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A more direct democracy in Germany (Part 3)

Federalism

by Christian Fischer

This article is the third part of the series on A more direct democracy in Germany. Part 1 and 2 were published in Current Concerns No. 8 of March 26 and No. 12 of May 21. In this part, the focus is not on the concrete abuse of democracy in Germany, but primarily on the existing institutions available to the sovereign, the citizenry, as well as on the opportunities of developing those institutions towards more direct democracy.
This article focuses on federalism, which many people today hardly understand as a core element of democracy, even though it is. Democracy works basically decentralised and subsidiary. What can be decided at lower levels should be decided there. For further decisions, decision-making authority is transferred from the lower levels to the higher levels – but without any loss of sovereignty! The lower level can revoke this transfer at any time. So much for the ideal. You would therefore always have to start with the community when talking about democracy, but here we consider the national level. We will look at the  communal level in another part of the article series.

Reality

Germany is a federation of different countries (Länder: german plural of land). The Länder are individual states! Each of them has a constitution, a legislature, an executive, and a judiciary. This is more visible in the US, where they are also called states. In Switzerland as well, the canton is seen as a state. The Confederation is a federation of states. In a  mutual association each member has equal weight.
The states of the Federal Republic of Germany were founded after the Second World War, partly even before the Federal Republic was established, partly they were incorporated afterwards and partly also reformed by referendums! The relationship between the Federal Government and the Federal States is today regulated in a complicated manner and has gradually changed over the decades in favour of the Federal Government. This trend continues to this day.
Article 70 of the Basic Law (German constitution) defines that legislative authority lies with the Länder, with the exception of the issues described in Article 73 of the Basic Law, namely foreign policy, foreign trade, customs and border management, aviation, federal railways, industrial property rights, weapons and explosives law, use of nuclear energy, to name the most important ones. Article 74 of the Basic Law defines a “competing legislation” for a number of topics which can be regulated by both the Federation and by the states. Up to date, the Federal Government has taken over the lead on many things.1 Currently, education policy, a classic state task, is the subject of increased federal influence. The states are to relinquish some of their competences in exchange for financial assistance from the federal government, which has met with resistance from some state governments, but was approved by a majority in the “Bundesrat” (German Federal Council) in March 2019.
There are numerous committees within the executive bodies of the Federation and the states where joint tasks are negotiated and decided. The legislative bodies of the states work practically only as final approval bodies, not as noteworthy actors. In fact, the financial sovereignty of the states has been continuously undermined by the increasingly centralised distribution of tax revenues. No wonder with a German Bundestag that in the early 1990s disempowered itself with the new  Article 23 of the Basic Law in favour of the “superordinate” Brussels executive-legislative.2 The same anti-democratic spirit was at work. For someone who even surrenders national sovereignty, Länder sovereignty has been worth nothing.
At the federal level, there is the “Bundesrat” as a Länder chamber, which has a say in the laws passed by the Bundestag, as far as Länder interests are concerned. This affects about 40 % of all federal laws. However, the “Bundesrat” is not a democratically elected Länder chamber. Here, pre-democratic traditions were continued. Since the 17th century, under the emperors, the chamber existed as “Bundesrat” and adhered to this function in the Prussian Empire until 1918.3  In 1949, this tradition was continued by creating a chamber of state governments as ““Bundesrat””. Although today’s “Bundesrat” has a legislative function, it consists of executive bodies, i.e. the representatives of the Länder governments. This is unique in the world of democracies – apart from the European Union, which does not deserve the name democracy anyway.
Depending on the population, the Länder have 3–6 votes in the “Bundesrat”, which is actually a conference of governors. But not every citizen or every state is equally weighted. The number of inhabitants of the federal states vary between less than 1 million and about 17 million. In addition, each state may only vote unanimously, even if the state government is governed by a coalition of parties and opposition is in place. This dictates a uniformity that cannot nearly reflect the electoral will of the state. Minorities have no say here. Remoteness from citizens is thus forced on this executive legislature almost institutionally. With “success”, because many citizens see the “Bundesrat” as nothing more than another, rather dispensable power body of the parties, but hardly a chamber for Länder interests at the federal level.

Outlook

The states must fully exercise their sovereignty as intended by the Basic Law and reclaim competences that have been transferred to the federal or even European level. This is a major project which cannot be elaborated on here. Nevertheless, it is a democratic necessity in the sense of sovereignty that must act from the bottom up. The reverse direction is a hallmark of dictatorships or central states, which the Federal Republic is not according to the Basic Law.
The “Bundesrat” should be constructed as a genuine legislative body of the Länder, which would be possible within the framework of permissible amendments to the Basic Law. This is the case in the USA and Switzerland, exemplary in this respect: here the state representatives at federal level are directly elected and the same number is elected from each state. In the second Congress Chamber, the Senate, two senators sit in Washington for Vermont with 700,000 inhabitants and for California with 39 million inhabitants. The same applies to the Swiss Council of States.
Is this unfair? No, because at the federal level the Länder are units with equal rights, hence also the units have to be weighted equally. Is not every state equally weighted in the UN? The citizens of the individual states could only have the same weight in this context if the states happened to have the same number of inhabitants. But they are political entities that have emerged from history, sometimes democratically legitimised by decisions taken in advance, sometimes afterwards – but have now grown into units that in some cases have even been confirmed by referenda in Germany! As a member of a federation, no country may stand above or below another. This is a fundamentally democratic principle of a cooperative. Otherwise it would not be a cooperative but a kind of public limited company with greater weight for the larger participants. At the federal level, “one state, one vote” applies by analogy, just like “one man, one vote” applies in the case of elections within each unit.
The principle that every citizen has an equal vote applies, by the way, to the professor of economics as well as to the citizen without a diploma. Should this also be called into question? It would not be cooperative-democratic if the weight of the countries were to be measured according to their internal strength and not according to the fact that each country forms an equal unit next to the other. By the way, “one man, one vote” is not really precise in citizen elections, too: every citizen votes in his constituency. On average, the electoral constituencies comprise 200,000 citizens – but in fact the electoral constituencies differ considerably in their number of inhabitants so that unfortunately the individual citizens are weighted differently. Should a census be carried out before each election and the constituency rules changed in a new and “fair” way? No, one must live with these “injustices” as long as they do not take blatant forms.
In the case of the federal state chamber, however, there would be no injustice if every state represented in the federal state chamber had the same right to vote. The only alternative would be different divisions of the states which would have to be wanted from below. In France such a thing has been ordered centrally with the Departements, certainly very “fair”, but not for the benefit of a democratic culture.
For the promotion of a federal and thus democratic consciousness, the following is particularly important: The “Bundesrat” should be elected directly. This would strengthen the citizens’ awareness of the importance of their own country as part of the Confederation. A different electoral law could come into play than in the elections to the “Bundestag” and “Landtag”. The “Bundesrat” does not represent 299 constituencies, but 16 states. At present, the “Bundesrat” has 69 members with 3-6 votes per state. One could, for example, give it 64 members, 4 for each federal state. There is no need for a double vote for person and party, if one wants to realise personality choice and minority protection.
A proposal: Every citizen has one vote, he votes for one person, but the first 4 candidates are elected. They can be party members, but do not have to be if they have a certain number of supporters in their country. It may be unfair that the candidate with the most votes is elected in the same way as the fourth-placed candidate. This would certainly privilege small parties or non-party representatives. At the same time this can be a compensation for the overemphasis especially on the large parties in the Bundestag which can still exist according to the proposal in part 2 of this article. It may also be an incentive to form new electoral alliances specifically for the interest of the state.
Granted: This proposal can be further optimised. A direct election of the Bundesrat and the implied right to vote is only one of the ways to strengthen the good intent of the Basic Law for a federal state. At least as important is the more consistent implementation of practical state sovereignty in view of the creeping erosion of state competences. The Länder  must be more consistent in keeping their constitutionally desired tasks in their national parliaments or in bringing them back there. What is decisive here is an appropriate distribution structure and decision-making authority for tax revenue. This must also take place from the bottom up, not top-down. Switzerland is an instructive example for this. If the citizens can also decide directly on their tax revenues (Part 1) and free themselves more from party representation (Part 2), this can also be an incentive for strengthening the Länder and thus for decentralised democracy.
The basic idea remains: institutional structures facilitating the participation of citizens in political life will also promote this participation. And a more direct participation of citizens in political life will impede tendencies among political actors who are not oriented towards the common good and the honest mediation of various interests. That is the perspective for a sustainable democracy.    •

1    Rudzio, Wolfgang. Das politische System der Bundesrepublik Deutschland. Wiesbaden 2019, pp. 304
2    Fischer, Christian. zeitgeist-online.de /exklusivonline/nachdenkliches-und-schoengeistiges/1040-demokratie-braucht-nation.html
3    Rudzio, Wolfgang. loc. cit., pp. 255