• The German Bundesrat: Federalism as Intergovernmentalism
  
  • Composition of the Bundesrat
  • Bundesrat and Federal Government

The German Bundesrat: Federalism as Intergovernmentalism

Composition of the Bundesrat

The German Bundesrat consists of those cabinet members of the sixteen post-unification Länder delegated to it by the respective Länder governments (Art. 51 of the Basic Law). It is the successor institution of the Permanent Imperial Diet (Immerwährender Reichstag) of 1663 (seated at Regensburg) which was composed of plenipotentiaries of the various principalities and imperial cities, and presided over by the Emperor or his representative, and which itself was preceded by non-permanent Reichstage of a similar kind throughout the Middle Ages. After its dissolution in 1806 this institution was succeeded first by the Federal Assembly (Bundestag) of the (in reality confederal) German Federation of 1815 and then (for the northern part of the country) by the Bundesrat of the North German Federation. This institution then evolved into the Bundesrat under the Imperial Constitution of 1871. It was chaired by the Chancellor of the German Empire who was appointed by the King of Prussia in his capacity of holding the ‘presidium’ of the Empire.

On the Empire's dissolution in 1918 and the creation of the Weimar Republic, [ Gesetz, betreffend die Verfassung des Deutschen Reichs (BGBl. des Deutschen Bundes, No. 16, 63), reprinted in Heinrich Triepel, Quellensammlung zum Deutschen Reichsstaatsrecht , Leipzig, Verlag C.L. Hirschfeld (1901), 1-20, and Verfassung des Deutschen Reichs, RGBI. 1919, p. 1388; reprinted and commented on in Gerhard Anschütz, Die Verfassung des Deutschen Reichs, 8th edn., Berlin, Verlag Georg Stilke (1928).] the Bundesrat became the Reichsrat in a more unitary form of federal state, until the Länder of which it was composed were dissolved by Hitler in 1934.

Upon its re-establishment by the Basic Law in 1949, the present Bundesrat was thus the heir to a long line of similarly structured institutions, all marked by the fact that in varying degrees and with varying powers they directly effected elements of intergovernmental coordination and cooperation in the constitution.

In the Bundesrat of today, as in all of its predecessors, the Länder are not represented equally in terms of voting strength. Instead (and as a result of the compromise between the ‘Senate’ and ‘Bundesrat’ models in the Parliamentary Council which drafted the Basic Law) [ See Nevil Johnson, ‘Territory and Power: Some Historical Determinants of the Constitutional Structure of the Federal Republic of Germany’, in C. Jeffery (ed), Recasting German Federalism , Pinter, London/New York (1999).] each Land with less than two million inhabitants has three votes, those with from two to six million inhabitants have four, those with more than six million inhabitants five, and (following unification in 1990) those with more than seven million inhabitants have six votes. Though this unproportional attribution of votes under Art. 51 of the Basic Law is open to criticism - as are the results of all historical compromises - the principle that all the votes of each Land must be cast uniformly and cannot be split has never been in dispute in the Federal Republic.

Equally, there has never been any attempt to change the Basic Law’s stipulation that members of the Bundesrat cannot at the same time be members of the Federal Government and that the Bundesrat cannot be dissolved by the Federal Government. Inherent in this status as an ‘eternal’ organ is that the Federal Government is not responsible to the Bundesrat, is not, consequently subject to any Bundesrat vote of no-confidence, and is, therefore, constitutionally not dependent on its support. This, however, by no means makes the Bundesrat a powerless institution, as the remainder of this chapter shows.

The central characteristic feature to be emphasised at this point is the fact that the Bundesrat not only embodies the intergovernmentalism of the federal system, but that to a large extent it is also responsible for the efficient management and coordination of many of the wide-ranging institutional interdependencies arising from the intergovernmental structure. The coordinating function is performed in the field of legislation mainly in its various select committees, in which (unlike the plenary) the Länder each have one vote [ § 42 of the Standing Orders (Rules of Procedure) of the Bundesrat; text in: Bundesrat (ed.), Handbuch des Bundesrates 1999/98, Bonn (1997), 106 et seq .] and whose results regarding each piece of legislation have to be carefully correlated with one another once the plenary session (in any third week) approaches.

External observers sometimes raise the accusation that this legislative process does not comply with democratic standards. This does not hold up to scrutiny. First, all of the governments representing their Länder in the Bundesrat derive their own legitimacy from the election of the Land legislatures to which they are responsible. Secondly, they are also subject to the constant control of these Landtage regarding their political and voting behaviour in the Bundesrat at the national level. Moreover, the fact that the party-political structures of the Landtage (in particular their opposition parties) are not reproduced in the composition of the Bundesrat has a well-balanced constitutional philosophy behind it. This boils down to the obvious comparative observation that the more directly one bases the composition of the second chamber on the same foundations as that of the first - i.e. the elective principle - the more one will have competition, friction and deadlock between the two, because each of them can claim the same basis of legitimacy. In federal states such deadlock situations invariably tend to weaken not only the second chamber, but also the entire federal structure. The explanation for this is an obvious one: in such situations the party headquarters at national level will naturally first of all attempt to ‘tame’ the party's representatives in the (elected) second chamber in order to make way for what they interpret to be the national interest from the viewpoint of the centre, rather than give way to an interpretation of the national interest arising from the sum-total of regional interests.

In the political and academic discussion on bicameralism, as reflected for example in the (never-ending) debate in Great Britain on House of Lords reform, it has been said that second chambers are either ‘strong’ or they are ‘useful’. Bearing in mind that this debate is conducted in a traditionally centralised country (though one now undergoing a significant decentralisation process), it may not seem surprising that this observation neglects to add that in federal systems second chambers should be both ‘useful’ and ‘strong’ or else they will be useless. At least on the basis of German experience, it can be rightly maintained that federal second chambers will be both stronger and more useful the more their principles of composition differ from those of the first. In other words: the more clearly and visibly the second chamber represents the federal principle as distinct from the democratic principle represented in the first, the ‘stronger’ and more ‘useful’ for the entire structure it will be. Recognising that federalism in practice is to a considerable extent identical to intergovernmentalism, any second chamber which openly reflects this empirical and constitutional fact will thus be both a ‘strong’ and a ‘useful’ one.

Bundesrat and Federal Government

Similar considerations apply to the separation of membership in the national cabinet from that in the second chamber: If a member of the second chamber can at the same time also be part of the national executive, and if he or she is simultaneously also dependent in that capacity on the confidence of his or her own chamber, conflicts between the loyalty owed to both the national and the regional level are unavoidable. At the same time, the presence of a government team among the members of the second chamber will inevitably lead to the effect that the ‘whips’ are also applied in that chamber whenever government interests are at stake. Such interests are likely, however, to collide in many instances with genuine regional interests and will tend to undermine the function of the second chamber. This is an experience the Federal Republic has largely avoided given that the Bundestag, as the directly elected chamber, is the only institution representing the democratic principle directly vis-à-vis the national executive, both in terms of accountability and cabinet affiliation. This does not mean that non-members of the Bundestag cannot be appointed as members of the Federal Government, but it does mean that members of the Bundesrat cannot for precisely these reasons.

The partial detachment of the democratic from the federal principle in the Bundesrat does not mean, however, that party politics are irrelevant in relations between the Bundesrat and the Bundestag, let alone the Federal Government. [ On the potential for conflict between party and territorial principles of representation in the Bundesrat, see Roland Sturm, ‘Party Competition and the Federal System: The Lehmbruch Hypothesis Revisited’, in C. Jeffery (ed), Recasting German Federalism , op.cit.] There are of course organisational and other links between the parties in power in the Bundestag and their political equivalents in the various Länder governments on the one side, and the Bundestag opposition parties and their party colleagues in Länder government on the other. Conflict between the two chambers also tends to be more frequent if their respective party majorities differ. Even in such conflicts, though, the Bundesrat can normally only justify ‘opposition’ to the Federal Government on a specific piece of legislation by proving that it is basing its objections on either legitimate regional interests or on a different evaluation from the Länder perspective of the legal or administrative merits of the provisions concerned.