CONSIDERATIONS OF REFORM

The German system of dual federalism as it has actually been practised has led many observers to complain about the role of the federal government and its expansion into legislative and administrative arenas at the expense of the Länder, that is, to complain about the reduction of Land “constitutional space” by the federal government.

While the complaints have come mostly from Land and local authorities, it was the elected members of the Land parliaments more than the executive officials who argued for a redistribution of competences; the Land executives, after all, participated in federal legislation through the Bundesrat, which could practically ignore the Land parliaments. Local governments also felt as though their interests were often ignored by the Land executives.

The weakness of the Land parliaments in policy-making is also reflected in the coordination that takes place among the Land executives, for example, in conferences of minister-presidents (prime ministers) and ministers of education, as well as conferences between Land and federal executive officials concerning numerous issues. These developments led one prominent scholar in the 1960s to speak of a “unitary federal state” in Germany,¹⁵ and later another scholar went further to write of a “hidden unitary state.”¹⁶ After the passage of the Finance Reform of 1969, it became fashionable to talk about Politikverflechtung, which refers not only to the interconnection between federal and Land executives in decision making in the Bundesrat and to the coordination among bureaucratic officials noted above but also to the system of public finance.

In this system the Länder have no autonomous tax authority, and the local governments have very limited authority to raise revenues on their own. Instead, most important taxes are shared. Thus the individual income tax, the corporation tax, the value added tax (VAT), and the local business tax and their distribution are determined by the federal government and Bundestag (parliament), but only with the approval of the Bundesrat, that is, the legislative chamber that represents the Länder (or, more accurately, their executives).

In addition, sizeable sums are transferred from the richer to the poorer Länder in a complicated procedure to bring the poorer Länder up to 95 percent of the average per capita revenue of all Länder. Finally, federal supplementary grants are provided to the poorer Länder.¹⁷

The German system of dual federalism and Politikverflechtung has been criticized for inefficiency and ineffectiveness in decision making, especially in the legislative process in the Bundesrat. This process is cumbersome and lacks transparency, the opportunities for forcing changes in or even blocking legislation in the Bundesrat are numerous, and the room for maneuver for the Länder is limited. Gerhard Lehmbruch has suggested that the deeper reasons for these conditions lie in the contradictions of the federal order and the party systems of the Federal Republic. The competitive logic of the party system promotes the idea of opposing majorities in the Bundestag and Bundesrat in cases of divided government, that is, when one party coalition has a majority in one chamber that is opposed by a different coalition of parties in the other chamber. Negotiations in the Bundesrat require cooperative strategies, whereas party competition often leads to confrontational strategies. When the Bundesrat is used as an instrument of opposition, there is a “structural break” between the federal state and party competition and a limitation on the policy-making capacity and ability to act of the federal government.¹⁸ This problem is, of course, well known to Americans in their system of separation of powers and checks and balances.

The numerous criticisms of the federal system led to a flood of complaints and proposals for reforms from many scholars, various political elites (especially at the Land and local levels), and the attentive public. Only modest reforms had occurred in 1994 after unification; two reform packages, of 1993 and 2005, concerning public finances (Solidarity Pacts I and II) had resulted in the incorporation of East Germany into the complex West German system and a redistribution of revenues rather than real reform;¹⁹ territorial reform failed to take place as a result of a special commission report in 1976;²⁰ and even the expected consolidation of Berlin and Brandenburg failed in a referendum in 1996.²¹

Finally, a commission was formed in the fall of 2003 to consider new reforms of the federal system.

This Federalism Commission (Kommission von Bundestag und Bundesrat zur Modernisierung der bundesstaatlichen Ordnung [KOMBO]) consisted of thirty-two voting members, sixteen each from the Bundestag and the Bundesrat. Members from the Bundesrat were prime ministers from the Länder and their deputies. That this was not a top-down reform exercise was demonstrated by the fact that the federal government had no voting members, although it was represented by several government officials and, perhaps indirectly, by some of the members of the Bundestag. Other non-voting members included two Land parliament presidents, four party group leaders from Land parliaments, and three representatives of local government associations. The inclusion of these representatives demonstrated the desire to include their “bottom-up” views in the reform process. Twelve professors who were experts on federalism were also included, for a total of 102 participants. Two highly controversial issues, territorial reform and public finance, were omitted from the Commission’s deliberations.²²

As indicated in the introduction to this chapter, the co-chairs of the commission, the then national leader of the SPD, Franz Münterfering, and the then CSU prime minister of Bavaria, Edmund Stoiber, announced in December 2004 that they could not present a common reform proposal, largely because of disagreement on the issue of education, a classic top-down versus bottom-up conflict. There were also other areas of disagreement, but these were not decisive factors.

There was widespread disappointment and frustration over the failure of the commission to present comprehensive reform proposals, and when new elections were called for September 2005, hopes were raised that the new government would revisit the effort; indeed, leaders of the government and the opposition had met in May 2005 to revive the issue. As noted in the introduction, the elections did take place but with unexpected results.

Because of them, the only feasible combination of parties for the new government was a Grand Coalition of CDU/CSU and SPD. Federalism reform, which Edmund Stoiber, one of the co-chairs of the Federalism Commission of 2003–4, had called “the Mother of all Reforms, ” was now put back on the agenda by the new government. Not surprisingly, the government proposals were based on the Federalism Commission’s proposals; indeed, according to my own analysis, there were changes – from significant to minor editorial changes – in twenty proposed amendments, while four proposed amendments were not contained in the coalition agreement. There were no changes in fourteen other proposed amendments. These were submitted for review by the prime ministers of the Länder in December 2005 and by the appropriate Bundestag and Bundesrat committees throughout the winter and spring of 2006. The committee deliberations and debates revealed some opposition to the reform proposals, but they passed the Bundestag at the end of June and the Bundesrat a week later, in both cases with large majorities.²³

<< | >>

↑

Source: Burgess Michael (ed.). Constitutional Dynamics in Federal Systems: Sub-National Perspectives. McGill-Queen's University Press,2012. — 352 p.. 2012

More legal literature on Laws.Studio

CONSIDERATIONS OF REFORM

More on the topic CONSIDERATIONS OF REFORM: