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Published online by Cambridge University Press: 02 September 2013
The creation of the Bundesrat, when the Federal Republic was launched a decade ago, has brought into being a new variant among the several examples of second chambers in the lengthening history of federal governments. The purpose of this study is to investigate the working of that new model—in contrast to the expectations of its originators—and its relations to the other parts of a democratic system; and to assess its present merits and future utility.
1 Articles 70–82 of the Bonn Basic Law deal with the division of legislative powers between the Bund and the Laender, while the succeeding articles (83–115) are concerned with the division of administration and of revenues.
2 I am aware that this is too simplified a characterization of the American federal system. From the American point of view, which stresses the emerging links rather than the historic and still existing separation between the two levels of government, it may seem a very doubtful statement. Nevertheless, it indicates the basic difference between American and German federalism.
3 Land execution of Federal laws is the rule. Article 83 of the Basic Law says: “The Laender execute the federal laws as matters of their own concern insofar as this Basic Law does not otherwise provide or permit.” In order to get a rough idea of the federal predominance in legislation as compared with its relative impotence in administration, it is only necessary to compare the respective articles of the Basic Law. Articles 73 and 74 give extensive lists of the legislative powers of the federation—of which, for political analysis, concurrent legislation is an integral part—while Article 87 gives a meager catalogue of the substantive federal functions of administration.
4 The beginnings of German federalism can be traced back to the medieval feudal system. Since the middle of the 17th century we find a territorial representation vis-à-vis the emperor. For a general survey of these developments see Hartung, Fritz, Deutsche Verfassungsgeschichte, 6th impression (Stuttgart, 1950)Google Scholar. Some interesting observations are made in Anschütz, Gerhard, Handbuch des Deutschen Staatsrechts, Vol. 1 (1923)Google Scholar. A small selection of documents with an excellent introduction has been published by von Puttkamer, Ellinor, Foederative Elemente im deutschen Staatsrecht seit 1648 (Goettingen, 1955)Google Scholar.
5 In constitutional terms the imperial Bundesrat was the strongest second chamber Germany ever had. Its consent was required for all legislative bills and it had strong executive powers. The assembly of princes was supposed to embody the sovereignty of the Reich. Nevertheless, it did not play any significant political role, mostly as a result of Prussian hegemony. There is no recent monographic study on this interesting subject, but several valuable pages can be found in Goldschmidt, Hans, Das Reich und Preussen im Kampf um die Fuehrung (Berlin, 1931)Google Scholar. See also Peter H. Merkl's article in this issue of this Review, below, p. 732; Robinson, James H.The German Bundesrath (Philadelphia, 1891)Google Scholar.
6 Article 92, paragraph 2 of the Basic Law.
7 The constitutional provisions concerning the power of absolute veto are scattered throughout the Basic Law. The numbers of the various articles are: 29.7; 79.2; 841; 84.5; 85.1; 87.3; 87b.7; 87b,2; 105.3; 106.4; 106.5; 107; 108.3; 120a; 134.4; 135.5; 143. (The number after the decimal point indicates the paragraph within the respective article.)
8 The suspensive veto (Einspruch) power is regulated in articles 77.3 and 77.4 of the Basic Law. It can only be exercised after a conference committee meeting has been held.
9 These powers are otherwise very important for the Bundesrat, and many observers value them even more than participation in the legislative process. The Bundesrat must consent to many administrative regulations and thus has considerable influence in executive matters. Secondly, it participates in the election of judges of the Federal Constitutional Court, and can initiate or join proceedings before this Court. Thirdly, the Bundesrat has special legislative functions in cases of emergency, and participates in the so-called federal compulsion (Bundeszwang) in cases of conflict between the Federal and Land governments. There are some additional minor powers. All this indicates that the restrictions upon the legislative functions of the upper house do not give an adequate picture of all its activities. However, these functions have played the predominant role in the political development of the Bundesrat; and all the other functions, insofar as they have been exercised at all, have been influenced thereby. The present political position of the West German second chamber can only be understood through the development of its participation in legislation; the remaining functions do not contribute greatly to such an understanding.
10 At present, four Laender have five representatives each in the Bundesrat (North Rhine-Westphalia, Bavaria, Lower Saxony, Baden-Wuerttemberg); three have four representatives each (Rhineland-Palatinate, Schleswig-Holstein, Hessen); and three have three each (Hamburg, Bremen, Saar). Berlin has four associate representatives without the right to vote. Seats are redistributed after each official census; Laender with populations under two million inhabitants have the right to three seats in the Bundesrat; those with more than two but less than six millions get four seats; and Laender with more than six million, five seats. This slight differentiation of seats is intended to prevent dominationby a coalition of small Laender over the large ones. Thus far there have been no attempts to effect such a coalition and an equalization of the size of Land representations probably would not have any considerable effect.
11 The possibility of substituting Land officials in the committees is very important for the Bundesrat. It has been sharply criticized by opponents of the bureaucratic influences which are thus introduced. The committees vary in the ratio of substitution, the Foreign Relations Committee having the least with an average of about 90 per cent of its original members participating in its deliberations and only 10 per cent substitutes. The Committee for Internal Affairs runs to the opposite extreme with an average of substitutions of more than 92 per cent. The average for all committees shows that in about three cases out of four the ministers send substitutes to the committees.
12 A statistical survey of Bundesrat committee reports (made by the present writer for a study of the political role of the Bundesrat, which will be published by Quelle & Meyer, Heidelberg, in the summer of 1959), shows that only one per cent of committee reports failed of adoption by the Bundesrat when only one report was made. In the case of conflicting reports from several committees, the percentage went as high as 30. Only in such cases can an independent political initiative from the floor be exercised.
13 Article 76.2 of the Basic Law.
14 The activities of these inter-Land organizations have been neglected by political scientists thus far. Neither their exact number nor their organization or influence has been described. An unofficial compilation made by an official of the Bundesrat lists 83 of them.
15 Critics contend that the constitutional Assembly was somewhat naive in believing this. An expert study of Weimar legal history alone would have yielded a much higher figure than the three or four bills per year estimated in the Constitutional Assembly.
16 See the figures given in Handbuch des Bundesrats (Bonn, 1958), Pt. II, pp. 94–97Google Scholar.
17 These special actions are published in a separate section (Part II) of the Bundesgesetzblatt.
18 The status of the Bundesrat as a second chamber is not unquestioned. There are still some who classify it as part of the Executive, since it represents the executive branch of the Land governments and many of its functions are of an executive nature. Nevertheless, the leading commentaries on the Bonn constitution and the only available study on the Bundesrat, , Schaefer, Karl, Der Bundesrat (Bonn-Koeln, 1955)Google Scholar, emphasize its legislative aspect.
19 E.g., there may be an important and very complicated bill containing a single provision saying that state offices may be used for minor administrative details. Under present practice, the whole bill needs the consent of the Bundesrat. If any part of this bill is later revised, the consent of the second chamber must be renewed, even though the changes have nothing to do with the provision which originally necessitated Bundesrat action.
20 The provision in question (Article 84, paragraph 1, of the Basic Law) says: “If the Laender execute federal laws as matters of their own concern, they determine the establishment (Einrichtung) of authorities and administrative procedures (Verwaltungsverfahren) insofar as federal laws approved by the Bundesrat do not otherwise provide.” For a highly legal discussion of the interpretation of these two terms see Haas, Diether, “Bundesgesetze uber Organisation und Verfahren der Landesbehoerden,” Archiv des Oeffentlichen Rechts, Vol. 80, pp. 81 ff.Google Scholar; and Held, Karl, “Der Autonome Verfassungsstil der Laender und das Bundesratsveto nach Art. 84, par. 1 GG,” in the same volume, pp. 50 ff.Google Scholar
21 Heidenheimer, Arnold J. has described the partisan considerations behind the “Suedweststaat” issue in his pertinent study of “Federalism and the Party System: the Case of West Germany,” in this Review, Vol. 52 (September 1958), pp. 815–816Google Scholar.
22 The Bundesrat's position is defended by Kratzer, Jakob, “Zustimmungsgesetze,” in Archiv des Oeffentlichen Rechts, Vol. 77, pp. 266 ffGoogle Scholar. and Harry Rohwer-Kahlmann “Verfassungsrechtliche Fragen der Zustimmungsgesetze,” id., Vol. 79, pp. 208 ff. For an opposite view see Schneider, Hans, “Die Zustimmung des Bundesrats zu Gesetzen,” Deutsches Verwaltungsblatt, 1953, pp. 257 ff.Google Scholar
23 The President of the Federal Republic, Theodor Heuss, remarked on the effects of the elimination of Prussia on Germany federalism, when he was a member of the Constitutional Assembly in 1948 (Sitzungsberichte des Hauptausschusses des Parlamentarischen Rats, p. 207). His prophecy that the Federal Republic would develop a “federalism of the bureaucracy” has to some extent come true.
24 The influence of partisan issues upon Bundesrat policies was well described by Heidenheimer, op. cit., and his observations about party politics are a valuable complement to the present study. It would be misleading, however, to judge the role of the Bundesrat solely from the viewpoint of the party system. In its present structure as well as in its tradition the Bundesrat is a bureaucratic organ; its work is conducted less openly and with less concern for publicity than that of elected legislative chambers. It learned the lesson from its fight over the E.D.C. issue in 1952 that it can only lose in an open clash. The fact that the Bundesrat has very rarely taken a legislative initiative indicates also that it can act as a purely parliamentary institution only with great difficulty. The jealousy of the Bundestag is another reason why the Bundesrat seeks influence rather than open power. Bundesrat participation in the preparation of federal legislation far beyond any constitutional design (the institutionalization of which is a main reason for the decline in the number of formal meetings), the influence exercised through Bundesrat recommendations, and its unusual successes in conference committee, all show an expansion of Bundesrat powers in areas well suited for bureaucratic action. As a result the Bundesrat is today the strongest second chamber Germany has ever had. It is a mistake to assume that the Bundesrat is not active when it is not heard from; the reverse is more likely. It is true that the Bundesrat itself could not preserve the kind of federal balance envisaged by the federalist faction in the Constitutional Assembly. But no second chamber alone—neither the United States Senate nor the Swiss Staenderat which are both much stronger—has succeeded in preserving a particular form of federal structure in the face of major political trends in another direction. The Bundesrat has been quite successful in view of its constitutional limitations and its political context; more so, probably, than another form of second chamber, e.g., a senate modelled on American lines. It is true that it has had these undesirable centralizing side-effects upon Land elections, the forming of Land coalitions and the structure of Land party organizations, which Heidenheimer describes so well. But these very disadvantages are an indication of the extent to which the Bundesrat performed a salutary function in checking the potentially dominating power of the Federal government. It is precisely for this reason that the parties inserted themselves into Bundesrat politics, as a result of which the disadvantages occurred.
25 The best article on the conference committee is Weasel, Hans, “Der Vermittlungsausschuß nach Artikel 77 des Grundgesetzes,” in Archiv des Oeffentlichen Rechts, Vol. 77, pp. 286 ff.Google Scholar, covering mainly legal and theoretical questions.
26 Handbuch des Bundesrats, op. cit., Pt. II, pp. 94–97.
27 The most interesting such conflict was the legislative struggle over the European Defense Community. For a short account see Heidenheimer, pp. 816 ff.
28 Compare Sternberger, Dolf, “Opposition des Parlamentes und Parlamentarische Opposition,” in Lebende Verfassung (Meisenheim, 1956), pp. 133 ff.Google Scholar
29 Hamburg and Bremen are two exceptions since their constitutions provide explicitly for a cabinet system in which political questions are determined by majority decision. See Article 13, paragraph 2, of the Hamburg constitution and Article 117 of the Bremen constitution. The texts are available in Fuesslein, E. W., “Deutsche Verfassungen” (Berlin-Frankfurt), 1951Google Scholar.
30 Heidenheimer, op. cit., pp. 816 ff., gives a short analysis of this crisis.
31 The Baden-Wuerttemberg provisional constitution (Ueberleitungsgesetz) then in force contained this provision; it is also in the present Land constitution (Article 49, paragraph 1) and in the Basic Law (Article 65).
32 Article 49, paragraph 2, clearly states that the casting of the Land's votes in the Bundesrat is a matter to be decided by the cabinet.
33 See the decision of the Federal Constitutional Court of May 21, 1952, in Entscheidungen des Bundesverfassungsgerichts, Vol. 1 (Tuebingen, 1952), pp. 299 ff., esp. p. 311Google Scholar.
34 The heads of some Land delegations have been given the status of cabinet members so that they can cast the votes of their Land in the Bundesrat. Officials of the delegations often attend Bundesrat committee meetings in place of—or together with—delegates from the Land bureaucracy. A special standing council (Staendiger Beirat) of the Bundesrat which acts as a kind of committee on procedures, is composed of members of Land delegations. Finally, the Federal Ministry for Bundesrat Affairs has an informational conference each Wednesday with Land representatives (this is its main activity and therefore it was not mentioned in the preceding discussion of the relations of the Bundesrat to the Federal government).
35 The administration of the Bundesrat collects all commentaries in the press, in the radio and other means of mass communication and sends them to a circle of interested persons in mimeographed form. These Presseveröffentlichungen ueber den Bundesrat are an excellent and indispensable source of information for any research on the Bundesrat. The opinions referred to are quoted there at length.
36 The influences of Bundesrat politics on party organization in the Laender which Heidenheimer describes, op. cit., have certainly diminished these effects. Actual voting behavior in the Bundesrat shows, however, that “Gleichschaltung” was not quite as effective as a look at the composition of Land coalitions might suggest.
37 A description of these effects has been omitted from the present study since Heidenheimer's article goes into them at length.
38 Dombrowski, Erich proposed this in the Frankfurter Allgemeine Zeitung, editions of June 11, July 2 and July 5, 1954Google Scholar.
39 The former Reichsminister Schlange-Schoeningen, Hans in the Kieler Nachrichten, July 19, 1956Google Scholar.
40 See the description given in v. Mangoldt, , Das Bonner Grundgesetz (Berlin, 1953), p. 266Google Scholar.
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