Bundesrat of Germany
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The German Bundesrat (literally "Federal Council"; pronounced [ˈbʊndəsʁaːt]) is a legislative body[a] that represents the sixteen Länder (federated states) of Germany at the national level. The Bundesrat meets at the former Prussian House of Lords in Berlin. Its second seat is located in the former West German capital of Bonn.
|German Bundesrat |
|Founded||23 May 1949|
First Vice President
Malu Dreyer, SPD
Since 1 November 2017
Second Vice President
Government* (22) |
|Former Prussian House of Lords building, Berlin|
The Bundesrat participates in legislation, alongside the Bundestag, the directly elected representation of the people of Germany, with laws affecting state competences and all constitutional changes requiring the consent of the body. For its similar function, it is sometimes described as an upper house of parliament along the lines of the US Senate, the Canadian Senate or the British House of Lords.[a]
Bundesrath (from 1901 on: Bundesrat, according to a general spelling reform) was the name of similar bodies in the North German Confederation (1867) and the German Empire (1871). Its predecessor in the Weimar Republic (1919–1933) was the Reichsrat.
The political makeup of the Bundesrat is affected by changes in power in the states of Germany, and thus by elections in each state. Each state delegation in the Bundesrat is essentially a representation of the state government and reflects the political makeup of the ruling majority or plurality of each state legislature (including coalitions).
The historical predecesor of the Bundesrat is the Federal Diet of the German Confederation (1815-1848, 1850/1851-1866); in German oficially Bundesversammlung but often called Bundestag. That Federal Diet consisted of the representatives of the member states. The first basic law (Bundesakte) of the German Confederation listed how many votes a member state had, for two different formations of the diet. The diet was the only organ, there was no division of powers. The diet was chaired by the Austrian representative.
In the revolution year of 1848, the Bundestag transferred its powers to the Imperial Regent and was reactivated only in 1850/1851. In several other attempts to reform the Confederation, it was the idea to keep the Bundestag but install also a parliament and a court. One of these attempts, the (proposed) reform act of 1863, already introduced the term Bundesrath. With the dissolution of the Confederation in August 1866, the diet and the federal law ended.
On July 1st, 1867, the North German Confederation was established as a federative state. The Reichstag, elected by the North German men, was one legislative body. The other one was the Bundesrath (old spelling). This organ was expressly modelled after the old diet. When the federative state was renamed Deutsches Reich (German Empire) in 1871, the Bundesrat kept its name.
Whilst appointed by state governments just as today, the delegates of the original Bundesrat—as those of the Reichsrat—were usually high-ranking civil servants, not cabinet members. The original Bundesrat was very powerful; every bill needed its consent, equaling it to the popularly elected Reichstag. It could also, with the Emperor's agreement, dissolve the Reichstag.
In the revolution of 1918, the revolutionary organ Rat der Volksbeauftragten limited the power of the Bundesrat to its administrative functions. A Staatenausschuss (committee of states) accompanied the reform of Germany but had no official role in installing the new constitution. Under that Weimar Constitution, August 1st, 1919, it was replaced by the Reichsrat (1919–1934).
The Reichsrat of the Weimar Republic (1919-1934) had considerably less influence, since it could only veto bills—and even then be overruled by the Reichstag. However, overruling the Reichsrat needed a majority of two-thirds in the Reichstag, which consisted of many parties differing in opinion. So, in most cases, bills vetoed by the Reichsrat failed due to the lack of unity among the Reichstag's constituent parties. The Reichsrat was abolished by a national socialist law in 1934, roughly a year after Hitler had come to power.
The Bundesrat met in the same building as the Reichstag, since 1894 in the building that is today known as Reichstagsgebäude. After 1949, the Bundesrat gathered in the Bundeshaus in Bonn, along with the Bundestag, at least most of the time. It had a wing of the Bundeshaus especially erected for the Bundesrat.
In 2000 the Bundesrat moved to Berlin, just as the Bundestag one year before. The Berlin seat of the Bundesrat is the former Prussian House of Lords. The Bundesrat wing in Bonn is still used as a second seat.
For the Federal Diet of 1815, the basic law (Bundesakte) established two different formations. In the Plenary, for the most important decisions, every state had at least one vote. The larger states Austria, Prussia, Bavaria, Saxony, Hannover and Württemberg had each four votes, and the lesser states three or two. Of the 39 states, 25 had only one vote.
The North German Confederation was a different entity than the German Confederation. But it can also be regarded as the brain child of a long lasting reform debate within the German Confederation. The new Bundesrat even referred to the diet in art. 6, when it newly distributed the votes for the single states. Prussia with its original four votes received additionally the votes of the states it had annected in 1866, i.e. Hanover, Hesse-Kassel, Holstein, Nassau and Frankfurt, adding up to 17 votes. The total number of votes in 1867 was 43 votes.
When the South German states joined in 1870/71, the revised constitutions allocated generously new votes for them. Bavaria had 6 votes, Württemberg 4, Baden 3 and (the whole of) Hesse-Darmstadt 3. The total number went up to 58 votes, and in 1911 with the three votes for Alsace-Lotharingia to 61 votes. The Prussian votes remained 17:
|Prussia||(including states annexed in 1866)||17|
|17 other small states||each with 1 vote||17|
The Reichsrat, as a first, had no fixed numbers of votes for the member states. Instead, it introduced the principle that the number depended on the actual number of inhabitants. Originally, for every 1 million of inhabitants the state had one vote. In 1921, this was reduced to 700,000.
No state was allowed to have more than 40 procent of the votes. This was regarded as a clausula antiborussica, counterbalancing the dominant position of Prussia which still provided roughly two thirds of the German population. Also since 1921, half of the Prussian votes were not cast by the Prussian state government but by the administrations of the Prussian provinces.
For example, of the 63 votes in 1919, Prussia had 25 votes, Bavaria seven and Saxony five. 12 states had only 1 vote each.
The composition of the Bundesrat is different from other similar legislative bodies representing states (such as the Russian Federation Council or the U.S. Senate). Bundesrat members are not elected—either by popular vote or by the state parliaments—but are delegated by the respective state government. They do not enjoy a free mandate and serve only as long as they are representing their state, not for a fixed period of time.
Normally, a state delegation consists of the Minister President (called Governing Mayor in Berlin, President of the Senate in Bremen and First Mayor in Hamburg) and other cabinet ministers (called senators in Berlin, Bremen and Hamburg). The state cabinet may appoint as many delegates as the state has votes (all other ministers/senators are usually appointed as deputy delegates), but may also send just a single delegate to exercise all of the state's votes. In any case, the state has to cast its votes en bloc, i.e., without vote splitting. As state elections are not coordinated across Germany and can occur at any time, the majority distributions in the Bundesrat can change after any such election.
The number of votes a state is allocated is based on a form of degressive proportionality according to its population. This way, smaller states have more votes than a distribution proportional to the population would grant. The allocation of votes is regulated by the German constitution (Grundgesetz). All of a state's votes are cast en bloc—either for or against or in abstention of a proposal. Each state is allocated at least three votes, and a maximum of six. States with more than
- 2 million inhabitants have 4 votes,
- 6 million inhabitants have 5 votes,
- 7 million inhabitants have 6 votes.
By convention, SPD-led Länder are summarized as A-Länder, while those with governments led by CDU or CSU are called B-Länder.
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In contrast to many other legislative bodies, the delegates to the Bundesrat from any one state are required to cast the votes of the state as a single bloc (since the votes are not those of the respective delegate). The delegates are not independent members of the Bundesrat but instructed representatives of the federated states' governments. If the members of a delegation cast different votes then the entire vote of the respective state is invalid. This tradition stems from the 1867 Bundesrat.
The delegates of a state are equal to one other in the Bundesrat, hence the minister-president has no special rights compared to his ministers. But it is possible (and even customary) that one of the delegates (the Stimmführer, "leader of the votes"—normally the minister-president) casts all votes of the respective state, even if the other members of the delegation are present.
Because coalition governments are common, states frequently choose to abstain if their coalition cannot agree on a position. As every decision of the Bundesrat requires a majority of all possible votes, not just a majority of votes cast or a majority of delegates present, abstaining has the same effect as voting against a proposal.
Originally from 1867 to 1918, the Bundesrat was chaired by the chancellor, although he was no member and had no vote. This tradition was kept to a degree when since 1919 the Reichsrat still had to be chaired by a member of the imperial government (often the minister of the interior).
Since 1949, the presidency rotates annually among the Minister Presidents of each of the states. This is fixed by the Königsteiner Abkommen, starting with the federated state with the largest population going down. On the other hand the office of the vice-president started with the federated state with the smallest population going up. The President of the Bundesrat convenes and chairs plenary sessions of the body and is formally responsible for representing Germany in matters of the Bundesrat. He or she is aided by two Vice Presidents who play an advisory role and deputise in the president's absence; the predecessor of the current President is first, his successor second Vice President. The three together make up the Bundesrat's executive committee.
The President of the Bundesrat ("Bundesratspräsident"), is fourth in the order of precedence after the Federal President, the President of the Bundestag (No 2 just for ceremonies of interior character – otherwise No 3)., the Chancellor (No. 2 for ceremonies of exterior character) and before the President of the Federal Constitutional Court. The President of the Bundesrat becomes acting Federal President of Germany, in case that the office of the Federal President should be vacant.
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Because the Bundesrat is so much smaller than the Bundestag, it does not require the extensive organizational structure of the Bundestag. The Bundesrat typically schedules plenary sessions once a month for the purpose of voting on legislation prepared in committee. In comparison, the Bundestag conducts about fifty plenary sessions a year.
The voting Bundesrat delegates themselves rarely attend committee sessions; instead, they delegate that responsibility to civil servants from their ministries, as allowed for in the Basic Law (art. 52,2). The delegates themselves tend to spend most of their time in their state capitals, rather than in the federal capital. The delegations are supported by the Landesvertretungen, which function basically as embassies of the states in the federal capital.
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The legislative authority of the Bundesrat is subordinate to that of the Bundestag, but it nonetheless plays a vital legislative role. The federal government must present all its legislative initiatives first to the Bundesrat; only thereafter can a proposal be passed to the Bundestag.
Further, the Bundesrat must approve all legislation affecting policy areas for which the Basic Law grants the Länder concurrent powers and for which the Länder must administer federal regulations. This approval (Zustimmung) requires a majority of actively used "yes" votes, so that a state coalition with a divided opinion on a bill votes—by its abstention—effectively against the bill. The Bundesrat has increased its legislative responsibilities over time by successfully arguing for a broad, rather than a narrow, interpretation of what constitutes the range of legislation affecting Land interests. In 1949, only 10 percent of all federal laws, namely, those directly affecting the Länder, required Bundesrat approval. In 1993 close to 60 percent of federal legislation required the Bundesrat's assent. The Basic Law also provides the Bundesrat with an absolute veto of such legislation.
Constitutional changes require an approval with majority of two thirds of all votes in Bundestag and Bundesrat, thus giving the Bundesrat an absolute veto against constitutional change.
Against all other legislation the Bundesrat has a suspensive veto (Einspruch), which can be overridden by passing the law again, but this time with 50% plus one vote of all Bundestag members, not just by majority of votes cast, which is frequent in daily parliamentary business. Because most legislation is passed by a coalition that has such an absolute majority in the Bundestag, this kind of suspensive veto rarely stops legislation. As an added provision, however, a law vetoed with a majority of two thirds must be passed again with a majority of two thirds in the Bundestag. The Einspruch has to be passed with active "no" votes, so that abstentions count as votes against the veto, i.e. to let the law pass.
If the absolute veto is used, the Bundesrat, the Bundestag, or the government can convene a joint committee to negotiate a compromise. That compromise cannot be amended and both chambers (Bundesrat and Bundestag) are required to hold a final vote on the compromise as is.[a] The political power of the absolute veto is particularly evident when the opposition party or parties in the Bundestag have a majority in the Bundesrat, which was the case almost constantly between 1991 and 2005. Whenever this happens, the opposition can threaten the government's legislative program. Such a division of authority can complicate the process of governing when the major parties disagree, and, unlike the Bundestag, the Bundesrat cannot be dissolved under any circumstances. Such stalemates are not unlike those that may be experienced under cohabitation in other countries.
Some observers[who?] claim that the opposing majorities lead to an increase in backroom politics, where small groups of high-tier leaders make all the important decisions and the Bundestag representatives have a choice only between agreeing with them or not getting anything done at all. The German "Federalism Commission" was looking into this issue, among others. There have been frequent suggestions of replacing the Bundesrat with a US-style elected Senate, which would be elected at the same date as the Bundestag. This is hoped to increase the institution's popularity, reduce Land bureaucracy influence on legislation,[clarification needed] make opposing majorities less likely, make the legislative process more transparent, and generally set a new standard of democratic, rather than bureaucratic leadership.
Other observers[who?] emphasize that different majorities in the two legislative bodies ensure that all legislation, when approved, has the support of a broad political spectrum, a particularly valuable attribute in the aftermath of unification, when consensus on critical policy decisions is vital. The formal representation of the states in the federal government, through the Bundesrat, provides an obvious forum for the coordination of policy between the states and the federal government. The need for such coordination, particularly given the specific, crucial needs of the eastern states, has become only more important.
Supporters of the Bundesrat[who?] claim that the Bundesrat serves as a control mechanism on the Bundestag in the sense of a system of checks and balances. Since the executive and legislative functions are closely intertwined in any parliamentary system, the Bundesrat's ability to revisit and slow down legislative processes is often seen as making up for that loss of separation.
- The Bundesrat is sometimes referred to as the second chamber of the German legislature, but this designation is disputed by some. The German Constitutional Court itself has used the term upper house in the English translations of its decisions, and refers to the Bundesrat as a "second chamber existing beside the parliament". 
- Ralf Heikaus: Die ersten Monate der provisorischen Zentralgewalt für Deutschland (Juli bis Dezember 1848). Diss. Frankfurt am Main, Peter Lang, Frankfurt am Main et al., 1997, p. 48.
- Christopher Clark: Preußen. Aufstieg und Niedergang 1600–1947. DVA, München 2007, p. 624.
- Ernst Rudolf Huber: Deutsche Verfassungsgeschichte seit 1789. Vol. III: Bismarck und das Reich. 3rd edition. W. Kohlhammer, Stuttgart et. al 1988, p. 651.
- "Artikel 51 GG". Basic Law for the Federal Republic of Germany (in German). Federal Ministry of Justice. 1949-05-23. Retrieved 2009-01-18.
- West Germany Today (RLE: German Politics), Karl Koch, Routledge, 1989, page 3
- Reuter, Konrad (2003). "Zweite Kammer?". Bundesrat und Bundesstaat: Der Bundesrat der Bundesrepublik Deutschland (pdf) (in German) (12th ed.). Berlin: Direktor des Bundesrates. p. 50. ISBN 3-923706-22-7. Retrieved 2007-01-04.
Im Ausland wird ein solches parlamentarisches System im Allgemeinen als Zweikammer- System bezeichnet. Für Bundestag und Bundesrat ist dagegen eine gemeinsame Bezeichnung nicht allgemein üblich, und es ist sogar umstritten, ob der Bundesrat eine Zweite Kammer ist. (English: Abroad, such a parliamentary system is in general called a bicameral one. For Bundestag and Bundesrat such a common designation is not usual and it is even contentious whether the Bundesrat is a second chamber at all.)
- "BVerfG, Judgment of the First Senate of 17 July 2002 – 1 BvF 1/01". Para 2. ECLI:DE:BVerfG:2002:fs20020717.1bvf000101. Retrieved 19 November 2016.
If the Federal Government or the Bundestag (lower house of the German parliament) divides a subject-matter between a number of statutes in order to prevent the Bundesrat (upper house of the German parliament) from preventing provisions that in themselves are not subject to its consent, this is constitutionally unobjectionable.
- "BVerfG, Judgment of the First Senate of 24 April 1991 – 1 BvR 1341/90 1". Para 2. ECLI:DE:BVerfG:1991:rs19910424.1bvr134190. Retrieved 19 November 2016.
The Unification Treaty was signed by the federal government and the government of the German Democratic Republic on 31 August 1990. The Bundestag (lower house of the German parliament) and the Bundesrat (upper house of the German parliament) approved this Treaty, the Protocol, the Annexes I to III and the agreement of 18 September 1990 by the Act of 23 September 1990 – the Unification Treaty Act (Federal Law Gazette II p. 885).
"BVerfG, Judgment of the Second Senate of 30 June 2009 – 2 BvE 2/08". Para 286. ECLI:DE:BVerfG:2009:es20090630.2bve000208. Retrieved 19 November 2016.
In federal states, such marked imbalances are, as a general rule, only tolerated for the second chamber existing beside the parliament; in Germany and Austria, the second chamber is the Bundesrat , in Australia, Belgium and the United States, it is the Senate.