Germany: Federalism, Legislature and Executive

The Basic Law serves as the constitution of Germany. Drafted in 1947, with the expressed intention as serving as a basis for German government until reunification, it was hastily constructed in nine months under the pressure of the occupying powers of the allied sectors (West Germany). Did not receive universal acclaim from the outset, not only were the West German government officials uneasy about taking such a step that would further cement the divisions between the two Germanies, but there was also a residual distaste toward the creation of such a document under allied pressure. The document enjoyed the support of a relatively small number of the German people ( this does not mean that a majority opposed it, many were simply indifferent), and was ratified by the regional governments rather than through a referendum.
However, as time passed, the basic law became much more popular and has been accepted by the German people. In fact, the unification of 1990 essentially incorporated the East into the West German political system - so the idea of the Basic Law functioning until the union of East and West has been superseded by the notion of this document as the functional basis for all German government.

Earlier, I discussed the four main aims of the allies: (1)de-nazify the country; (2) the country was to be demilitarized; (3) to democratize the country; (4) Country was to be decentralized, power was to be divided between the national and state (lander) governments. With respect to how the political system of Germany was designed (and continues to function), the basic law set out to create a government under which power was dispersed, so as to avoid the centralization of the Third Reich, which abolished the federal system after assuming power; yet, the institutions were to be strong enough to avoid the chaos of the Weimar Republic. Also, authority was to be divided between the central government and the states (lander), to reflect the regional diversity of Germany and to ensure that an excess of power was not to be found at the centre.
We will spend the remainder of this class discussing the German Federal System and the organization of power at the executive and legislative levels.

A. Federalism

Germany has one of the few federal systems in Europe. Has a long history of Federalism, the Second Reich marked the union of 25 states that entered into a federation, present marks a continuation of this trend. It is composed of 16 state governments, which are important actors in the political process.

Under this system, power is divided between the national and state level governments. In most policy areas, the federal government has primary responsibility, yet the states have primary responsibility over such areas as education, culture, law enforcement, supervision of the media. Also, they enjoy concurrent responsibility, with the federal government in other policy areas (including such areas as higher education, regional economic planning and agricultural reform), and have residual powers in the areas that are not specifically designated by Basic Law as being the sole purview of the national government. Further, the states are responsible for the implementation and administration of policy, which grants influence over the passing of legislation (explain how). Finally, the state governments also appoint the members of one of the two houses of the federal legislature - the Bundesrat.
Within the Lander governments, each (with the exception of Bavaria) has a unicameral legislature (Landtag), which is directly elected by a popular vote. The governing party, or coalition, then appoints a Minister president to head the state government, next to the Chancellor, these are the most powerful offices within the Federal Republic. The Minister Chancellor then appoints a cabinet to supervise the running of the state agencies.
There is tremendous diversity among the Lander (states). Show Chart from Conradt. Large states such as North Rhine-Westphalia (22% of German pop), Bavaria (distinct culture and CSU), Baden-Wuttemburg, Lower Saxony. City states such as Hamburg ($), Bremen, Berlin. Former states of the East such as Saxony, Saxony-Anhalt, Brandenburg, Thuringia, Mecklenburg-West Pomerania, and of course the Eastern half of Berlin.
Revenue sharing between the wealthier and the poorer lander, with the federal government being responsible for revenue sharing. It takes in more than it spends (receives 55% of tax revenues, responsible for 45% of public expenditures) and this gives it some financial leverage over the lander.

B. The Legislature

The German legislature is bicameral (two houses), with the Bundestag being popularly elected and enjoying primary legislative responsibility and the Bundesrat serving as the representative organ of the state governments at the national level. The Parliament (both houses) is at the centre of German federal government. Not only does it pass legislation, supervise the federal ministries, and debate policy, but it also elects the Chancellor, creating the linkage between the legislature and the executive that we saw earlier evidence in Britain.

1. The Bundestag

The Bundestag contains 672 deputies, with half elected by district and the other half selected through proportional representation (more on this in the section on elections). They are selected through national elections that take place normally once every four years, only directly elected federal politicians
Importance of parties in the operation of the Bundestag Vast majority of votes (somewhere in the range of 90%) are straight party affairs.

Functions

Legislation: Primary responsibility of the Bundestag is to pass legislation, all federal laws must gain its assent. While the initiative for the drafting of legislation rests in the hands of the executive, it is the Bundstag that must pass this legislation.
Debate: Also is a forum for the debate of policy. Debate takes place prior to the passage of all legislation with time for debate allotted to the various parties according to their size and both party leaders and back benchers are frequent participants in this debate. Discussion of policy provides an opportunity for the general public to become aware of the issues being debated and for their representatives to forward disparate opinions.
Oversight: Bundestag is also responsible for overseeing the actions of the government both in terms of policy creation and implementation. One main tool employed to meet this end is the “question hour”, a concept which should stir some memories. Deputies can submit written questions, either on broad policy or the needs of a constituent, to a Minster and then have the selected questions addressed during the question hour. The government reps answer the questions during this time, and supplementary questions may be asked. More than 20,000 questions were posed during the 87-90 term of the Bundestag (400 during the first session in the late 1940s).
Deputies can also petition (30 signatories) for a special debate on current policy problems.
Committees also hold hearings concerning government actions in their area of responsibility.

2. The Bundesrat
Exists as a result of the Federal system. Contains 68 members. They are appointed by the state governments as their representatives in Bonn (soon to be Berlin). Frequently the members of state cabinet are appointed to the Bundesrat (can serve concurrently), this house tends to become almost a permanent conference of state representatives. Seats are allotted according to the population of the states, ranging from 6 seats to the most populous states to 3 for the least. Votes of the states are cast in a bloc, according to the preferences of their governments.
Legislative authority is secondary to the Bundestag, but not to be taken lightly. Government (chancellor and cabinet) must submit proposals to the Bundesrat before taking them to the floor of the Bundestag. Approval of the Bundesrat is required for any area where the states hold concurrent powers, or where the states will have to administer federal regulations, or about 2/3 of all legislation. Very important, and their role is enhanced when one side controls the Bundestag and the other controls the Bundesrat (as is the case at present).

In conclusion, the German parliament has greater autonomy from the executive branch than is the case in either the British or French systems. Presence of the Bundesrat is a major division of power. Yet, as we shall soon see, it mainly reacts to the legislative proposals of the executive rather than initiating them.

C. The Executive

Formally a two headed executive with the Chancellor and the President. However, in practice it is the Chancellor that exercises most of the power. This is by design - under the Weimar Republic, the division between the Chancellor and the President was rather murky, result was the coming to power of the Nazis. Basic law strengthened the power of the Chancellor; also, this position has been held by some very powerful personalities - Adenauer, Brandt, Kohl - to the point where this officeholder has been seen as the personification of the German Federal government.

1. The Chancellor

Chancellor is elected by the Bundestag, responsible to it for the conduct of the federal government. Represents the majority (usually a coalition) and can normally count on their legislative support. Supported by a cabinet, in 1995 there were 17 cabinet ministers, who are formally appointed by the President upon the advice of the Chancellor, do not require the approval of parliament. Actually appointed by the Chancellor, President is a formality.
Basic Law provides three basic principles for the functioning of the executive:
(1) the Chancellor principle presumes that this person is singularly responsible for the operation of the government. Formal policy directives put forth by the Chancellor are legally binding upon the Cabinet Ministers, must follow the Chancellors lead. Chancellor is formally superior to the cabinet Ministers, contrast with the UK.

(2) Ministerial Responsibility asserts that the Minister has the ability to conduct the operations of his department without interference so long as it does not conflict with the directives of the Chancellor. Meaning that they are allowed freedom so long as they do not act in direct opposition to the wishes of the Chancellor.
(3) Cabinet Principle - when conflicts arise between individual offices (ministerial areas of responsibility) over jurisdictional or budgetary concerns, they are to be settled within the Cabinet. Not to be fought on the floor of the Bundestag.
While these formal principles exist, in reality, relations between the Chancellor and his/her cabinet (yet to be a female chancellor) are not quite so clear. In reality, coalition and party obligations will strongly affect the selection of cabinet members (explain how). Chancellor is not completely free to appoint and dismiss Cabinet Ministers, due to party and coalition requirements, they are often a good deal more independent than the above principles might indicate. Chancellor must heed the wishes of his/her cabinet and his/her party, few formal directives are issued, policy emerges as a result of negotiation among the cabinet and the affected parties.
While the Chancellor does possess a great deal of power, there are checks and balances built into the German system. Parliament has more ability to amend and criticize legislation than we would find in the British system (more on this in a few moments), Chancellor also lacks the ability to dismiss Parliament and call new elections, also something that we would find within the British system. However, this is balanced by a limitation on the ability of the ability of Parliament to remove the chief executive. If the Bundestag wishes to remove a Chancellor, the members must also simultaneously agree on a successor, means that the Chancellor can lose a vote here and there and also that his/her opponents must also be able to agree on who will succeed him/her. Has only been attempted twice since the establishment of the FRG, and has only succeeded once - Kohl succeeded Helmut Schmidt in 1982 (mention how this happened).

2. The President
Primarily a ceremonial post. President has official duties of meeting with visiting heads of state, visiting foreign nations, and other such matters. Expected to be above politics. No direct election to the office, the President is selected for a five year term (maximum of two terms) by a federal convention attended by all members of the Bundestag and an equal number of reps selected by the legislatures of each of the states. Office presently held by Johannes Rau (1999).
Most of the non-ceremonial functions of the President - signatory of treaties, appointment of the Chancellor, signing of laws, dissolution of Parliament in the event of a non-confidence motion passed by the opposition, etc - occur on the advice of the Chancellor. However, the basic law is rather vague about what might happen in the event that the President decided to ignore the advice of the Chancellor (dissolution of parliament, laws, etc.). Has yet to be tested.
President is an important national symbol, also is the one national figure who stands above the fray and can help shape the political agenda of the nation through actions and speeches.

D. The Policy Process

Like most other democratic states, the impetus for legislation can come from almost any quarter, from the disenchanted individual to an interest group to elected officials, etc. However, for the formal expression of these ideas, turning them into legislation, they must go through the legislative process.

1. Introduction

Most legislation (roughly 2/3) is introduced by the executive branch (Chancellor and cabinet). Chancellor is the primary policy spokesperson for the gov’t and for the majority (or coalition) within the Bundestag. Responsibility of the executive to propose legislation to carry out the announced program of the government. Bills are cleared through the cabinet prior to their introduction, with the Chancellor serving as the mediator over any disputes that might arise. Once the executive has agreed on such a proposal, it is very likely to be passed due to the fact that they also represent the majority (or coalition) within the Bundestag. Roughly 80% of those bills introduced eventually passed.
Also, 30 members of the Bundestag may jointly introduce a bill (about 20% of legislation), individual members may also introduce private members bills, but these are usually involving minor issues or constituency matters, roughly 30% of these types of bills will actually pass. Also, a majority of the state governments represented in the Bundesrat (9 of 16) may also introduce legislation, but this is rare.

2. Deliberation

Once the bill has come out of the Cabinet, it is sent to the Bundesrat for review, at this stage the Bundesrat cannot formally affect the bill, that comes a little later. After the bill emerges from the Bundesrat, it is given a first reading on the floor of the Bundestag, where it is assigned to the appropriate standing committee. It is at the committee stage that the greatest opportunity for revision exists. Committees can hold hearings, consult with relevant interest groups and examine the proposal. Once the committee reports out the bill then it is sent to the floor of the Bundestag for two further readings, debate and a vote. After it leaves the committee, then there is limited opportunity for real change as the political parties have already established their positions on the issue, debate at this point is largely symbolic intended to raise public consciousness with respect to the issue.

3. Voting

After the third reading and debate in the Bundestag the bill is then voted upon. If passed, then it is passed along to the Bundesrat. The Bundesrat also studies the bill in committee form before offering a vote. If they pass the bill, then it goes on to the Chancellor. If they do not approve of it in the current form, then a joint mediation committee is formed comprised of members of both chambers. With the differences resolved then the bill is resubmitted to both houses, if the bill concerns state governments or areas of co-equal responsibility then the Bundesrat can issue a final veto of this compromise and it is dead. However, if it falls into another area then this veto can be overridden. If the bill is approved then it is sent along to the Chancellor.

4. Signature

The Bill is then sent along to the chancellor for signature, it is most likely that he she will approve of it, as the cabinet has been influencing its course along the way, following the signature of the Chancellor it is then sent to the Federal President for approval. Has the right to veto, but has yet to do so. The bill then becomes law.

5. Challenge
The law may then be challenged by any citizen in the constitutional court, where it is examined to ensure that it is consistent with the Basic law. Court is composed of 16 member, with 8 selected by the Bundestag and 8 selected by the Bundesrat (need 2/3 majority for selection). Court is divided into two bodies with half dealing with civil liberties under the Basic Law, articles one through twenty and the other half dealing with relations between different levels of government and political matters (elections, parties, international law). Challenge may be made by losers in the legislative process or by a private citizen, the source of a vast majority (90%) of the complaints. Court had heard challenges to more than 2,100 cases by the early 1990s and had invalidated more than 800 laws.
- Complex legislative process due to the inclusion of the Bundesrat.
- May be driven by parochial interests
- Federalism
- Role of Constitutional Court.
- Chancellor government.