THE GOAL OF REDUCING MUTUAL BLOCKADES AND RE-DESIGNATING CONSENT LEGISLATION

As noted above, over the past decades about 55–60 percent of federal legislation came to be designated as consent legislation requiring the approval of the Bundesrat. The Bundesrat can also “object” to the remaining 40–45 percent of legislation, but this is a suspensive veto that can be overridden by a majority of the Bundestag.

The resulting “blockade politics, ” somewhat similar to conditions in the United States when the Senate and House of Representatives have different party majorities or when there is “divided government” as a result of different party control of Congress and the White House, has been strongly criticized in Germany because of its lack of transparency and accountability, inefficiency, and hindrance of the “responsible” party government that should be found in a parliamentary “party state” like Germany.³⁹ “Blockade politics” has been blamed in part for the apparent inability of German politicians to deal with the challenges that face them and to introduce necessary reforms, and it is seen as one of the causes of popular discontent with the parties and politicians in Germany.⁴⁰

As noted above in the section on the administration of federal laws, under Article 84, paragraph 1, the Länder have the right to administer federal laws on their own responsibility by establishing the appropriate agencies and regulatory procedures.

Achieving the goal of reducing mutual blockades and re-designating consent legislation was not easy for a number of reasons. One of was the impact such a reduction would have on the Land prime ministers, whose involvement in consent legislation in the Bundesrat meant more influence for them. The solution was found by providing any Land government with the right to “deviate” (abweichen) from federal rules regarding the establishment of agencies and procedures, when these were part of the legislation, by passing its own regulations. In this case the federal regulations do not go into effect for six months, in order to give other Länder the opportunity to consider passing their own regulations as well. In exceptional cases, where the federal government believes there is a special need for uniform federal regulation or procedures, the law providing such uniformity requires approval by the Bundesrat (Article 84, paragraph 1).

Other Reform Goals and Results

The constitutional reform proposals of the Federalism Commission and, later, of the Grand Coalition government established in the fall of 2005 were not confined to issues concerning dual federalism. “Reducing joint financing and revising the conditions for receiving federal aid” while recognizing the promises made to the new East German Länder in Solidarity Pact II (a revenue and aid distribution package that ends in 2019) was a goal, as was “strengthening the ability of the Basic Law to deal with European integration.” It was also agreed to add a “Berlin clause” designating Berlin as the national capital and recognizing the federal government’s financial responsibility for the representative functions it performs for the Federal Republic.

The results of these particular reform goals were disappointing insofar as a reform of the complex public finance system was put off for a second reform package that became a focus of special discussions in the Bundesrat at the beginning of 2007 and lasted until measures were passed in March 2009 (see below); nevertheless, some provisions of the Basic Law dealing with issues of finance were included in the 2006 reform of the joint tasks in Articles 91a and 91b. Article 91a dealt with federal participation in the improvement of living conditions when they were necessary and important for society as a whole. The joint tasks that were designated included the construction of facilities for higher education, the improvement of regional economic structures, and the improvement of the agrarian structure and of coastal preservation. The problem, according to many critics, was that the Länder were in effect being bribed to engage in various activities at the risk of losing federal funds and that some Länder could ill afford these activities even with federal help. It was also argued that the joint financing of what, after all, were Land responsibilities increased the federal role at the expense of the Länder and reduced their autonomy.

The 2006 reform of federalism deleted paragraph 1, section 1, of Article 91a regarding the improvement and construction of higher-education facilities. This change complements and conforms to the deletion of Article 75, which provided for framework legislation regarding higher education. The other two sections of Article 91a, concerning regional economic structures and agrarian structures and coastal protection, were left unchanged.

A number of changes were also made in Article 91b: educational planning, which had never really occurred, was deleted, but provisions remain that permit joint participation in promoting and financing facilities and projects of scientific research at universities and university research institutes.

There were also some changes regarding finances contained in Article 104a. In the last sentence of paragraph 3, the need for Bundesrat consent for certain legislation was removed; a new paragraph 4 replaced the old one and required Bundesrat approval of federal laws that involve Land administration, as well as Land funds; and a new paragraph 6 concerning the EU was added. The old paragraph 4 regarding federal grants-in-aid was revised and now forms the basis of a new Article 104b.

Amendments to the Basic Law focusing on the EU concerned the mutual responsibilities of the federation and the Länder for meeting the requirements of the Growth and Stability Pact, Land enforcement of EU regulations, and Länder participation in EU policy-making. Finally, a Berlin clause was added that not only designated Berlin as the nation’s capital but also provided in very general language federal aid to help it meet the costs of serving as the capital.⁴³