parliamentary parties, thus providing the smaller states with a greater voi~e.~'By bestowing on the smaller states a proportionally greater representation, the system creates political resources which the smaller states may deploy against rivals for influence with the federal government.s3

Second, as Australian parties utilise a decentralised organisational structure, it is necessary for national politicians to maintain support within their state wing of the It is state party executives who have a great influence over the composition and 94 ranking of candidates on the party lists for Senate elections. Thus, Senators reflect the

interests of those party officiais, and, in this sense, the Senate has ken referred to as a "S tate Party t ou se."^^ Third, the Senate committee system has been notably n~n-~artisan.~~To the degree that Senators, at least at the cornmittee level, are able to respond to incentives other than those of party, their ability to reflect state interests is enhanced. Consequently, the Senate remains an element, if a minor one, through which state concems can be articulated at the national 1eve1.~' If the die was cast when the founders

chose direct election as a method of selection of Senators, it would seem that any substantial alteration of the Senate's state protection role would require a change in that

system. A move away from direct election is entirely outside the bounds of possibility, however, given Australia's highly egalitarian political culture.58 A third institutional factor in the evolution of the Senate has been the electoral system. While some of the founders expected that a proportional representation (PR) system would be adopted for Senate elections, this option was rejected as king incompatible with British-style responsible govemment." The Senate was thus selected via the 'first past the post' system until 1919, when both houses switched to a preferential voting system." 00th of these electoral systems produced lop-sided outcomes, favounng the party which was about to become the majonty in the lower ~hamber.~'Typical outcomes included, for government and opposition parties respectively, 3 1-5 in 19 14, 35- 1 in 1919. and 33-3 in 1934.'' The result was that the tendency to see party as the primary axis of conflict was encouraged, while other cleavages were do~n~la~ed.~~ The proportional representation system was finaliy instituted for Senate elections in 1948. The change to a PR system occurred for three reasons? These included the persistent, highly majoritarian representational imbalances produced by the previous systems; the fact that representational imbalances would be exacerbated by the impending enlargement of the Senate; and tactical considerations on the part of the 95 govemment of the time, in that it was believed the new system might confer an electoral advantage on the Labor Party. The change to PR was thus only partiaily undertaken to augment the Senate's non-rnajoritarian character. The Labor Party's hopes for the new electoral system were, initially, fulfilled. In the first election under PR, the ALP lost its majority in the House of Representatives, but rnaintained i ts majority in the ~enate.~'However, in the mid- 1950s the Democratic Labor Party @LP) formed as a break-away party from Labor. Benefitting from PR, the DLP gained Senate seats in the 1960s, and by 1967 the DLP and independent members held the balance of power in the second ~harnber.~~These minority groupings, interested in using the Senate as their power base, moved to develop the institutional structure of the chamber, through the establishment of a system of both standing and select cornrnittee~.~' These changes strengthened the chamber's ability to cary out its legislative review role.

As the members grew in expertise, a new self-confidence and assertiveness emerged on the Senate's part in its relationship with the first charnber. The new electoral system also affected the Senate's state representation role. Proportional representation increased the representation of regional particularities in the senate." That is, the minor party and independent members who gained office under the new system reflected a wider range of regional opinion in their bases of support. Thus, the Senate began to better mirror the regional diversity of the country than it had in the past, and, indeed, better than did the lower chamber. The fourth institutional factor in the development of the Senate is the division of powers. There are two strategies for dividing legislative authority between orders of government. One is to enumerate comprehensively, as far as possible, the exclusive powers of both orders of govemment, assigning any matters not Iisted, the residual powers, to one or the other order of govemment. The second strategy is to enumerate the powers, exclusive or concurrent, of only orle order of government, leaving a large residuum of powers to the other order of government; this is the strategy followed by 96 Australia. In the Australian case, the founders emulated the U.S. example, enumerating the powers of the federai govemment, leaving the residual powers to the ~tates.~~ The effect of the Austnlian system is to establish a very broad area of concurrent jurisdiction between the two orders of govemment.70 Except for the few areas of exclusive federal jurisdiction, both orders of government have the freedom to legislate, with only the federal pararnountcy rule to sort out conflicts. This fact has two subsidiary consequences. First, the powers of the federal and state governments are directly interrelated. That is, the extent to which the federal govemment's specified heads of power are interpreted narrowly or broadly directly affects the residuum left to the states. The second consequence is that the federal government's level of activity directly affects the balance of power between the federal govemment and the states. An activist federal government can, if allowed by the High Court, simply choose to occupy entire legislative fields, thus leaving no residual area for state legïslation. This is in fact what has occurred in Australia. One critical example is in the area of finance." The states are unable to levy consumption or seneral sales taxes due to a broad High Court interpretation of section 90 of the Constitution, which gives the federal government exclusive control over excise duties. In addition, a federal monopoly over income tax, established in 1942 for war-time expenses, was sanctioned by the High Court in such a way as to allow the monopoly to continue in peace-time. The result has ken a high degree of vertical fiscal imbalance in favour of the federal govemment, thus confemng on that govemment the wherewithal to influence state governments' policies. The overall result of concurrency has been a federal system characterised by increasing centralisation of power at the federal Ievel. While the failure of the Senate to protect the states has contributed to this centralisation, centralisation itself has had a feedback effect on the Senate: the importance of its legislative review role has been enhanced. That is, to the degree that influence in the Australian federation has flowed to federal institutions, the Senate has been a beneficiary. That the role of the Senate is 97 constantly a matter for debate in Australia is due in part to the fact that the actions of federal institutions are highl y salient in a centralised federation. Social Factors The social environment has shaped the generally centralising trend in the development of Australian federalism. In this section we consider three types of factors: demographic, structural, and ideological.

The Australian federation did not arise out of clearly distinct demographic di fferences. At the time of federation, the federating colonies exhi bited cultural homogeneity; as Rydon notes, "[tlhere were no basic cultural, racial, religious or linguistic differences" arnong the colonies which united to form the federati~n.~'As a result. there was, and is, no cultural underpinning to the Australian federal system. In this sense, Australia has ken in contradiction to the thesis put fonvard by Livingston for the existence of federal political arrangements: The institutions themselves... are only the surface manifestations of the deeper federal quality of the society that lies beneath the surface. The essence of federalism lies ...in the society itse~f.~~

Without the tenitorially demarcated cultural divisions of the type faced by Canada or Switzerland to act as a source of support for the States, there was little enduring resistance to the centralisation of Australian federalism. Indeed, the maintenance of cultural homogeneity was an explicit government objective through much of the early history of the federation: Chapman notes the felt need to assimilate an immigrant population as an important integrative impulse in Australian society.'" Beyond the general effect on Australian federalism, a specific effect of cultural homogeneity relates to the party system, and thus to the Senate. Without cultural cleavages to fragment the party system, Australians have tended to attach greater significance to social status and class, creating a degree of homogeneity in partisan loyalties encompassing both levels of govemment.7s Thus, the homogeneous Australian social environment supponed the institutional predilections, noted above, of parliamentarism to the predominance of partisan loyalties over state loyalties. Structural factors were also instrumental in the development of Australian federali sm. Economic development has been a major source of centri pet al tenden~ies.'~ First, severe financial difficulties in some of the states in the 1920s and 1930s allowed the federal government to establish predominance in the field of government finance. Second, the federal responsi bili ty for corporations has become more important wi th increased corporate activity in society, and the growth of multinational corporations. Third, federal jurisdiction over trade has become more important with increases in international trade flo~s.'~Thus, economic development has increased the salience of some federal powers, and thereby had a centralising effect, A second structural factor is the small number of Australian states. The existence of only six states and two tenitones, combined with parliamentarism. has facilitated the development and operation of executive federalism in ~ustralia.'~Indeed. executive federalism has a long tradition in the country, dating from the establishment of the Loan Council and Grants Commission to deal with the financial crises of the 1920s and 1930s. As in Canada, this means there is an alternative venue to the Senate for the constituent units to have input in national politics. Icieological trends have had an influence in Australia. As noted above, since the

Australian Senate was designed in the 1890s, it was contemporary with the rise of democratic ideals. Therefore, its initial design was able to be adjusted to accommodate democratic pressures, pressures to which previously instituted second chambers have had to adapt.

A second ideological trend was a factor, however, in the evolution of the Senate. Collectivist ideological tendencies in the period from the 1930s to the 1970s tended to focus attention on national govemments. The Australian Labor Party, as one of the two 99 dominant parties, was instrumental in articulating these ideas in the mainstream of Australian politics. The party charnpioned Keynesian economic management strategies and the building of a national welfare state, both of which required a pre-eminent role for the federal govemment, and both of which were fuelled by a growth in popular expectations that the national economy should be rnanaged by the national government. If the ideological trend to which the ALP was wedded led to a greater focus on the national institutions, and thus benefitted the Senate, this was not an outcome in accord with the Party's wishes. The Labor Party viewed the Senate as a conservative institution, and thus as a roadblock to its aspirations. This was the basis of the party's long-standing (19 19- 1979) advocacy of abolition of the ~enate.'~ The Contemporarv Senate One cannot write an account of the development of the Australian Senate wi thout some reference to the events of the mid-1970s. However, as these relate only tangentially to the Senate's role as a defender of temtorial non-majontarianism, we will deal with the entire episode rather bnefly, and emphasise those aspects particularly related to our area of concern. As we have noted, the late 1960s and eady 1970s were a time of growing assertiveness of the Senate. In 1974, the opposition and minor parties in the Senate. having rejected a number of Labor govemment bills, threatened to reject government financial requirements, so-called supply bills. The govemment forestalled this action by calling for a double dissolution of the two houses, on the basis of the Senate's rejection of the non-supply bills. The ensuing election retumed the Labor Party with a reduced majority in the House, and a Senate composed of 29 ALP members, 29 LiberalKountry Party members, one Liberal Movement member, and one independent. Within 18 months, the ALP lost two Senators, one to the High Court and one to mortality. The Constitution provided that such vacancies in the Senate were to be filled via appointment by state legislatures. It had been the practice for Senate vacancies to be 100 filled with Senators of the same party as the former incumbent, thus maintaining the sarne party strength in the Senate until the subsequent e~ection.'~In this case, however. this custom was breached by two state governments which were opposed to the ALP's policies, thus tipping the balance in the Senate to the opposition parties. The Senate subsequently refused to pas a number of bills, inciuding supply bills. The government claimed the opposition was in breach of the principles of responsible government; the opposition pointed to the Senate's constitutional right to retum supply bills to the House, and claimed the government had iost the right to govern in that it had been refused supply by parliament. After a four-week stand-off, the Governor-General took the unprecedented step of dismissing the government and installing the opposition in power. In one day the Senate granted supply, and another double dissolution was granted. In the subsequent election the LiberaVCountry party won majonties in both the House and the Senate. While these events remain controversial. two points are important for Our analysis. First, the constitutional role of the state legislatures, in this case controlled by state governments, in filling Senate vacancies was responsible in part for the onset of the deadlock. While these state govemments chose to express their differences with the federal govemment via partisanship, their actions demonstrate the distinctions arnong the three ways that state interests may be expressed at the federal level; Le., via directly elected members, indirect election by state legislatures, or appointment by state govemments. In this case, the actions of the state governments demonstrate how direct constituent-unit government involvement at the federal level can change the dynamic of federal politics. While the system of filling Senate vacancies in Australia continues largely unchanged, a 1977 constitutional amendment codified the formerly customary practice of state governments filling vacancies with members of the same party as the former Second, the events of 1975 have generated a new appreciation in Australia of the conflicting institutional logics of majoritarian and non-majoritarian derno~rac~.~'While the debate waxes and wanes in Australian political circles, the terms of the debate are

essentially unchanging, and can be traced to the Convention debates of the 1890s. On one side are those who espouse the pnnciples of majoritarianism, of responsible government, of govemment mandates. Their constant refrain is that the Senate's powers must be downgraded. The views of this side are presented pointedly, if ineloquently, by a former Prime Minister who described Senators as the "unrepresentative swill" of Australian politics.83 On the other side are those who challenge the majoritarian assumption that the achievement of a parliarnentary majority confers on the executive a virtuaIly unfettered nght to govem. Advocates of this view point to the fact that the Senate now incorporates representatives of a wider range of views than does the first chamber, and that, as a directly elected body, it is at least as legitimate a legislative institution as the first chamber? It is thus argued that the Senate must not only maintain its powers, but increase its overall scrutiny of govemment activities. In the absence thus far of constitutional changes to the Senate's powers, the chamber has pursued its own course. With the regaining of the balance of power in the Senate by minor parties in 1980, the Senate entered what Uhr terms "the age of rnin~rit~."~~It is now the nom that neither of the major parties holds a majority in the Senate, but nther that the balance of power is held by minor parties.86 With the greater influence of these minor parties, the Senate has been more assertive of what it perceives as its rights. Since the 1980s, the second chamber has further strengthened its committee system, and instituted legislative timetabling rnea~ures.~'The Scrutiny of Bills Cornmittee, for example, was instituted to examine legislation from a civil liberties perspective.88 In the 1990s. the Senate has challenged the govemment in regard to budgetary measures, and even taken steps intended to improve the review of legislation in the first ~harnber.~~The consequence has been that the Senate has improved in its 102 legislati ve review function, and, in so doing, reasserted itself as a counterweight to a majori tarian lower house? In summary, the Australian Senate is a powerful second chamber in the context of parliarnentary federations. The logic of responsible government in parliarnentary systems means that it has been unavoidable that the operation of the Senate should be entwined with a strong party system. This fact, combined with its method of selection, has senously damaged its ability to carry out its role as a body concerned with territorial non- majoritarianism. However, election of the Senate via a form of proportional representation on state-wide constituencies, and the emergence of rninor parties holding a balance of power in the Senate, have enhanced the Senate's non-territorial, non- majoritarian legislative review role. Thus, despite its critics' assertions, both in academia and the executive of the federal governrnent, that a strong Senate is antithetical to responsible government, the Australian Senate appears to be bringing a measure of non- majoritarian democracy to an otherwise majontarian parliamentary system of government. CONCLUSION The initial design of the Australian Senate provided for an institution which expressed non-majoritarianism in three ways. First, the Senate was meant to have a role as the protector of the interests of al1 the constituent states. It was one of a series of elements in the Australian system of govemance included for this purpose; other important elements were the retention of state governments, the federal division of powers, and the institution of the independent High Court as the adjudicator of jurisdictionaI disputes.

Second, it was intended to defend the interests of the less-populous states. The unquestioning acceptance of a Senate composed of equal numbers of representatives from each state was just one indication of the fundamental i rnportance of this role. Thus, there were initially two aspects to the Senate's role as an element of temtorial non- majori tarianism. Third, the Senate was to have a role in bringing a non-majontarian element to legislative review. As a singularly powerful second chamber in a parliamentary context.

the Senate was given the power of veto over al1 legislation; only in that it might not

initiate or amend money bills was it secondary to the first chamber. As the design of the Senate took place over the last decade of the lgthcentury, the openly anti-demoçratic roles associated with second chambers in the earlier federations were ornitted in the Australian case. Additionally, this Senate incorporated in its design the ideologicai trend to democracy: the Australian Senate was the first federal second chamber that, from its establishment, was directly elected. We have identified a number of institutional and social factors which have been important in the origins and evolution of the non-majoritarïan characteristics of the Australian Senate. In regard to its origins, the factors inctuded: a rising ideological predisposition to egalitarianism; a desire that the Senate express temtorial non- rnajoritarianism; historical leaming, in the form of disapproval of what was perceived as the Canadian mode1 of centralised federalism, and endorsement of what was viewed as the U.S. rnodel of decentralised federalism; and path dependency, in that the designers were from colonies that had bicameral legislatures and responsi ble governments, and in that they transferred these features to the new Senate. We have identified four major institutional factors which have affected the evolution of the Australian Senate. These are: the parliamentary system, especially in regard to the influence of party affiliation; the method of selection of Senators; the electoral systern; and the distribution of powers. These factors have contnbuted to the development of the Senate as a 'party house' rather than a 'states' house, but as an institution which is increasingly able to express non-temtonal non-majoritarïanism via the influence of minor parties, in a relatively centralised Australian federation. 104 We have in addition identified three types of social factors which have affected the evolution of the Senate: demographic, structural, and ideological. The critical dernographic factor has been the relative cultural hornogeneity of Australian society. Structural factors include: the centri petal effect of Australian economic development, which has enhanced the importance of federal powers; and the relatively small number of constjtuent units in the federation. The main ideological factor was the collectivist ideological trend in the middle decades of the 20~century, especially as expressed by the Australian Labor Party. In combination, these factors have contn buted to the centralisation of the Australian federation, and contributed to the relative accentuation of the Senate's legislative review role over its state protection role. We have thus noted that the contemporary Senate is a vital element in the Australian system of govemance. Through the actions of minor parties and independent members, the Senate has been increasingly assertive in its dealings with the first charnber. These Senators, who have an interest in seeing the pnvileges of the second chamber maintained and enhanced, as they see it as their only field of activity, have promoted the Senate as a non-territorial non-majoritarian check on the majoritarïan first charnber.

There can be little doubt in the Australian case that the Senate was meant to have a role as the protector of state interests, i.e., a role in the defence of territorial non- majontarianism. Just as certain is the assertion that the founders constmcted a hybrid constitutional system which put federalism, bicameralism, and parliarnentarism in tension. However, the decision to represent the populations of States in the Senate via direct election of Senators put the federaf, state representation role of the Senate in jeopardy. The logics of pariiarnentarism and bicameralism, in the context of a relatively homogeneous society, have meant that the temtoria1 non-majoritarian aspects of the Senate's operation have been displaced by its role as a chamber of legislative review. ' Australia, Parliament of Australia, "The Records of the Australasian Federal Conventions of the 1890s," [Online](June 29,2000), Available http://www.aph.o;ov.au/senate/pubs/records.htrn Ronald Noms, 'Towards a Federal Union," in Bruce W. Hodgins, Don Wright, and W.H. Heick, eds., Federalism in Canada and Arrstralia: me Early Years (Canberra: Australian National University Press, 1978), 182. ' Ibid., 189-9 1. 1 Bruce W. Hodgins and Don Wright, "Canada and Australia: Contiouing but Changing Federations," in Bruce W. Hodgins, Don Wright, and W.H. Heick, eds., Federalism in Canada and Artsrralia: iVze Early Years (Canberra: Australian NationaI University Press, 1978), 289. Leslie Zines, 'The Federal Balance and the Position of the States," in Gregory Craven, ed., ï7ze Convention Debares 1891 -1898: Comrnenrarïes, Indices and Grride (Sydney: Legal Books Pty. Ltd., 1986), 75-77. 6 Joan Rydon, 'The Australian Tradition of Federalism and Federation," in M. Burgess and A. G. Gagnon, eds., Comparative Federalisrn and Federation: Conipering Traditions and Future Directions (Hemel Hempstead, UK: Harvester Wheatsheaf, 1993), 228. 7 B rian Ga1 l igan, A Federal Republic: Arcstralia 's Cortstitutional Systent of Govemrnenr (Cambridge: Cambridge University Press, 1995)-46-47. Zi nes, 'The Federal Balance and the Position of the States," 77. 9 Gregory Craven, "The States-Decline, Fa11 or What?," in G. Craven, ed., Ausrraliari Federatiorz: Towards the Second Cerztrrry (Me1bourne , Australia: Me1 bourne Uni versi ty Press, 1992), 50. 1 O GalIigan, A Federal Reprrblic, 8 1-84. II Australia, Parliament of Australia, "Debates of the Australasian Federal Convention of l897/8 in Three Sessions: First session, Adelaide, 22 March-23 April 1897," [Online] (June 29, 2ûûû), Available http://www.aph.aov.riu/senate/pubs/records.htm,- LOO.

" Ibid., 293. 13 Austrafia, Parliament of Australia, "Debates of the National Australasian Convention, Sydney, 2 March to 9 Aprit, 1891," [Online] (July 9, 2000), Available http://www.a~h.~ov.au/senate/pubs/records.htm, 434. 14 Craven, 'The States--Dedine, FaIl or What?," 59-6 1. 15 Ibid., 59. 16 Australia, Parliament of Australia, "Debates of the Australasian Federal Convention of 1897/8 in Three Sessions: First session, Adelaide. 22 March-23 April 1897," [Online] (June 29, 2000), Available http://www.aph.gov.au/senate/pubs/recordhtm, 148. 17 Ibid., 21. '' Zines, 'The Federal Balance and the Position of the States," 78. l9 Ibid.

'O Ibid., 79. " Bnan Galligan and James Warden, 'The Design of the Senate," in Gregory Craven, ed., Tlze Corlventiorr Debates 189 1- 1898: Commentaries, Indices and Guide (Sydney: Legal Books Pty. Ltd., 1986), 90.

77

" bid., 94.

" Ibid., 94-96. 24 Australia, Parliament of Australia, "Debates 189 1," 23.

'5 Galligan and Warden, "The Design of the Senate," 9 1-92. 2G Gregory Craven, "A Guide to the Evolution of the Provisions of the Commonwealth of Australia Act 1900," in Gregory Craven, ed., The Corwetnion Debates 1891 - 1898: Cotnnientanes. Indices and Guide (Sydney: Legal Books Pty. Ltd., 1986), 356-57.

" Ibid., 357.

" Galligan and Warden, 'The Design of the Senate," 109-10.

59 Ibid. 30 Craven, "A Guide," 356-57. 3 1 Campbell Shaxman, 'The Australian Senate as a States' House," in Dean Jaensch, ed.,

Tlie Politics of "New Federalism " (Adelaide: Australian Political Studies Association, 1977), 65.

" Sir Condor Laucke, 'The Australian Senate," nie Parliarnentariurz 63 (1982). 254. 3 3 Ibid., 254. 34 Ibid., 256-57. 35 Ibid., 254. 36 Galligan and Warden, 'The Design of the Senate", 9 1. 37 Joan Rydon, "Some ProbIems of Combining the British and American Elements in the Australian Constitution," The Journal of Cornrnorzrvealtlz and Cornpurative Politics 23 (1985), 66. j8 Ibid., 68.

39 campbell Sharman, "Second Chambers." in Herman Bakvis and William M. Chandler, eds., Federalism and the Role of the Stare (Toronto: University of Toronto Press, 1987), 93.

1O7 "O Ga1 ligan, A Federal Republic, 64-65. 4 1 Michael Cromrnelin, "The Federai Model," in G. Craven, ed., Aristralian Federarion: Torvards the Second Centuty (Melboume , Australia: Melbourne University Press, 1992), 44. " Richard Mulgan, 'The Australian Senate as a 'House of Review'," Aitstralian Joitnzal of Political Science 3 1 ( 1996)- 191. 43 Sharman, "Second Chambers," 93. U Ga1 ligan, A Federal Republic, 93-94. R.J.K. Chapman, "Federalism, Intergovemmentd Relations and the Australian Policy Process," in C. Lloyd Brown-John, ed., Centraking attd Decerztralizirzg Trends irz Federal States (London: University Press of Arnerica, l988), 143. 46 Sharman, "Second Chambers," 93. 47 Rydon , 'The Australian Tradition of Federalism and Federation," 237.

." Mulgan, 'The Australian Senate as a 'House of Review'," 192; Craven, 'The States-- Decline, FaII or What?," 60. 49 Ronald L. Watts, Companng Federal Systems (2nd ed.; Mon treal and Kingston: McGilI-Queen's University Press, 1999), 58. 50 Rydon, "The Australian Tradition of Federalism and Federation," 237-38.

" John Uhr, 'The Canadian and Australian Senates: Cornparing Federal Political Institutions," in Bruce W. Hodgins, et al. eds, Federalism in Canada and Artsrralia: Nisrorical Perspectives, 1920-1 988 (Peterborough, Canada: The Frost Centre for Canadian Heritage and Development Studies, Trent University, 1989)- 141-42. '' Sharman, "Second Chambers," 93. 5 3 Sharman, "The Australian Senate as a States' House," 73. 54 Uhr, "The Canadian and Australian Senates," 142.

55 Ibid.

56 Ibid. 5 7 Sharman, 'The Austraiian Senate as a States' House," 73.

58 Ian McAllister, "Political Culture and National Identity," in Brian Galligan, Ian Mc Al 1ister, and John Ravenhi 11, eds., New Developmerlts irl Artstraliarz Politics (Me1 bourne: MacMillan Education Austnlia Pty. Ltd., 1997), 6-9. John Uhr, 'Generating Divided Govemment: The Australian Senate," in Samuel C. Patterson and Anthony Mughan, eds., Senates: Bicarneralism in the Contenlporay World (Columbus Ohio, USA: Ohio State University Press, 1999), 105-07. 60 Meg Russell, Reforming the House of Lurds: Lessons Froni Overseas (Oxford: Oxford University Press, 20),55. " Uhr, "Generating Divided Govemment," 107.

6' Ibid., 107. 63 Uhr, 'The Canadian and Australian Senates," 142. 6" Campbell Sharman, "Constitutional Politics in Australia (1900)," in Vernon Bogdanor, ed., Corzstitutiorts in Democratic Politics (Aldershot, UK: Gower, 1988), 111. 65 Uhr, "Generating Divided Government," 108. 66 Sharman, "Constitutional Politics in Australia (1900)," 112. 67 Shman, "Second Chambers." 95. bid. 69 Galligan, A Federal Reprtblic, 33. 70 Ibid., 33-4.

71 Ibid., 226-27. '' Rydon, 'The Australian Tradition of Federalism and Federation," 227. 73 William S. Livingston, Federalisnt and Constitrrrional Change (Oxford: Oxford University Press, 1956), 2. 74 Chapman, "Federalism, lntergovernmental Relations and the Australian Policy Process," 142.

75 Bruce W. Hodgins, et al., "Dynamic Federalism in Canada and Australia: Contini and Change," in Bruce W. Hodgins, er al., Federalisrn in Canada and Arrstralia: Hisrorical Perspectives, 1920-1988 (Peterborough, Canada: The Frost Centre for Canadian Heritage and Development Studies, Trent University, 1989), 30. 76 Chapman, "Federalism, Intergovernmental ReIations and the Australian Policy Process," 143-45. 77 Craven, 'The States--DeclineVFa11 or What?," 62. 78 Rydon, "The Australian Tradition of Federalism and Federation," 236. 79 Ga1 ligan, A Federal Reprtblic, 107. 80 Sharman, "Constitutional Politics in Australia (1900)," 1 14.

81 Ibid., 116-17. '' ibid., 124. 83 Uhr, "Generating Divided Govemment," 114. 84 Campbeli Sharman, "The Representation of Small Parties and Independents in the Senate," Aristralian Journal of Political Science 34 (1999), 360-36 1. 85 Uhr, "Generating Divided Govemmen t," 108-09. ibid., 95-96. '' Ibid., 109-10. Gall igan, A Federol Republic, 136.

89 Uhr, "Genenting Divided Government," 96-97.

" Ibid.. 1 15- 16. CHAPTER FIVE THE GERMAN BUNDESRAT

INTRODUCTION The initial design of the German second chamber, the Bundesrat, provided for an

institution which expressed non-majoritarianism in two ways. First, it was unarnbiguously designed to be the chamber for the representation of constituent-unit

interests at the federal level. Second, the Bundesrat was designed to be a chamber of legislative review. Due to its distinctive method of selection, the Bundesrat seamlessly integrates the non-rnajoritarian aspects of its legislative review and regional representation roIes. In addition, the Bundesrat was designed to perform the role of a constitutionaily established site for intergovemmental relations. The unusual method in which German federalism divides responsibilities between the two orders of govemment intensifies intergovemmental interdependence. The Bundesrat was designed to provide a venue for consti tuent-uni t (Land) govenlrnents to bring regional issues direct1y into the federal (Bund) parliamentary arena. We will investigate the factors which led the founders of the Federal Repubiic of Germany (FRG) to design a second chamber io fulfill these roles. We will identify a number of institutional and social factors that have been important in the evolution of the non-majontarian characteristics of the Bundesrat. We will see how these factors have contributed to the development of the Bundesrat as a key institution in the German federal system. Final1y, we will demonstrate that the contemporary Bundesrat continues to fui fi Il both the non-majontarian and intergovemmental relations functions for which it was designed. Thus, we will clearly show that the Bundesrat remains a pivotai institutional site for the operation of consensual democracy in the German system of govemance. ORIGINS The design of the Bundesrat is more easily understood when one considers that institutional parailels for this unique body reach back almost 300 years in German history.' The 'Everlasting Diet' of the Holy Roman Empire, which met in Regensburg, Bavaria, from 1663 to 1806, consisted of ambassadors of the estates of the Empire. This

tradition was carried over to the only constitutional body of the Gennan Empire (18 15- 66), the Bundestag. In the executive council of this body, each mernber state had at least one vote but no more than four votes, and votes had to be cast uniformly as state blocs. The Bundesrat of the North German Federation (1866-71) was similarly configured:

votes of member states varied from one to 17, and bloc voting was mandatory. This body is best conceived of as "an assernbly of state ambassadors acting upon instruction of their respective govemments."' The Bundesrat could issue administrative instructions concerning the implementation of laws, but their actual implementation was carried out by the states. This basic mode1 persisted in Imperia1 Germany (1871-1918). The constitution of the Weimar Republic (1919-33) shifted power from the upper chamber -the Reichsrat - to the lower chamber - the ~eichsta~.'The Reichsrat could be

overridden by ri two-thirds majonty vote in the Reichstag or by a popular referendum. However, the method of assigning seats and bloc voting by states, except for Prussia,

were retained. Before it was dissolved by the Nazis in 1934, the Reichsrat had become

more influential in policy-rnaking than had been anticipated when it was established. This brief history demonstrates that the designers of the modem Bundesrat were able to look to a number of previous German institutions for precedents. A powerful second chamber composed of instructed 'ambassadors' of constituent-unit governments, bloc voting by constituent units. weighted voting based on population, and administration by constituent units: al1 were incorporated in the design of the modem. post-war Bundesrat. The establishment of the present Bundesrat is inextrïcably connected to the reconstruction of the German state at the end of the Second World War. It is beyond the scope of this paper to detail the torturous route of this reconstruction from the end of the

war in August 1945 to the institution of the Federal Republic in May, 1949. However, a bnef outline of the process will help demonstrate the central role of the Land administrations. The British and American zones of occupation, the areas of greatest war-time devastation, were amalgamated for economic purposes in September 1946.~In this area. the so-called 'Bizonia', which was to become the forerunner of the FRG,temtorial administration was based on the Ender, in the south, these were organised on historical

boundaries, while in the north, Prussia was divided into new Under. In the Spring of 1947, Bizonia was allowed to set up a parliament, referred to as the Economic Council, whose members were indirectly etected by the parliarnents of the Ender. An executive council was formed, consisting of one delegate from each Land government. In January, 1948, this executive council, re-named the Landemat, became the second chamber of parliament, in which each Land was represented by two delegates. The parliament was given the right to legislate on tax and customs matters, and, simultaneously, a Bank of the German Lander and a Supreme Court were established. In July, 1948, the hnder prime ministers in Bizonia and the French sector were requested to begin the process of constructing a West German central stateS5The occupying forces specified only three general guidelines: that the constitution should protect individual rights, be based on dernocratic principles, and provide a federal structure of govemance. In August, a two-week conference in Herrenchiemsee, in Bavaria, produced a draft constitution; in accordance with German sentiment that there should be no permanent constitution formed without the input of the Lander under

Russian control, it was agreed the temporary constitution would be known as the Basic Law. In September, a Parliamentary Council was created. consisting of 65 members elected in proportion to the results of elections to Land parliaments. Representatives in the Parliamentary Council sat as party caucuses; thus the debates on the final forrn of the

Basic Law were influenced by both Ender and party interests. The Council produced a second draft of the Basic Law, which was submitted to the Allied military governments in November, 1948. The military governments delivered their reply in March, 1949. They refused to accept some of the provisions of the draft Basic Law, provoking a crisis in the constitution-buiIding process. Intensive bargaining ensued, both among the members of the Parliarnentary Council and between the Germans and the Allies. A compromise was reached on April25, and the Basic Law came into effect on May 23, 1949. As this account demonstrates, the Under pre-dated the new West German central state, and the pnmq German actors in the framing of the Basic Law were Land politicians. Thus, the frarners were predisposed to ensure that the interests of the Lander were protected in the institutional structures of the new central state. However, this predisposition was in tension with the cross-cutting. centralising influence of party loyalties. We now tum to an investigation of how the heritage of Bundesrat-style second chambers survived as the mode1 for the institutionalisation of Land interests in the modem Bundesrat. The central issue facing the Parliamentary Council, as the framers of the Basic

Law, was federalism.' While German history offered several prototypes for the balancing of central and Land power, the totalitarïan centralisation of the Nazi era provided one powerfully negative model. The two key questions which had repeatedly arisen in the German tradition of federalism were the composition and powers of the second c hamber, and issues of financial federalism. As the debate developed in the Parliamentary Council, it was clear that the two models of second chamber between which the framers were to choose were a Land- appointed Bundesrat in the German tradition, and a directly elected Senate of the contemporary U.S. type7 Thus, the method of selection of the members of the second chamber was the principal axis of difference. As noted, the discussions in the Parliamentary Council had the cross-cutting cleavages of Party and Land. The primary supporters of a Bundesrat were the southern Lander of the Amencan zone, who had experience wi th the Enderrat. In general, the conservative Christian Democratic Union (CDU), and its Bavarian counterpart the Christian Social Union (CSU) also favoured a Bundesrat, as did some smaller conservative parties. The primary supporters of the

Senate model were the northem Lander of the British zone. These aiso included the left- leaning Social Democratic Party (SPD),the centrist Free Democratic Party (FDP), and the CDU of the British zone. The coalition of supporters of the Senate model based their positions in three arguments.8 Fint. al1 agreed that they did not wish the representatives of the Lander to be able to stand in the way of nation-wide social and economic policies. For the SPD, this was an obvious ideological predisposition, but for its British-zone partners this position was derived from previous experience. Members of the British-zone CDU and FDP had been members of the Prussian government in the Weimar Republic. From this experience grew a predilection for a more centralised administrative apparatus, sentiments which were bolstered by the perceived failures of the bizonal administration to deal with the economic difficulties of the post-war period. Some in this group wished to leave to the Lander only those administrative tasks which the federal government found it i nconvenient to centralise. The second argument for a Senate was made by those who sought to create a new type of German politician. They thought a Senate would, as it had in the U.S., produce independent statesmen, whose matunty and judgement would aid in the establishment of democratic politics in the new Germany. The third argument was based in the supposed shortcomings of the alternative, Bundesrat model. Critics of the Bundesrat model argued that having the executives of Land governments represented in a legislative body violated the principle of the separation of powers. Further, they argued that such a body would lead to bureaucratisation in federal politics and law-making. The supporters of the Bundesrat model countered with two arguments.9 First,

they asserted that only a Bundesrat would be able to break the iron *p of party

government at the federal level. Under delegations would be forced to vote et1 bloc under this model, not as individuals as in the Senate model. If the second chamber were

to be elected by a system similar to that for the first charnber, this argument went, it would be likely to have a similar party composition and would vote dong similar party

lines. The Bundesrat supporters' second argument was that the Bundesrat would provide, in essence, a committee of expens on al1 fields of domestic fedenl legislative junsdiction. Experts in the administration of federal legislation would have input into the

fashioning of legislation, and this would corne at a bargain price. as those experts were already ernployed by the Lander. Several compromise proposais for the design of the second chamber were put fonvard in the course of the discussions.10 Final agreement on the Bundesrat-mode1 came about, however, when the SPD, in an attempt to split the CDUKSU altiance, made a deai with the Bavarian CSU. The essence of the bargain linked the method of selection of members of the second chamber to the powers of the charnber: the SPD would support a

Bundesrat-model upper house if it had weakened legislative capacity. Both advocates of a Bundesrat and a Senate had initially been willing to gant the second chamber legislative equality with the fint chamber." This conpency was justified pnmarily on the basis that a strong second chamber was thought necessary to temper the excesses of majoritarïanism which characterised the Weimar period. However, the SPD came to question its support for a measure which would so seriously impede the majoritarian first chamber. It was in this light that the SPD decided to compromise on a Bundesrat with lesser powers. On what the framers considered a rather limited list of subjects, the Bundesrat would have an absolute veto. On al1 other topics it would hold only a suspensive veto; such a veto passed by either an absolute or two-thirds majonty in the Bundesrat could be

overridden by a corresponding majority in the first chamber, the Bundestag. Thus it was that two of the second chamber design issues, the method of selection of members and its legislative powers, were settled, in principle, via a single compromise. The debate over the third design issue, the composition of the Bundesrat, demonstrates the key influence of Land interests in the negotiations.12 in general, social democratic parties tend not to favour territorial non-majoritarianism, as they regard the primary societal cleavage to be socio-economic, not temtorial. Thus, one would anticipate that, if party influence were decisive, a social democratic party would favour a design for a second chamber which would downplay the temtorial non-majoritarian role.

At first glance, therefore, it is surprising that it was the SPD that supported the more non- majoritarian mechanism of equal representation of the Liinder, while the CDUKSU favoured the less non-majoritarian mechanism of representation according to population. This pattern of preferences is explicable, however, if one looks to their temtorial bases of support: the CDUKSU was dominant in the larger Lander, while the SPD predominated in the smalIer Lander. The strength of traditional Gerrnan ideas that representation should somehow reflect size and power may have been a factor in the final compromise on the composition of the ~hamber.'~Again, this tradition militated against the replication of the U.S.mode1 of equaI representation of constituent units. In the end, al1 Lander were given a minimum of three votes, with those having more than two miIlion inhabitants receiving four votes, and those having six million or more inhabitants receiving five votes.8 Having thus established the basics of the Bundesrat's design, we now turn to a brief discussion of the roles of this second chamber. That the German Bundesrat was meant to have a Land-representation role is abundantly clear. While in the cases of the older federations there is debate on this point, there can be little dispute about this in the German case. The historical tradition in which the Bundesrat falls is one of confederal design; Le., control of the centre by the constituent units. In addition, one purpose of the federal design was to prevent a repetition of the disastrous centralisation of the Nazi era by constitutionally dispersing power to the Lander. In the end, the method of selection of the Bundesrat's membership leaves little room for misinterpretation of this aspect of the chamber's function. The Bundesrat's IegisIative review role, although intimately linked with its Land- representation role, can be delineated by considering the legislative process. Legislation originating with the federal government must initially be sent to the Bundesrat for a first round of deliberations. 14 The bill then goes to the Bundestag, dong with the comments and suggested amendments from the Bundesrat. After three readings and passage by the Bundestag, the legislation goes back to the Bundesrat for a second round of deliberations. Legislation rejected at this stage goes to a conference committee of the two houses. It is at this point that the distinction. noted above. between legislation requiriiig the

Bundesrat's consent, and legislation over which it has only a suspensive veto, has its effect. In the former case, if the conference committee cannot agree the iegislation is

Post-unification these weightings are: three votes for Lander with less than 2 million inhabitants; four votes for those with between 2 and 6 million inhabitants; five votes for those with between 6 and 7 million inhabitants; and six votes for those with more than 7 million inhabitants, killed; in the latter, if there is no agreement the Bundestag may ovemde the Bundesrat by passing the legislation by a corresponding majority. The Bundesrat was given the right to initiate legislation, but this right has not been wideIy used. The strength of the Bundesrat is not in its initiation of legislation; rather, it lies in the fact that al1 participants in the parliamentary system know that the views of the Lander, as expressed through the Bundesrat, must be taken into account. The particular role of the Bundesrat as a site for intergovernmental relations stems in large part from the overalI organisation of Gerrnan federalism. We discuss this in depth below in relation to the division of powers. It is only necessary to note here that because of the distinctive way in which German federalism divides iegislative and administrative responsibilities between the two orders of government, intergovernmental interdependence is heightened. Thus, it is crucial that there exist an institutionalised process for intergovernrnental relations. The Bundesrat was designed to be the pivota1 institution for fulfilling this role, and the intergovernmental relations role must be regarded as of at least equaI importance to the other functions of the chamber. In summary, several factors were critical to the design of the Bundesrat. First, the historicaiIy tned method of Lander participation in, and supervision of, the federal order of govemment was considered preferable to further experimentation with new rnode~s.'~No other national political institution in Gennany had a record of continuity that matched that of the Bundesrat. l6 Second, the simple fact that the Land administrations were the only effective domestic governments of the Gerrnan territory at the time of the drôfting of the Basic Law put thern in a strong position to see that their interests were protected.17 The Land administrations identified a commonality between their institutional interests and the overall interests of their tenitories; this bolstered their self-confidence during the negotiations and provided a base for a strong temtorial non-majoritarian efement in the design of the federation. Third, the recent experience of unrestrained partisanshi p under the Weimar

Republic provided an instructive exarnple of the dangers of the dominance of parties. l8 This fact provided a powerful disincentive to adopt a mdel which would facilitate un fettered party dominance. Fourth, however, the ethos of the political parties did act as a majoritarian countenveight to the tendencies of the Land governments.'9 Neither of the major parties saw itself as king restricted to pursuing the interests of the Lander alone. These parties iooked beyond Land boundanes to the construction of a single country, and thus expressed what may be thought of as a 'national interest'. In this sense, one may conceive of a creative tension between the Land govemments and the new political forces, as represented by the parties, as king the central dynamic of the process of federation. Fifth, extemal influences played a part. The Allied overseers mandated a federal design for the reconstituted Geman state. In doing so they set the frarnework within which it was highly likely a bicmeral design would emerge. The other factors we have noted operated within this environment to determine the specifics of the second chamber's design. As is clear from this list, both path dependency and histoncal learning were in fiuential in the design of the Bundesrat. The fact that the Allied governors chose to constmct the new German state on the basis of the Lander put the Lander governments in the position to influence the institutional outcome. Meanwhile, the historical legacy of Weimar was an ever-present lesson as regards the need for dispersion of legislative authority. EVOLUTION The Bundesrat that resulted from the constitution-building process was a political compromise which represented a balance arnong the interests of the large and small Lander; between Land influence and party influence; among the pro-centralist and anti- centralist factions of the political parties; and between the German political actors and the Allies. We now consider the institutional and social influences that have affected the Bundesrat's subsequent development. Institutional Factors The single, overwhelrning institutional factor in the development of the Bundesrat is its method of selection. The effects of this factor pervade the system, moulding the effects of al1 other institutional factors. Because the effects of the method of selection are thus inextricably intertwined with al1 other factors, we wiI1, in this case, not treat it separately; rather, we will show how it modifies the effects of the other factors we consider. These inctude: the division of powers, the parliarnentary system, and the Federal Constitutional Court. Two aspects of the division of powers have had major effects on the development of German federalism. First, the Basic Law divides legislative junsdiction on the basis of an exclusive list of federal powers and a list of concurrent powers, with the residual power rernaining with the Liinder?' As in the other federations that have utilised this method of dividing legislative powers, in the FRG this has facilitated the expansion of federal authonty: as the federal govemment has gradually expanded its legislative domain, the residuum left to the Lander has been eroded."

A special category of concurrent powers in the Basic Law further facilitates federal dominance. The federal govemment has the right under its 'framework' powers to restrict the exercise of Liinder legislative authority, to a limited extent, in certain fields. In these fields, the fedenl government has the right to enact framework legislation aimed at providing a degree of uniformity of action across the federation; within these parameters, the Lander have the right to enact customised, detailed laws. A second aspect of the division of powers that has affected the evolution of German federalism relates to the distn bution of administrative authon ty. In the Anglo- Amencan federations, the general principle is constitutionally mandated legislative- adrninistrati ve coincidence." That is, the order of govemment that has legislative jurisdiction over a policy area also has administrative responsibility for that area. In German federalisrn, by contrat, the Land governments are large1y responsible for the administration of legislation, whether that legislation onginates at the federal or Land

level. Thus it is possible to have a relatively high degree of legislative centralisation. while retaining a high degree of administrative decentralisation. Constitutional protection of the administrative role of the Lander serves as a bulwark against thorough- going centralisation of the federation. That is, if the central legislative system were allowed to form direct links with the regional administrative system, bypassing the Land governments, the result would be a thoroughly centralised federation. It is the pivotal position of the Lander-controlled Bundesrat, in combination with this distinctive method of apportioning legislative/administrative responsibility, which mitigates what would otherwise be a highly centralising division of powers. The Liinder have been, to some extent, willing to allow legislative power to fiow to the federal suovernrnent in exchange for an ever-expanding role for the unde es rat.'^ This point is of critical importance. In most other federations the centralisation of legislative authority represents a commensurate and unequivocal loss for the constituent-unit govemments. However, in the German case, the Gnder maintain, in two ways, a degree of control over policy areas that are ceded to the federal govemment. First, al1 federal legislation must be referred to a second charnber controlled by the Lander govemments, where it is subject to either a veto or a suspensive veto. Second, the Lander retain administrative control, and thus implementational flexibility, over virtually al1 policy areas, including those that have accumulated at the federal level. ParadoxicaIly, therefore, in the German case, increasing centralisation of legislative authority at the Bund level has led to a commensurate increase in Land government influence on federal poli tics, via their incorporation in the Bundesrat. The framers anticipated tliat the limited Iist of areas over which the Bundesrat had an absolute veto would not affect most legislation." That is, they expected that the bulk of federal legislation would be subject only to the suspensive veto power of the second chamber.

However, as the Lander have ken willing, because of their control of the Bundesrat, to countenance the expansion of the legistative compass of the federal govemment, that legislation has increasingl y trenched on areas of Lander administrative responsi bi li ty. Over time, more than haIf of al1 legislation passing through the federal parliament came to fa11 within the absolute veto powers of the Bundesrat. Thus it is that the method of selection of the Bundesrat fundamentdly modifies the effects of a division of powers which would otherwise gradually subordinate Land governments. The parliamentary form of govemment is a third major institutional factor in the development of German federali~m.~As in other parliarnentary systems, in the Federal Republic the executive has tended to dominate the legislature. As in the other parliarnentary federations that have utilised parliamentarism within each order of govemment, this has occurred in both orders of governance. Thus, parliamentarism in the FRG has facilitated, as elsewhere, that pattern of intergovernmental relations referred to as 'executi ve federalism'. Unlike in the other parliarnentary federations, however, because of the method of seIection of the Bundesrat, the growth of executive federalism has served to strengthen, not sideline, the second chamber. That is, because selected members of the executives of the Liinder constitute the second chamber, the mechanism of executive federalism is institutionalised within federal institutions. It is true that intergovernmental relations occur via other fora; both direct contacts between Bund and Land leaders, and arnong Land leaders, are integral parts of German executive feden~isrn.~'However, as interdependence has grown, necessitating ever increasing contacts among governments, the Bundesrat's position, as the constitutional expression of executive federalism. has been enhanced. The method of selection of the Bundesrat membership has also been effective in mi tigati ng the prevalence of party discipline in the German parliamentary system." In the Bundestag, as in the first chambers of the other parliamentary federations, partisanship is the primary determinant of voting behaviour. However, in the Bundesrat, while it is tnie that party influences have an effect, particularly when the majorities in the two chambers di ffer, partisanship has not overrded the Land representation function of the chamber. This point is worthy of emphasis. Lembruch has pointed out that with the Land elections in 194647, even before the advent of the FRG, the party system had begun to polarise, with the CDUKSU and the SPD as the two leading ~~~onents.'~In both of the other two parliamentary second chambers we have considered, the federally appointed Canadian Senate, and the directly elected Australian Senate, such polarisation has led ro the predominance of party interests over constituent-unit interests in the second chamber. In the Bundesrat this has not ken the case. As Lembruch points out, regrettably in his view, in Germany the majontarian instincts of the political parties have been fmstrated by the federal system. particularly via the interlocking mechanisms typified by the institutional position of the ~undesnt.'~The multi-level bargaining that is necessitated by the presence of a second chamber composed of e-r oficio mernbers of constituent-unit governments cross-cuts the party influence of a parliamentary system; it is, in short, temtorial non-majoritarianism in action.

In regard to parliarnentarism, then, it can be concluded that the Bundesrat has had a pervasive effect in bolstering non-majoritariani~m.~~That is, although the FRG embraced the parliamentary system. and thus has been subject to the majoritarian ramifications of that choice, the Bundesrat has ken a substantial institutional check. As a powerful second chamber in a parliamentary system it has acted as an instrument of non-territorid non-majoritarianism; however, because of its method of selection, it has stressed territorial non-majoritarianism. The Federal Constitutional Court has been an institutional factor that has specifically affected the development of the Bundesrat. As we have noted, the Basic Law distinguishes two types of bills: those which require the consent of the Bundesrat, Le., those over which it has an absolute veto; and those to which the Bundesrat may object, but which objection may be ovemdden by a corresponding majority in the Bundestag. In general, to faIl in the former category a bill has to affect the interests or duties of the Lander, or lay down administrative procedures to be followed in their implementation of federai Iegislation. From the beginning, the Bundesrat took an expansive view in its interpretation of which bills fell within these parameten." It took a liberal view of what constituted an 'administrative procedure', and regarded that, if even a single clause of a bill fell within the ambit of its veto power, then it had the right to veto the bill as a whole. The Federal Constitutional Court has generally supported the Bundesrat's interpretation of the arnbit of its veto? In several early, precedent-setting cases, the

Court upheld the Bundesrat's position. Only in cases where it has appeared that political parties were attempting to expand further the Bundesrat's power for partisan purposes has the Court moved to lirnit the veto power of the second cha~nber.~' In addition, the Court has provided a general support for federalism via the promulgation of the pnnciple of federal ~ornit~.~'This pnnciple was held to create, for the federal govemment in its relations with the Lander, and for the Lander in relations with each other and with the federal government, a constitutional duty to cooperate sincerely in reaching common understandings. In effect, this has meant that, even where the Bundesrat has only a suspensive veto, the federal govemment prefers to be seen not to simply ignore and ovemde the Bundesrat's objections. Thus, through general support for federalism via the principle of federal comity, and through specific support for the Bundesrat via its liberal reading of the second chamber's veto power, the Court has generally been an institutional support for the Bundesrat. Social Factors As the modem German Bundesrat has existed for only a IittIe over 50 years, the changes in the social milieu with which it has had to cope have been less dramatic than those faced by older second chambers. Nevertheless, the social environment has affected the development of German federalism in general, and the Bundesrat in particular. We consider the following types of factors: demographic, stmctural, and ideolo@cal. Demography has ken an important factor in the development of German

federalisrn. West Gemany exhibited a high ciegree of cultural unifo~nit~.~~It is tme there have been some regional variations in historical tradition and political culture in German society; however, no Land boundary defines a distinct religious, ethnic or

linguistic group. In fact, it may be recalled that the majonty of the Liinder are not

historically defined units, having only had their present boundaries since 1949. This cultural homogeneity across temtorial di visions is the basis of one of the fundamental premises of the FRG: the achievement of 'uniform living conditions' throughout the country. The achievement of a common standard of living across the federation has been a stated goal in the FRG since fedenti~n.~~Indeed, the achievement of 'uniformity of

living conditions' was a principle entrenched in the Basic Law until 1994. It was

considered a guiding tenet of the West German state that, although it was organised fedenlly. al1 institutions should be oriented toward ~niformit~.'~The primary impetus behind this philosophy was the belief that the general population, regardless of their temtorial position, had essentially undifferentiated demands and expectations in regard to social conditions. Uniformity becarne a powerful nom permeating al1 relationships between, and actions of, both orders of govemrnent. It is in the context of the drive to create what has been termed "the unitary federal stateW3*that the operation of a number of the features of the German federal system are best understood. The division of legislative/administrative responsibilities, the wide area of concurrent legislative jurisdiction, and the constitutional provision for federal frarnework legislation, together provide a constitutional environment facilitative of uniforrnity. Federal frarnework legislation, for exarnple, can provide a basic legislative standard across the country, while Land governments are allowed a certain latitude for customisation of implementation via their administrative contr01.'~ The extensive system of financial equalisation between ncher and poorer Ender has also had its philosophical roots in the achievement of unifonn living standards across the FRG. Post-unification, the Constitutionai Refonn Act of 1994 substituted the term 'equivalence of living conditions' for 'uniformity of living c~nditions*.~~Reunification has introduced a level of temtorially-defined cultural difference that did not exist previously. Even so, it cannot be said that these differences constitute the sort of deep societal cleavage that exists in Canada. Thus, the reunified Gemany can still be said to bear better a resemblance in this regard to the U.S. or ~ustnlia." It does not appear that the modified constitutional wording is reflective of a serious diminution of the nom of uni formi ty.4' Several structural factors have played a role in the development of German federalism. First, dunng the 1WOs, the federal government experienced an expansion in its areas of responsibility in the federal system, as the occupying powers transferred responsibilities to the FRG? As these included areas traditionally assigned to the federal order of govemment, such as foreign and defence policy, they did not represent a direct loss to the Lander, but did enlarge the Bund's legislative compass. As extemal relations, particul arl y as regards the European Union (EU), have affected relations between the federal government and the Lander, and thus indirectly the Bundesrat, it is worth considenng how this policy area has ken rnanaged.u Since its inception in 1957, the Erhas steadily expanded both the breadth and depth of its functions. This extension has not so much involved a transfer of legislative responsibility from the member states to the EU, as it has meant the acquisition by the EU of CO-responsibilityand CO-determinationof collective policy-making over an ever expanding sphere. The challenges to the Lander in this process are two-fold.'* First. a number of the policy areas in which the EU is now involved are ones which, according to the German domestic allocation of respon~ibilities~fail within the legislative competence of the Liinder. The extension of EU competence in these areas effectively limits the freedom of the Lander to pursue policy autonomously within their fields of constitutional jurisdiction. Second. in the most important decision-making body of the EU, the Council of Ministers, it is only the federal govemment that has ken represented. Thus, the federal government participates in policy-making at the EU level in regard to areas which faIl under exclusive Lander junsdictiün at the domestic level. This opens a possibility that the federal govemment may attempt to accomplish goals it could not pursue internally by doing an end ntn around the Ender via the EU. To counter these challenges, the Lander have consistently attempted to use their presence in the Bundesrat, a federal institution. to insert themselves into the federal government's EU policy-making. Intemational treaties are subject to the Bundesrat's veto or suspensive veto mechanisms, depending on the substance of the treaty, in the same way as are ordinary bills.46 Thus, the Lander have ken able to extract concessions from the federal govemment in retum for EU treaty ratifications. In the Act ratifying the original Treaty of Rome of 1957, the federal govemment was obliged to make available to both the Bundestag and the Bundesrat information on EU rnatter~.~'Consequently, the

' The organisation presently referred to as the EU has had several officia1 appellations over its history. While acknowledging this fact. for the sake of simplicity it will be referred to only as the EU in this paper. Bundesrat has ken able to make informed recommendations as to the Gerrnan position on EU matten; while these recommendations have not been binding on the federal government, the principle of federal comity enjoins the federal government to take them into account. The Lander used the opportunity provided by the need for Bundesrat consent to the ratification of the Single European Act, in 1986, to negotiate an extension of the Bundesrat's participation in federal policy-making in regard to the EU? The federal government was obhged to secure the opinion of the Bundesrat before it agreed to EU decisions, to take such opinions into account in negotiations, and, if it voted in a way that contradicted the Bundesrat view, to explain and justify that decision. The ratification process for the Maastricht Treaty provided the Lander, via the

Bundesrat, with a further opportunity to suengthen their involvement in foreign affairs in general, and EU matten specifically."9 In this case, the Basic Law itself was amended. thus constitutionally entrenching Bundesrat involvement. In effect, the changes state that: in areas of federal jurisdiction, the Bundesrat's opinion shall be taken into account; in areas of concurrent jurisdiction, the opinion of the Bundesrat shall prevail within the federal decision-making process; and in areas of exclusive Land junsdiction, "the exercise of the nghts of the Federal Republic of Germany... shall be transferred by the Federation to a representative of the Lander designated by the unde es rat."'^ The Bundesrat has made other institutional adjustments in order to better deal with EU concerns. In 1988, for exarnple, the Bundesrat established the EU Chamber, a special legislative comrnittee to consider matters relating to the EU. Composed of one member of each Land delegation, who commands the entire complement of Land votes, the EU Chamber is empowered to make decisions which are binding on the Bundesrat as a whole.'' The overall result is that, because of the institutional position of the Bundesrat, the Lander have been able to maintain their foreign policy role in the face of evolving external conditions. The foreigq policy case also provides a useful gcneral example of the way in which the Lander have used the Bundesrat to manage changing circumstances. That is, they have balanced the centralisation of responsibilities at the %und level, where necessary, with a strengthened role for the central institution that they control. Consequently, the role of the Bundesrat, as the institutional representative of the Lander at the federal level, has ken maintained and enhanced.

A second structural factor in the development of German federalism is the pattern of economic development. West Gemany exhibited a very high degree of intemal economic integration.*' This economic integration fostered a logic of legislative

centralisation in order

jurisdiction became 'Joint Tasks' with the federal govemment as a result of a 1969

consti tutional amendment; the purpose was to legalise the joint financing of some areas of Land responsibility which not al1 Liinder could afford to fund uniformly. Such adjustments had the unintentional consequence of allowing the Bund to use the 'golden leash' of funding to convince poorer finder to acquiesce in greater federal involvernent in areas of concurrent jurïsdi~tion.~~ Reunification produced a rnuch less integrated economy in the FRG, in the sense

that it placed two non-integrated economies in a single state. However, reunification has been ci ted as a possible source of greater centralisation, not decentralisation. With reunification, the degree of regional variation in development has increased drastically. Thus the possibility of centralisation via the 'goIden leash' is heightened. As well, reunification itself resulted in some centralisation of legislative re~~onsibilities.~~ Ideological trends in the period from the 1950s to the 1970s tended to focus attention on the federal govemment. Part of the impetus for the bestowing of increased economic policy powers on the Bund in the late 1960s was to facilitate Keynesian macroeconomic management ~trate~ies.~~The actions of the SPD, both at the federai and Land level, encouraged the building of a national welfare state. The shift to more decentralist ideological trends since the 1980s has not detracted from the Bundesrat's role in the German political system. As we have noted in the case of EU policy, when the Lander become more assertive of their powers, they often use the Bundesrat as one of their institutional instruments. It is emblematic of the unique position of the Bundesrat that no matter which way the ideological wind is blowing, it remains at the centre of the stonn. The Contemwrarv Bundesrat

The tension between parliamentary government and federalism continues to be played out in the German federal system. Dunng periods when there are differing party majorities in the Bundestag and Bundesrat, the second chamber sometimes acts as an alternative opposition.s7 However, party effects are being, if anything. increasingly cross-cut by Land interests. Increasing financial pressure in the 1980s placed greater strain on inter-Liinder barpaining over financial equalisation.58 As well, new parties. such as the Greens, met with electoral success; thus, the ability of the traditional parties to form vertical governing/opposing party blocs was further disrupted. In combination, these influences had the effect of strengthening the emphasis on Land interest over party interest. In the post-unification period, both of these trends were made even more salient: economic disparities deepened, and party diversity increased. The result has been even greater independence of the Land governments from federal party influence; the consequence is less party influence in the und es rat.^^ In addition to the constitutionally mandated temtorial non-majoritarianism of the Bundesrat, there has developed a supportive institutional culture. There is extreme reluctance on the part of the Lander to pass legislation over the serious objections of even a single and." There is thus a nom of negotiation to find a unanimously acceptable compromise, even if this means that agreement can only be achieved on the basis of the Iowest common denominator. While such noms may have questionable policy consequences, they svengthen even funher the territorial non-rnajoritarian nature of the Bundesrat's operation. In the aftermath of unification there was felt to be a need to adjust the constitutional bais of the federation- The western Lander believed that the addition of the economically-dependent eastern Lander and the ongoing process of EU integration put them in danger of losing ground to the federal govemment.61 The Constitutional

Refom Act of 1994 was the answer to these concerns. Among the changes were the strengthening of the Bundesrat's role in EU policy-making, the placing of a greater onus on the federal government to justify its use of its concurrent and framework legislative powers, additions to Under administrative powers, and expansion of the areas over which the Bundesrat has veto pwem6' While the effects of these changes are complex, what is clear is that the position of the Bundesrat was further enhanced; indeed, it has been concluded that "it is.. .not the Lander as such but the Bundesrat which has ernerged as the real 'winner' in the constitutional reform process."63 There are those who cal1 for further reform of the Bundesrat as part of a wider reform of German federalism: Leonardy, for example, has argued for the composition of the Bundesrat to be further adjusted to make it more proportional to population.61 In general, however, such changes are not a matter of urgent political debate in Germany. Patzelt points out that periodic reform proposais based on discontent with 'divided government', when there are opposing partisan majorities in the first and second chamben, disappear as quickly as partisan majorities change? As well, the chamber has dernonstrated its ability to adapt to changing conditions, such as the growth in importance of the EU; thus, there is felt to be littIe need for fundamental reform. Finally, because the Bundesrat does not have a particularly high public profile, institutional inertia is to some degree a factor in the paucity of serious interest in its reform. There can be no doubt that the Bundesrat continues to act as an agent of territorial non-majoritarianism in the Geman federal system. The institutional linkage that the Bundesrat provides between Land and Bund facilitates intergovernmental bargaining on the full range of policy areas? It is the Bundesrat that provides a constitutionally mandated venue for the interaction of temtoriai, non-majoritarian influences, and non- territorial, majontarian, party influences. It is in the interaction between the Bundesrat and the Bundestag that de facto 'grand coalitions' are formed on policy issue^.^' The result is a dynarnically baianced, consensud style of democracy, encompwsing both temtorial and non-temtorial non-majoritarianism. CONCLUSION The initial design of the Bundesrat provided for an institution that expressed non- majoritarianism in two ways. First, it was unarnbiguously designed to be the chamber for the representation of Land interests at the Bund level. As a chamber whose members are ex oficio delegates of the governments of the Lander, there can be no mistaking the intent of the founders of the FRG on this point. Second, the Bundesrat was desipned to be a chamber of legislative review. It was, in this sense, designed in the parliamentary tradition of bicameralism. However, because of its method of selection, the Bundesrat seamlessiy integrates its legislative review and regional representation roles. It is, therefore, the institutional instantiation of both temtorial and non-territorial non- majoritarianism.

The Bundesrat has an additional role as the constitutionally established site for intergovernrnental relations. The distinctive method by which German federalism di vides legislative and administrative responsibilities between the two orders of govemment heightens intergovernmental interdependence. It is the Bundesrat that provides a pivota1 venue for the operation of intrastate federahsm: the Land governmetzrs are able to bring regional issues directly into the federal parliamentary arena. We have identified a number of institutional and social factors which have been important in the origins and evolution of the non-majoritarian characteristics of the German Bundesrat. In regard to its origins, four major factors were identified as king critical to its design: the histoncally proven method of Ender participation in, and supervision of, the federal order of government: the fact that the Land administrations were the only effective domestic governments of the German territory at the time of the drafting of the Basic Law; the recent experience of unrestrained partisanship under the Weimar Republic; and the creative tension between territorial interests, as represented by the Land govemments, and non-temtoriai interests, as represented by the parties. As is clear from this list, both path dependency and historical learning were influential in the design of the Bundesrat.

We have identified four major institutional factors which have affected the evolution of the Bundesrat. These include: the method of selection of members; the division of powers, in regard to both the distribution of exclusive, concurrent, and framework powers, and the allocation of legislative versus administrative responsibility; the parliamentary form of government; and the institution of the Federal Constitutional Court. These factors have contributed to the development of the Bundesrat as the crucial institutional site for the interaction of legislators and administrators, as weIl as partisan forces and tem torial interests. We have in addition identified three types of social factors which have affected the evolution of German federalism: demographic, structural and ideological. The primary demographic characteristic of the German federation is its high degree of cultural homogeneity, which has engendered the attainment of uniform living standards as a societal goal. Structura1 factors include the earl y expansion of the Bund's legislative compass, particularly in connection with the development of the EU; and the integrated pattern of the FRG's economic development. The most important ideological element has been identified as the centralist bias of macroeconomic policy stances of the post-war period. We have concluded that the contemporary Bundesrat has sustained its position as a crucial site for the representation of Land interests. Constitutional reforms in the post- unification period have only served to strengthen the Bundesrat's position. The Bundesrat continues to bring a strong element of consensualism to the German system of government. Its unique method of selection ensures it fulfills a territorial non-majoritarian role; meanwhile, as part of a bicarneral parliamentary system, the Bundesrat provides a site for the interaction of party and temtorial interests, thus also inserting a non-temtorial non-majoritarian element into the governance of the Federal Republic of Gerrnany. NOTES

' Werner J. Patzelt, 'The Very Federal House: The German Bundesrat," in Samuel C. Patterson and Anthony Mughan, eds., Senates: Bicameralism in the Contemporary World (Columbus Ohio, USA: Ohio State University Press, 1999), 62-64. Gerhard Lehmbruch, "Institutional Linkages and Policy Networks in the Federal System of West Germany," Publirts 19 (1989), 226. ' Patzelt, 'The Very Fedenl House," 63-64. -1 WoI fgang Renzsch, "German Federalism in Histoncal Perspective: Federalism as a Substitute for a National State," Prtblirts 19 (1989), 24-3 1. 5 Renzsch, "German Federalism in Historical Perspective," 26-27. 6 Peter H. Merkl, The Origin of the West Gennan Republic (New York: Oxford University Press, 1963)-66. 7 Ibid., 66-70. Ibid.. 69-70. 9 Ibid., 70-7 1.

Io Ibid., 7 1. ' ' Ibid., 71-73. " Ibid., 72. l3 Ibid. 1-1 Patzelt, 'The Very Federal House," 75-79. 15 Merkl, The Origirz of the West Gennarz Repirblic, 7 1-72. 16 Lehmbruch, "Institutional Linkages," 226-27. 17 Nevil Johnson, ''Territory and Power: Some Historical Deterrninants of the Constitutional Structure of the Federal Republic of Germany," in Charlie Jeffery, ed., Recasrirrg Germari Federalism: The Legacies of C/ri~~cariori,(London: Pinter, 1999). 3 1-32. 18 Merkl, The Ongin of rlze Wesr Gennari Reprtblic, 7 1-72. 19 Johnson, 'Temtory and Power," 32. 70 Ronald L. Watts, Cornparing Federal Systems (2nd ed.; Montreal and Kingston: McGill-Queen's University Press, 1999), 37-39. " Uwe Leonardy, "The Institutional Structures of Geman Federalism," in Charlie Je f fery , ed., Recasting Gennan Federalism: 13te Legacies of Unijàcation, (London: Pinter, 1999), 12-13. --77 Ronald L. Watts, "Gennan Federalism in Comparative Perspective," in Charlie Jeffery, ed.. Recasting Gennan Federalism: nie Legacies of Unification. (London: Pinter. 1999). 272.

" Renzsch, "Gennan Federalism in Historical Perspective," 3 1. " Merkl . ï7te Ongin of the West Germon Republic, 73. L5 Watts, "German Federalism in Comparative Perspective," 372-74. '' Leonardy , "The Institutional Structures of German Federalism." 7- 10. " Watts. "German Federalism in Comparative Perspective." 274-75. " Gerhard Lembruch, "Party and Federation in Germany: A Developmental Dilemma," Govenzrnerzr and Opposirion 13 ( 1977), 158.

'9 Lembruch, "Party and Federation in Gemany," 173-77. 3O Watts. "German Federalism in Comparative Perspective," 276-77.

3' Philip Blair and Peter Cullen. "Fedenlism. Legalism and Political Reality: The Record of the Federal Constitutional Court," in Charlie Jeffery, ed., Recastirig Gern~an Federalism: nie Legacies of Unifcarion. (London: Pinter. 1999). 130-3 1. '' ibid., 130. " Ibid., 13 1. 34 Ibid., 132-33. 3 5 Watts, "German Federalism in Comparative Perspective," 268. 36 Uwe Leonardy, "German Federalism Towards 2000: To be Reforrned or Deformed?," in Charlie Jeffery, ed.. Recasring Germon Federalism: nie Legacies of Lltzïjkarion. (London: Pinter, 1999), 297. 37 Hartmut Klatt, "Forty Years of German Federalism: Past Trends and New Developments," Pitblius 19 (1989), 186-87.

" Hartmut Klatt, "Centralizing Trends in West Geman Federalism, 1949-89," in Charlie Jeffery, ed., Recastirig Germon Federalisnt: nie Legacies of Un~fication.(London: Pinter, 1999), 42.

39 Ibid. JO Leonardy, "German Federalism Towards 2000," 297.

" Watts, "German Federalism in Comparative Perspective," 268.

'" Leonardy. "German Federalism Towûrds 2000." 297. Simon Bulmer, "Efficienc y, Democracy and Post-Uni fication Federalism in German y: A Cntical Analysis." in Charlie Jeffery, ed., Recasring Germarl Feedralism: The Legacies of Unificarion, (London: Pinter, 1999), 3 16. " Watts, "German Federalism in Comparative Perspective," 270-7 1. '" Rudolf Hrbek, 'The Effects of EU Integration on German Federalism," in Charlie Je f fery , ed., Recasting Gennan Federalisnt :The Legacies of Unificatiotz. (London: Pinter, 1999), 218-19. 46 Patzelt, 'The Very Federal House," 80. 17 Rudol f Hrkk, "Gerrnan Federal ism and the Challenge of European Integration," in Charlie Jeffery and Peter Savigear, eds., Gernran Federalisrn Today (Leicester, UK: Leicester University Press, 199 1), 89. 48 fibek, 'The Effects of EU Integration on German Federalism," 221. 19 Patzelt, "The Very Federal House," 80-8 1.

50 Charlie Jeffery, "Appendix: Federalism in the Basic Law," in Charlie leffery, ed.. Recasfing Gennan Federalisrn: ï7te Legacies of Unificatiort. (London: Pinter, 1999), 344. Patzelt, "The Very Federal House," 7 1-72.

" Watts, "Geman Federalism in Comparative Perspective," 268-69. 53 Bulmer, "Efficiency, Democracy and Post-Unification Federalism in Germany," 3 16- 17. 51 Leonardy, "The Institutional Structures of German Federalism," 16. 55 Bulmer, "Efficiency, Democracy and Post-Unification Federalism in Germany," 3 19. j6 Ibid., 3 16. 57 Patzel t, 'The Very Federal House," 84-86. 58 Roland Sturm, "Party Cornpetition and the Federal System: The Lembruch Hypothesis Revisi ted," in Charlie Jeffery, ed., Recasting Gernlan Federalisnl: The Legacies of Um$catiotr, (London: Pinter, 1999), 20 1. 59 ibid., 204-05, 213.

" Fritz W. Scharpf, "The Joint-Decision Trap: Lessons from German Federalism and European In tegration," Public Adrnitlistrafiort 66 (1988), 246. 6 1 Hans-Peter Schneider, "German Unification and the Federal System: The Challenge of Reform," in Charlie Jeffery, ed., Recasfing Gemtati Federalism: The Legacies of Unification, (London: Pinter, 1999), 69-70.

" Ibid., 75-79.

64 Leonardy, "Gerrnan Federalism Towards 2000," 293-94. Patzelt, 'The Very Federal House," 87-88. 66 Ibid., 87. 67 Hans-Georg Wehling, "The Bundesrat," Pubfius 19 (1989). 63. CHAPTER SIX CONCLUSIONS

INTRODUCTION This conclusion of the study pulls together the case study analyses. It will compare and contrat the findings from each case study, in an attempt to draw out general themes and discernible patterns. Throughout, we will place the findings in the context of the Iiterature. We will show that, in regard to each of the countries considered, the United States, Canada, Australia, and Germany, both non-territorial and temtorial non- rnajoritruianism were incorporated in the design of the second chamber. However, differences in the political circumstances produced variations in the degree to which non- majoritarian roles were institutionalised. We will note that three categories of factors were important in the specific design of each of these second chambers. These three are: path dependency, historical learning, and external influences. In regard to the evolution of the second chambers included in the study, we will identify three institutional factors that have been important in the development of the second chambers in al1 four cases. These are: the method of seiection of the members of the second chamber, the form of the executive, and the division of powers. In addition, we will note that we have identified three peneral categories of social factors which have affected the development of the second chambers in the four case studies. These have included structural, demographic, and ideological factors. We next turn to the contemporary roles of these second chambers. We will note that al1 four have been able to continue to insert some level of non-temtorial non- majoritarianisrn into their govemmental systems via their legislative review role. Next. in regard to the role of these chambers as the institutional instantiation of temtorial non- majontarianism, we will note that the evidence indicates that the scope of the chambers' ability to fulfill this roie is closely related to its method of selection. Finally, we will suggest what additional work might be warranted to further extend the results of this four-country study. ORIGINS In al1 four cases, legislative review was an explicitly intended role for the second chamber. All these second chambers were designed to fulfi11, to a degree, a non- territorial non-rnajoritarian role. In the early cases, the U.S. and Canada. this role was entwi ned wi th aspirations that the second chamber perform an anti-democratic role. In the later cases, Australia and West Germany, the anti-democratic element is absent. In these cases it is starkly clear that one reason for the establishment of a powerful second chamber was the tempering of majoritarianism. In al1 cases, territorial non-majoritarianism was incorporated in the design of the second charnber. There were similarities in the political contexts in which these second chambers were formed. In al1 cases, the interests of the populous and non-populous constituent units had to be conciliated; in general, territorial non-rnajoritarianism was deepened as a concession to smalier constituent units as the pice of federation. However, in addition there were country-specific political circumstances which affected the way in which territorial non-majoritarianism was instantiated in the second chamber. In some cases the degree to which temtorial non-majoritarianism was entrenched was related to the degree to which the second chamber was considered to be the defender of the constituent units' interests. Most obviously in the Canadian case, but also in the

Australian case, it appears there were differences of opinion arnong the founders on this point. To the degree that the designers believed that other elements of the governmental system woutd cornplement the second chambers' constituent-unit protection role, they were willing to accept a less stringent temtorial non-majoritarian design. The question of the degree to which the second chamùer was meant to have a role as defender of al1 constituent units against the feared expansive tendencies of the federal

government, as opposed to the degree to which it was meant to defend srna11 states from large, may aIso have had an effect. In the U.S. case, both elements appear to have ken important: thus, the frarners opted for selection of Senators by state legislatures to fulfill the first aspect of its role, and equal state representation as the means to fulfill the second aspect. in Canada, fear not of a strong but of a weak central govemment put the selection

of Senators in the hands of the federal Prime Minister, this fear was also instrumental in the smaller provinces' acceptance of equal 'sectional', rather than equal provincial, representation. In Australia, the founders appear to have ken so confident that they were designing a federal government which would only be the servant of the states that they saw no difficulty in substituting popular-election for state-legislature selection of Senators; however, the fears of the small states were sufficient to force the acceptance of equal state representation. In Gerrnany, the method of selection of members of the Bundesrat makes sense in that there was a general fear of the creation of an overly

centralised federal government. The feus of the smaller states vis-à vis the larger were insufficient to counter the strength of traditional German ideas that representation should somehow reflect size and power; thus the decision that the composition of the Bundesrat would be related to Land population. In the context of the roles intended for these institutions, Our analysis has indicated that three categories of factors were important in the initial design of these second chambers. These include: path dependency; historical leaming; and external influences. The concept of path dependency, that subsequent decisions are constrained by earlier decisions, runs throughout our four cases. As anticipated, the effect of this factor is the encouragement of the replication of earlier institutional patterns- In the U.S., bicameralism was favoured because al1 delegates, except those from Pennsylvania, were

141 from states that had chosen bicameral designs for their own Iegislatures. In Canada, the idea that the Senate should be composed on the general pnnciple of equality in numbers crystallised as equal representation of 'sections', represented by 24 members each, in part because that was the manner in which the existing second chamber in the Canadas was composed. In Australia, bicameralism was entrenched in the colonial Iegislatures, and, despite the founders' interest in the U.S. model, they refused to abandon the tried and tme principle of responsible govemment. In Gerrnany. the long historical legacy of

Bundesrat-style second chambers was a factor in the design of the modem Bundesrat. In the shorter term, the detail of the design of these second chambers was heavily influenced by the make-up of the constitutional conventions. In the U.S., the precedent of equal state votes in the Congress under the Articles of Confederation, which led to the voting rules of the Philadelphia Convention, provided a bias in favour of the outcome of equaI representation of states in the Senate. In Gerrnany, the fact that the Land administrations were the only effective domestic govemments of the German temtory at the time of the drafting of the Basic Law put the Lander governments in a position to influence the institutional outcome. In the U.S. case, even very short-term path dependency within the Convention itseIf had an effect. As we have noted, the order in which design decisions were made affected the choice of the mode of selection of Senators and thereby the equal apportionment of Senators to states. Historical learning was a second factor affecting the origins of these second chambers. In the U.S., the framers were motivated to make changes in the federal institutions in part due to their dissatisfaction with the operation of the Congress of the Articles. In addition, they were determined not to produce a weak second chamber of the sort that had emerged in the states after the revolution. In Canada, the method of selection of the Senate was in part a result of the Canadian delegates' unhappiness with their experience with an elected second chamber. Later, in the Australian case, the

142 founders drew lessons, albeit mistaken ones, from the constitutional division of powers in the U.S. and Canada. In Germany, the framers had the negative experience of centralisation in the Weimar era as a lesson to guide their decisions. Extemal influences were a third factor in the decisions on the initial design of these second chambers. In the U.S., this was manifested by a prevailing ideological predisposition to bicameralism: the framers conceived of an idealised version of the British mode1 of the separation of powers. In the Canadian case, fear of a repetition of the centrifuga1 tendencies assoçiated with the U.S. States' rights' doctrine is the most likely explanation for the rejection of equal provincial representation in the Senate. The Australian founders considered both the Canadian and U.S. models of federalism in

designing their constitution, including the specific design of the Senate. But it is in Gemany that the external influence is most obvious. The Allied overseers set the parameters for constitutional design, one of which mandated a federal design for the

reconstituted German state; in addition, it was they who chose to put the responsibility for the details of the design of the new Gennan central govemment in the hands of Lander politicians. This discussion of the origins of these second chambers confirms some of the conclusions of Russell and Sharman. It is clear, as suggested by Russell, that the heterogeneity of second chamber design is bound up with the differing histones and political traditions of these countnes. As well, it is obvious that Sharman was correct to stress the difficulties involved in sorting out the intentions of the designers of second chambers. It is clear that, in each of these cases, the designers had multiple and overlapping majoritarian and non-majoritarian democratic, and, in some cases, openly anti- democratic, roles in mind. Thus, in al1 of these countnes it may be said that the final design of the second chamber left the way open for a variety of evolutionary paths. In al1 cases the federal, temtonal non-majoritarian mission of the second chamber was put in

143 tension with the non-temtorial, bicameral, legislative review function of the chamber. In several, the addition of parliamentarism placed the territorial non-rnajontarian function in even greater danger of king sidelined by the logic of responsible government. It is to the factors affecting the evolution of these chambers that we now turn. EVOLUTION Throughout our case study analyses we have categonsed the factors affecting the evolution of second chambers as institutional or social. We frarne our conclusions in the same fashion. Institutional Factors We have identified three institutional factors that have been important in the development of the non-rnajontarian aspects of al1 four of these second chambers. These are: the rnethod of selection of the mernbers of the second chamber, the form of the executive, and the division of powers. The method of selection of the members of the second chamber has had pervasive effects on the development of these institutions. In the U.S. case, the fact that the Senate was initially selected by state legislatures linked the fate of Senators to the fate of their supporters at the state level. While early-on the doctrine of instruction provided state legislatures with influence over their Senators, eventually the linking of the electoral fortunes of these two institutions tumed the balance of influence in favour of the Senators. Thus, in this case, indirect election by state legislatures did not provide an enduring guarantee that Senators would act on behalf of their states' interests, as articulated by the state legislatures.

The switch to popular election of U.S. Senators has not ended Senators' role as representatives of the interests of their states, but it did change the conception of what those interests are. Rather than Senators accepting the state legislatures' definition of state interests, Senators now act on what they personally believe to be in their states' interests. As well, however, they act in what they perceive to be the national interest. In

144 this sense, the evotution of the method of selection of Senators has been both a cause and an effect of the evolution of the Senate from an institution primariIy concemed with injecting regional concems into the national legislature, to an institution primarily concerned with national affairs. Thus, while the Senate maintains a part of its territorial non-majoritarîan role, due to its composition, its method of selection was insufficient as a bulwark against the influences conducing to a shift in the Senate's primary focus from state to nation. In Canada, appointment by the federd government as the method of selection of Senators has been a major factor in the decline of the institution. First, because the Senate became the site for the Prime Minister's personal patronage, regional Cabinet representatives' influence over Senate appointrnents declined, and the Senate's role as a regiona1 voice was impaired. Second, appointment as the method of selection of the Senate has been, in a period in which democratic ideals are increasingly the nom, cnppling to its legitimacy, and thus destructive to the institution as a whole. Thus, the Canadian Senate's utility as a mechanism of temtorial non-majoritarianism has ken fundamentally comprornised. In Australia, the direct election of Senators has meant that, as in the contemporary

U.S. Senate, the institution acts as a mechanism of temtorial non-majontarianism only to the extent that it represents the interests of regional agglomerations of voters. Direct election has, of course, been instrumental in maintaining the legitimacy of the institution, allowing it to act as a mechanism of non-temtorial non-majontarianism.

In Gemany, the fact that the Bundesrat is made up of ex omcio members of constituent-unit governments has ken the single most important institutional factor in its developrnent. This method of selection is emblematic of the German conception of federalism; Le., that the Lander participate in and control the central govemment via the Bundesrat. In contrat to the methods of selection used in Our other cases, this method has allowed this second chamber to maintain its temtorial non-majoritarian role in spite

145 of the fact that there are a number of other institutional and social factors which are not conducive to this outcorne. The form of the executive has been a second common institutional factor in the development of the non-majoritarian roles of these second chambers. In the U.S., the presidential-congressional system, because it does not lead to executive dominance, has dlowed the Senate to develop as a relatively strong, independent representative institutian. The fact tnat this system allows weak party bonds to penist has had con flicting effects on the Senate's temtorial non-majoritarian role. Weak party bonds encouraged Senaton to establish peoonal followings in order to secure their political base, thus undermining their links to state legislatures. On the other hand, weak party ties ailow Senaton to form issue-specific regional coalitions on issues of critical regional importance. The recognition that regional interests could be conciliated within the structures of the federal govemment served to strengthen the Senate's institutional position as a site for the representation of those interests. In the three parliarnentary federations we have considered, executive dominance of legislatures has had a detrimental effect on the second chambers' territorial non- rnajoritarian role. In al1 three, to varying degrees, executive federalism has ken an idternative mechanism for the articulation of constituent-unit interests. In Canada and Australia, this has been an important factor in the decline of the Senates' regional representation role. In Germany, however, the Bundesrat's role as the constitutionally entrenched site for intergovernmental relations has allowed it to maintain, and even enhance. its regional representation role. As well, in al1 three parliamentarism has Ied to strong party discipline in the first chambers which has had spill-over effects on the second chamber. In Canada and Australia, partisanship has corne to be the dominant dynamic of the second chamben, while in Germany non-temtorial party influences provide a source of tension with temtorial influences. The division of powers has been a third common institutional factor in the evolution of these second chambers. The U.S., Australia, and Germany have utilised the method which provides for constitutional specification of a list of exclusive powers of the federal government and an extensive list of concurrent powers, with the residuum remaining with the constituent units, and federal paramountcy in cases of conflict. In each case, this system has allowed the federal legislative bodies, over time, to expand their area of authority. The second chambers of these countries have benefited overall from this gradua1 accretion of authority, but, in the U.S. and Australia. the degradation of the constituent-units' status has detracted from the Senates' temtonal non-majontanan role. In Canada, the constitutional provision of two exclusive lists of powers, for the federal and provincial govemments respective1y, and Iimited concurrent areas of jurisdiction, has contributed to the constitutional strength of the provinces. However, because the Senate lacks legitimacy, it has not developed as an important site for tem tonal non-majon tarianism. In addition to these shared institutional factors, other institutional factors have been important in individual cases. In the US., the composition of the Senate is credited with the con ferring of advantages on the less-populous states. Small-state Senators have better contact with their constituents, and equal representation of states has skewed federal funding to the benefit of the less-populous states. In the U.S. as well, Senators' six-year terms were crucial to the growth in the independence of Senators from state legislatures, and thus in the evolution of their state-representation role. In the Australian case, the electoral system has been an important factor. The switch to proportional representation in 1948 facilitated the development of minor parties. The evolution of a Senate in which it is normal for such parties to hold the balance of power strengthened the chamber's ability to carry out its legislative review role. In addition, the minor party and independent members who gained office under the new system reflected a wider range of regional opinion in their bases of suppon, and thus

147 enhanced the Senate's regional representation role. In Germany, the Federal Constitutional Court has been a factor in the Bundesrat's development. The Court has provided specific support for the Bundesrat's interpretation of its legislarive ambit. In this way, it has indirectly supported the Bundesrat's continuance in its role as a mechanism of temtorial non-majontarianism. This discussion of the institutional factors affecting the developrnent of second chambers confirms some of the conclusions from the literature. Watts' and Sharman's observation that initial institutional design factors are important is confirmed, as is Russell's emphasis on the importance of legitimacy. In addition, Sharman's suggestion that arnbiguities in the initial institutional design leave open a variety of evolutionary paths appears to be validated. Social Factors We have identified three general categories of social factors which have affected the development of the second chambers in our four case studies. These have included structural, demographic, and ideological factors. However, in each case the relative importance of these factors has varied, as have the specific elernents within each category. Notwithstanding these facts, we can make some common conclusions as to the effects of these factors. The relatively small number of constituent units in the three parliamentary federations has been a support for the operation of executive federalism. In al1 three, this fact has facilitated the development of an alternative venue to the second chamber for the articulation of constituent-unit interests. In both Canada and Australia, this has been one factor in the decline in the second chambers' regional representation role. In the U.S.. by contrast, the relatively large number of constituent units has discouraged the development of executive federalism, leaving the Senate as the site for the conciliation of regional interests. The pattern of economic development has had effects on the balance of power between the federal and constituent-unit governments in al1 four federations. In the U.S., Australia, and Germany the development of integrated economies was a source of centripetal tendencies. Integrated economies provided an incentive for the federal governrnents in these countries to legislate integrated macroeconomic and regulatory environments. An active federal legislative sphere served to enhance the importance of al1 federal legislative institutions, including the second chambers. In Canada, by contrat, the pattern of economic development has had a centrifuga1 effect. The Canadian economy has remained largely a series of regional economies; thus, the regulatory environment tends to be shaped by the constituent-unit governments. To this extent, the role of federal institutions, including the Senate, has been downplayed. In addition to these cornmon structural factors, we have identified some country- specific factors. The growth of the U.S. as a major internationa1 power emphasised the Senate's role in foreign affairs, and thus increased the relative status of the institution. As well, as the U.S. grew in geographical size and population, the House of

Representatives and Senate diverged in size; the smaller Senate was able to retain an open debating style, thus contributing to the ability of a11 Senators to effectively represent their constituents' views. In West Germany, the transfer, during the 1950s, of more policy responsibilities from the Allies to the federal govemment enlarged that government's legislative compass. However, the Lander were able to maintain their influence in these policy areas, including Gerrnany-EU relations, via the mechanism of the Bundesrat, and thus the relevance of the second chamber was maintained as well. Demography has ken an important factor in the development of al1 four federations. The U.S., Australia, and Germany exhibited high degrees of cultural unifonnity. In none of these federations do constituent-unit boundaries coincide with cultural boundaries. Thus, in each there has been no cultural underpinning to the federal system, and a tendency to centralisation has ken the effective result. In the U.S.,the

1 49 geographical distribution of significant minority groups has caused members of these a~oups to look to federal institutions as their defenders. In Australia, the lack of cultural cleavages conduced to an integrated party system focused on ideology, not region. In

Germany, cultural homogeneity across territorial divisions has been the basis of the stated coal of the achievement of 'uniform living conditions' throughout the country. C In Canada, by conuast, the concentration of the most significant minority group, francophones, in one province has had a strongly decentralising effect. The govemment of Quebec has been a diligent defender of provincial jurisdiction, and has had a demonstration effect on other autonomy-seeking provincial govemments. This reinforcement of cleavages dong provincial boundaries has set limits on the role of federal institutions, including the Senate.

Ideological trends in the period from the 1930s to the 1970s tended to focus attention on national governments. The building of national welfare States and the prevalence of Keynesian economic management strategies required the federal govemments of al1 four federations to take a leading role. Progressive ideas concerning the inability of constituent-unit govemments to deal effectively with huge corporations tended to support the concentration of econornic powers in the federal order of government. While this tendency had the general effect of enhancing the status of second chambers. as federal legislative bodies, only in Germany was the design of the Bundesrat able to combine this tendency to centralisation with the unimpaired operation of its temtori al non-majori tarian role. The rïse of the ideology of democracy has had effects on the earliest estabiished federal second chambers. In the U.S., it was in part responsible for the diminution of the

Senate's temtorial non-majoritûnan roie as it led to the change from selection of Senators by state legislatures to popular election. In addition, it led to the abandonment of the anti-deniocratic functions intended by the frarners. In Canada. the fundamental legitimacy of the Senate has been undennined because it has been unabie to respond to

150 the changed ideological environment. Federal appointment as a method of selection of Senators, questioned even in 1865, has become the Achilles' heel of the Canadian Senate. This discussion of social factors extends and funher specifies some of the work of Watts. His suggestion that institutional and social factors in interaction are responsible for the evolutionary paths of federations is confirmed in that our discussion has pointed to the specific effects of social factors on one type of federal institution. The Contemporary Second Chambers

Al1 of these second charnbers continue to operate as rnechanisms of non-temtorial non-majontarianism via their legislative review role. Certainly the U.S.,Australian. and German second chambers remain powerful in this regard. However, even the Canadian Senate continues, via its cornmittee work and sometimes via its partisan activism, to provide an element of non-majoritarian review of Iegislation. In regard to temtorial non-majoritarianisrn, the story is mcre cornplex. The contemporary U.S. Senate, due to its composition, still operates as a temtorial non-

rnajoritarian mechanism in the U.S. system of government. However, the way in which it does so must be understood in the context of its contemporary method of selection. That is, constituent units are represented only as temtonally defined agglomerations of voters, not as state legislatures or state govemrnents. Thus, while the differing constituencies of Senators and Representatives mean that the Senate does bring a different perspective to

its work. it must be seen now as primaily a national legislative body, not as a 'states' house'. In the Canadian case, the Senate has not been able to sustain a role as a mechanism of territorial non-majoritarianism. While representation of units on the bais of 'sections' rather than on the bais of provinces may have played a part in this, federal appointment as a method of selection has undoubtedly been the primary factor. Senators are seen not as agents of the provinces but of political parties. The Australian Senate remains a 'party house' not a 'States' house'. The logic of responsible governrnent, combined with election as a method of selection, establishes a frarnework which limits its abitity to carry out its role as a body concerned with temtorial non-majoritarianism. Within these parameters, election of the Senate via a form of proportional representation on state-wide constituencies, the emergence of minor parties representing a diversity of regional views, and composition on the basis of equal state representation combine to preserve a measure of temtorial non-majoritarianism in the Senate's operation. It is the actions of the two state governments, in appointing non-co- partisan Senators in 1975, however, that are indicative of how a different method of selection can change the dynarnics of a federation. Direct constituent-uni t govemment involvement in the federal order of government provides a distinctive frarnework for the operation of territorial non-majoritarianism.

It is in this context that the operation of the German Bundesrat is to be understood. The Lander govemments participate in, and supervise the operation of, the federal order of government via the Bundesrat. Thus, the level of temtorial non- majoritarianism in the German federal system is of a different order of magnitude than that of the other federations considered in this study. The overall result of the Bundesrat's influence is a consensual style of democracy, encompassing both temtorial and non-temtorial non-majoritarianism, not found in the other federations. In this federation, in contrat to the others, Land interests are, in relation to both the federal government and the political parties, in the ascendant. The U.S., Canadian, and Australian findings are in part a confirmation of Patterson and Mughan's view that the legislative review role of second chambers is generally more enduring than the regional representation role. However, it seems they did not sufficiently consider the German case, and thus overlooked the fact that the Bundesrat is exceptional in this regard. CONCLUSION

This study has demonstrated that, in regard to each of the countries considered, both non-temtorial and temtorial non-majoritarianism were incorporated in the design of the second chamber. However, differences in the political circumstances produced variations in the degree to which non-majoritarian roles were institutionalised. Three categories of factors were important in the specific design of each of these second chambers. These include: path dependency, historical learning, and external influences.

In regard to the evolution of the second chambers included in the study, we have identified three institutional factors that have ken important in the deveiopment of the second chambers in al1 four of Our cases. These are: the method of selection of the members of the second chamber; the form of the executive; and the division of powers. We have identified three general categories of social factors which have affected the development of the second chambers in our four case studies. These have included structural, demographic, and ideological factors. In regard to the role of second chambers in these federai systems, we have shown that, regardless of the differences in design, al1 four have been able to continue to insert some level of non-temtorial non-rnajoritarianism into their governmental systems via their legislative review role. In regard to the role of these chambers as the institutionai instantiation of temtonai non-majoritarianism, we have shown that the scope of the charnbers' ability to fulfill this role is closely related to its method of selection. This study indicates that the method of selection of the membership of a second chamber provides parameters within which the evolution of its temtorial non-majoritanan role occurs. In the Canadian case, it appears the Senate's temtorial representation role was doomed from the day the decision was made that it should be federally appointed. In both the U.S. and Australia, notwithstanding the differing forms of the executive, direct election has meant that these second charnbers provide only an attenuated version of temtorial representation.

153 In Germany, however, because the Bundesrat is composed of ex officio members of constituent-unit govemments, it is both able and motivated to perforrn and preserve its temtorial non-majoritarian role. Only in Germany, and in the face of both institutional and social factors conducing to centralisation, has the second chamber not only maintained but expanded its ability to fulfill this role. It cannot be said, however, that the method of selection of the membership is wholly detenninative of outcomes. This is because the method of selection itself, as we have noted in the U.S. case, is subject to change. Thus, while this study indicates that the method of selection is cntical to the development of a second charnber, it would be an error to attempt to assert a uni-factoral source of causation.

We have demonstrated that federal second chambers, as an institutional ernbodiment of territorial non-majoritarianisrn, are subject to the ongoing tension between majoritarian and non-majoritarian views of democracy. This study suggests that institutional designers need to carefully consider the social environment in which their institutions will operate; if they wish a second chamber to permanently fulfill a significant temtorial non-majontarian role in a hornogeneous society it would seern direct election is contra-indicated. The Bundesrat provides a powerful alternative model. In a non-homogenous society, the prescription would be Iess clear-cut. However, the combination of direct election with pariimentarism would be a risky course, given the experience of Australia. Should the proponents of a Triple-E Senate in Canada get their way, Canadians would serve as guinea pigs in a useful experiment in comparative federal bicameralism. One rnight suggest, however, that persistence of temtonal non- rnajoritarianism might better be served even in a plural society by the separation of powers model of executive-legislative relations. The resul ts of this study should be regarded as preliminary. To extend these results, it would be useful to consider second chambers in other federations. The Swiss

Council of States would be an excellent candidate, as it has been established for a

154 sufficient period of time to show evolutionary change, and features a plural society with an independent executive. It would also be interesting to study a second chamber indirectly elected by constituent-unit legislatures, on a basis that ensures representation proportional to the partisan balance in each constituent-unit legislature, in order to better understand the ability of such a chamber to sustain a temtonal non-majoritarian role. Meanwhile, however, this study has indicated certain institutional and social sources of causaiion which are critical to the development of the non-majoritarian functions of modem second chambers. Institutional designers, take heed! Alen, André, and Rusen Ergec. Federal Belgiuni Afier the Fou& State Reform of 1993. Brussels: Ministry of Foreign Affairs, Extemal Trade and Development Cooperation. 1994. Australia. Parliament of Australia. 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