THE FEDERAL COUNCIL AS POTENTIAL VETO PLAYER AND COOPERATION PARTNER IN THE GERMAN LEGISLATIVE PROCESS

Abstract

The Federal Reforms I and II heralded a comprehensive modernization of the state. Together they impact the work of the Bundesrat (Federal Council), the upper house of the German Parliament. In this context, it can be assumed that compatible majorities between the Bundestag (Federal Parliament), the lower house of the German Parliament, and the Federal Council expedite the legislative process and opposing majorities block the process. But, to what extent does the Federal Council, in fact, assume the role of a destructive veto player? This study deepens and extends the insights into this research question with a differentiated, holistic and exclusive analysis of the data material. To describe the institution as a destructive veto player in opposing majorities does not correspond with the empirical analysis. The Federal Council may from time to time behave like a destructive veto player, because the ability to influence the process is derived from the constitutionally entrenched potential to prevent a law. Primarily, however, the Federal Council operates on the level of compromises in the cooperative federal state, in which the process is embedded in a comprehensive, often time-consuming, negotiation mechanism between the Federal Government and the states.

Headnote

The Federal Reforms I and II heralded a comprehensive modernization of the state. Together they impact the work of the Bundesrat (Federal Council), the upper house of the German Parliament. In this context, it can be assumed that compatible majorities between the Bundestag (Federal Parliament), the lower house of the German Parliament, and the Federal Council expedite the legislative process and opposing majorities block the process. But, to what extent does the Federal Council, in fact, assume the role of a destructive veto player? This study deepens and extends the insights into this research question with a differentiated, holistic and exclusive analysis of the data material. To describe the institution as a destructive veto player in opposing majorities does not correspond with the empirical analysis. The Federal Council may from time to time behave like a destructive veto player, because the ability to influence the process is derived from the constitutionally entrenched potential to prevent a law. Primarily, however, the Federal Council operates on the level of compromises in the cooperative federal state, in which the process is embedded in a comprehensive, often time-consuming, negotiation mechanism between the Federal Government and the states.

Key words: Federal Council; Federal Parliament; veto player; legislative process; cooperative federal state.

1RESEARCH CONTEXT AND RESEARCH QUESTION

Apart from the Federal Government and its institutions, the states play a crucial role in the political structure. In terms of article 50 of the Federal Constitution (GG) the states participate in the legislative process and administration of the Federal Government and in matters of the EU, while the Federal Council stands at the centre of the interplay between party-political competition and the federal system. The Federal Council is of particular importance as a veto power when there are divergent majorities in the two legislative institutions, and also when the majorities are aligned - a veto power, which it takes from its position in the Constitution (Jun 2011, 107).2

After the state election in Lower Saxony in 2013, the newspaper Süddeutsche Zeitung responded with the (translated) headline, „A giant in Europe, powerless at home" (Rossmann 2013). From this and various other media articles, one could deduce that the change in government resulting from the election to a coalition between SPD and The Greens was the starting gun for blocking politics in the Federal Parliament. Until October 2013, the election results gave the social democrats and the Green Party a majority in the Federal Council. Thus, they were in a position to block legislative proposals of the coalition government in the Federal Council. A similar situation existed in, for example, 1999. The surveys forecasted a clear victory for the SPD in the Hessian state election. However, on February 7, 1999 the CDU won. Not only did the SPDGreen coalition lose its position of power in Hessen, but it also lost the majority gained in the Federal Council shortly before. Only after the state election in Lower Saxony in 2013 the SPD and Greens temporarily controlled the Federal Council for the first time again with the help of the Left Party. Until the autumn of 2013, a CDU-FDP majority opposed this majority in the Federal Parliament. With a majority in the Federal Council, the local political forces had more blocking power again. The media were convinced this would change the tectonics of power in the Federal Republic, since no policy could be construed without the consent of the social democrats and the Green Party (Rossmann 2013; Bannas 2013).

In general, it is certainly justified to assume that constellations in the Federal Parliament and Federal Council which are party-politically aligned, or compatible, expedite the legislative process in relative terms, while diverging, or opposing majorities, increasingly block the legislative process. Also on power-political considerations it appears to be quite logical that compatible majorities trend towards increased solidarity, and with it, to supportive (constructive) structures. Should the majorities be constructed of opposing forces, it may be assumed that there will be a tendency to build vetoes, and that the interaction will trend towards more competitiveness (destructive structure) (Hesse and Benz 1988, 80).

In particular, the question is whether and under which factor constellations opportunities for blocking tactics are used by the Federal Council - and how extensively. Or, whether the potential to block remains on the theoretical level, and is in practice merely a mechanism of secondary importance - contrary to the accepted view. The research question is, therefore, whether, when and how intensively the Federal Council, in fact, operates as a „destructive" veto player, or whether it is perhaps more likely to produce consensus decisions across the democratic-competitive party politics? In other words, whether it operates as „constructive" veto player, and if it is the case, why?

The central finding, namely that - quantitatively considered - the Federal Council only allows a small percentage of draft bills to scupper, and exercises its position as veto player in the cooperative federal system constructively, is widely known in this general context. There are corresponding references in the literature (for example, Jun 2011, 106-133; Träger 2012, 39-78; Abresch and Leunig 2012, 79-106; Leunig 2012, 149-183; Leunig and Träger 2012a, 185224; Träger and Thiel 2012a, 225-260; Träger and Thiel 2012b, 261-288). But, the insights gained from this study, extend far beyond the central finding. They offer a nuanced extension, or deepening of the existing knowledge, since the data material was prepared, combined, aggregated, analysed and interpreted in a unique manner, and based on a holistic consideration of all German legislative periods. Further, a distinction was made between veto laws and laws requiring approval. Finally, a unique evaluation grid was employed to produce the results of the study.

2FEDERAL COUNCIL AS POTENTIAL AN INSTITUTIONAL VETO PLAYER

At the core of the veto player theory stands the question how the number and composition of veto players block, or permit political results (Blank 2012, 7).3 Tsebelis defines the veto player as „individual or collective actors whose agreement is necessary for a change of the status quo. It follows that a change in the status quo requires an unanimous decision of all veto players" (2002, 19). The probability that the status quo will be changed drops as the number of participating veto players grows. Furthermore, blockages emerge easier, when potential veto players are ideologically far apart, when there are many destructive powers, or when these powers are highly cohesive. Analog to this, it can be assumed that a high number of ideologically united, constructive powers support political processes (Reiners 2008, 40; Reiners 2011, 566-567; Blank 2012, 29). Furthermore, it must be pointed out that in this bicameral configuration of federalism an extended or alternative presentation of the theory exists based on veto points, which has often been criticized and expanded upon. The more points are present in the political system, or in an institutional structure of a democracy, the more difficult political processes become, and the more difficult it becomes to change policies or structures (Kaiser 1998, 537; see Immergut 1990, 391-416; Kaiser 1997, 436).4

The Federal Council is a potential veto player. That is the case, irrespective of whether power is actually applied, for instance, by preventing, or pushing through specific decisions. Much more important is that the potential exists to do this. With reference to the research question, the issue is, therefore, whether and in which constellations of the Federal Council, it uses its power „cooperatively, or constructively".5 It is, moreover, possible that potential veto players behave neutrally. In other words, they neither actively support the process, nor block it, thereby opening space for a government to move.

Furthermore, the Federal Council assumes the position of a collective, constitutional veto player in the legislative process. Institutional veto players are „individual or collective veto players specified by constitution" (Tsebelis 2002, 79).6 Under specific circumstances they can, however, also develop into party-political veto players (partisan veto players), for example, when opposing majority relationships prevail between the Federal Parliament and Federal Council (Tsebelis 1995, 289-325). This doesn't necessarily mean the „opposing majority" is interested in an on-going stance of non-cooperation. Rather, it is possible to decide from case to case whether - and to what extent - the ability to block is relied upon.

Finally, the parameters of the veto player theory definitely present itself when considering the Federal Parliament in terms of the research question. Then, the focus falls on identifying the veto players, on how many there are, and on the question whether they let themselves be absorbed. In the Federal Parliament parties mostly participate in the decision-making process in coalitions (see Buzogány and Kropp 2013, 261-293).7 Because of this, the number of veto players has the potential to rise.

When the same majorities, or constellations, are present in the Federal Council and in the Federal Parliament, the mechanism of absorption theoretically comes into play, since both governing parties (in other words, two party-political veto players) absorb the Federal Council (as institutional veto player) and the two legislative organs become a close match. In this way, the CDU/CSU-FDP coalition had majorities in the Federal Parliament and in the Federal Council after the parliamentary elections of 2009, which reduced the number of veto players from three to two actors. On the other hand, if one looks at the situation from, for example, February 2013, a period in which the majority relationships in the two legislative organs differed, the governing parties were retained unchanged as veto players. Then, the Federal Council played the role of destructive veto player - it was assumed by many - and accordingly, no absorption occurred. After the election in Lower Saxony, the former opposition on national federal level announced it will use the Federal Council to better monitor the work of government, which explicitly pointed to the Federal Council potentially being used an as instrument for exerting pressure.

3FEDERAL REFORM, VETO LAWS AND LAWS REQUIRING APPROVAL

The Federal Council is a collective body. Its members are appointed by majority vote for the duration of their affiliation to the particular state government, are seconded by this state government, and differentiate themselves from members of the Federal Parliament in one essential way: When they vote, they are not independent, but bound by the directives of their state governments (Riker 1992, 101-116; Hitschold and Reiners 2013, 228-232).8

The committee participates, among others, in the legislative process.9 Apart from the representatives of the Federal Parliament and the Federal Government, the committee also has the right to initiate legislation, thanks to article 76 paragraph 1 of the Federal Constitution. A draft bill of the Federal Council must be accepted by it with a majority of votes. However, the possibilities for cooperation and the powers depend on the type of draft legislation involved. The institution has either the right to veto, or the right to approve (Lhotta 2003, 19-21; Stüwe 2004, 27-29; Johne 2004, 10-17; Jun 2011, 109).

In the case of bills requiring approval, the Federal Council must expressly approve with a majority of its votes. Here it has an absolute veto right. Bills that need approval are those, which amend the Federal Constitution, impact the finances of individual states in specific ways, or whose implementation will interfere with the organizational or administrative authority of states. In practice, the Federal Council does not withhold its approval right away, but first try to find a compromise by appealing to the mediation committee,10 which accounts for the clear majority of the mediation processes (Stüwe 2004, 27-29; Jun 2011, 109; Scherf and Bücker 2011, 144; Hitschold and Reiners 2013, 278281). 1

If one differentiates between the various types of acts, one finds that, in the course of time, the approval of the Federal Council also became a requirement for draft bills, which impact other interests than the core interests of the states. Hence, the Federal Council is also referred to as the hinge of a self-blocking party state. In the course of the history of the Federal Republic, a shift occurred in the cases requiring approval, on the one hand, and the proportion of legislative proposals, which requires approval, also changed as measured against the total of all the laws adopted. While the Parliamentary Council expected 10 percent of all laws to require approval, and while actually about 40 percent required approval in the early days of the Federal Republic, this number had grown to about 60 percent before the federal reform, which clearly illustrates that the veto power of the Federal Council grew over time.12 The judgments of the Federal Constitutional Court also contributed to this growth. This institution was upgraded by the Federal Council to one, which is roughly on an equal footing with the Federal Parliament (Schmidt-Jortzig 2005, 6-12; Reutter 2006, 14; Federal Council 2012).

With federal reform as elementary ingredient of a comprehensive modernization of the state, a reduction of the expanded involvement of the Federal Council was intended, which intentionally, and partly also substantially, reduced the number of approval events for the Federal Parliament, or at least altered it for the Federal Parliament. Since the federal reform of 2010, the proportion of acts requiring approval has been returned to a share of 38.3 percent (reference date October 28, 2013). In the ten months before the reform was adopted, the share still stood at about 55.9 percent (June 2011, 112-114; Zohlnhöfer 2011, 155).

At the same time, the reform increased the room to maneuverer of the states in the legislative process - even if only moderately. The Federal Legislature commended the Federal Council for its effort to standardize administrative procedures in the states for the implementation of laws (Kühne 2005, 3-5; Schultze 2005, 13-19; Sturm 2005, 195-203; Höreth 2007, 712-733; Höreth 2010, 117-138; Kropp 2010, 190-209; Buzogány and Kropp 2013, 261-293; see Scharpf 2005). It will, however, also be more attractive for states to insist on the retention of their right of approval in future, since they remain contributors to the federal legislative process in that way. It is, therefore, also to be expected that states will in future gladly part with their wider autonomy in exchange for the „lentil soup of co-determination" (Scharpf 1994, 73).

With all other laws, the Federal Council (only) has a veto right, or rather a suspensive veto right. In the case of these laws, the veto power is weaker (Scherf and Bücker 2011, 144; Blank 2012, 81). Upon receipt of a veto draft bill adopted by the Federal Parliament, the Federal Council has the option to do nothing, which would signal its approval, or it can call the mediation committee within three weeks, which assumes a hinge function. The mediation committee gives Federal Parliament an opportunity to contribute to the formulation of proposed amendments. After completion of the process, the Federal Council can raise an objection within two weeks, if it disagrees with the new decision of the Federal Parliament. If the decision was taken with a majority of the votes in the Federal Council, it can be dismissed with a majority of the votes of the members of the Federal Parliament. If the Federal Council made the decision with a twothirds majority, a dismissal thereof by the Federal Parliament also needs a twothirds majority (simple two-thirds majority), or at least an absolute majority (majority of the members of the Federal Parliament (Posser and Vogel 1989, 213-225; Jun 2011, 145; Hitschold and Reiners 2013, 280-281).

4CLASS TYPES, ASSUMPTIONS AND MAJORITY RELATIONS

To analyse the subject and make a useful comparison, the relationships in the Federal Council are divided into class types and theories formulated in advance. The following class types present themselves:

* Class type 1: Dominance of the Federal Government extends also to the Federal Council (cooperative, constructive structure)

* Class type 2: Dominance of the opposition in Federal Parliament (competitive, opposing structure)

* Class type 3: Dominance of „neutral" political powers in the Federal Council, or stalemate situation, if none of the political powers in class type 1 or 2 has a majority in the Federal Council (neutral structure/stalemate).

The typecasting and upcoming hypothesizing make it possible to draw conclusions about which factor constellation brings which results, and therefore, under which circumstances certain behaviour can be expected, or rather, which strategies are deployed. The hypotheses are deducted from the class types, and they are:

* Thesis 1: on the basis of class type 1, therefore, the Federal Government dominates also in the Federal Council; the latter is more likely to act moderately competitively and in a comparatively cooperative, or constructive way, as reflected in a downward trending number of objections to veto laws emanating from the Federal Council; and with laws and legislative decisions of the Federal Parliament requiring the approval of the Federal Council, the tendency is for the Federal Council to withhold approval less often, and for such laws to seldom fail.

* Thesis 2: on the basis of class type 2, therefore, the opposition dominates in both the Federal Parliament and Federal Council; the latter is more likely to act competitively and destructively, as reflected in an upward trending number of objections to veto laws emanating from the Federal Council; and with laws and legislative decisions of the Federal Parliament requiring the approval of the Federal Council, the tendency is for the Federal Council to withhold its approval more often, and for such laws to fail more often.

* Thesis 3: on the basis of class type 3, therefore, the „neutral" political powers in the Federal Parliament dominate, leaving a stalemate situation; when therefore none of the powers in the class types 1 and 2 holds a majority in the Federal Council, they are more likely to act moderately competitive, but less competitive (destructive) than when based on the relationships ruling class type 2, as reflected in lower values than values typical for opposing relationships (class type 2).

The parties of the governing coalitions of the states, which represent the current Federal Government in Berlin (a CDU/CSU-SPD coalition), currently have 16 votes in the Federal Council.13 The opposition has no vote. The remaining 53 votes belong to neutral powers, since at least one of the partners of the Big Coalition participates in the other state governments.14 This means, the current CDU-SPD coalition has no majority in the Federal Council. The Big Coalition needs at least 19 votes from the politically neutral camp for a simple majority. As a result, the parties of the current Federal Government must cooperate with other parties. For the purpose of the analysis, the exact voting shares are marginal, and therefore only the respective majorities in the Federal Council are displayed in Table 1 below. In other words, either a majority of states represented in the Federal Government (R states), or a majority of states representing the opposition in the Federal Parliament (O states), or a neutral situation (stalemate situation). Since September 1949, the majority relationships have been as follows:

If one looks at the majority relationships in the Federal Council and the Federal Parliament down the entire table, one notices significant swings. One notices the comparatively higher voting shares of the so-called neutral camp on several occasions.15 Furthermore, one notices that the swings in the majorities in the Federal Council, which explicitly means swings in states from R dominance to O dominance, or vice versa, or to N/P dominance, do not always correspond exactly with the legislative periods of the Federal Parliament, as shown in Table 2. Speaking against aligning individual periods of majorities in the Federal Council with the corresponding legislative periods of the Federal Parliament, is the fact that the majorities in the Federal Council change in almost every state election within a single, federal legislative term. More accurate would, therefore, be a method narrowly focused on the periods of opposing and cooperating majorities, which is, however, difficult to do, since the data material in Table 2 merely shows the legislative periods, and is not available in the aforementioned detail, and can only be prepared with much effort. Out of necessity, therefore, the focus is on individual, federal legislative periods - an approach, which is research-economically driven, but nonetheless still, delivers valid conclusions, and which delivers depth of focus, which is adequate, when the entire spectrum of the data material is considered.

If one looks at the legislative periods of the Federal Parliament, one finds that so-called neutral relationships existed consistently in the 1st, 2nd, 3rd, 6th and 18th legislative periods. In the 12th, 13th, 14th and 17th periods this was not consistently the case. However, it was (more or less) predominantly the case, meaning in these time cycles there were swings in states with R dominance or O dominance in the Federal Council.16 If one looks at the time cycle of a state's R dominance in the Federal Council, and thus at compatible majorities for the government on federal level, this is consistently the case in the 10th and 11th legislative period of the Federal Parliament and (more or less) predominantly the case in the 4th, 5th and 16th period, which means, that in these time cycles there were swings in states from O dominance to so-called neutral relationships in the Federal Council.17 If one looks at the time cycles of states with O dominance in the Federal Council, and therefore to opposing majorities to the government at national level, one finds it consistently in the 7th legislative period of the Federal Parliament, and (more or less) predominantly the case in the 8th, 9 th and 15 th periods, which means that inside these time cycles there were swings in the Federal Parliament from R dominance in states to so-called neutral relationships.18 To back the results up, there follows a focus on legislators in which stable, R-O-N relationships existed in the Federal Council over entire legislative periods, on top of the examination of complete periods. In other words, it puts the spotlight on significant legislative periods of the Federal Parliament.

5STATISTICAL EVIDENCE FOR EXAMINATION CONTEXT

The most appropriate statistics for answering the research question are Federal Council statistics (Federal Council 2012; Federal Council 2013; Federal Council 2017). Fundamental to the research context, is the question how many times the Federal Council actually used its potential power. For this purpose, the reader is referred to Table 2 below.

Of the 3.926 veto laws signed and published by the Federal President, only few went through the mediation process.19 From September 7, 1949 to July 7, 2017 the appeals add up to only 75. In addition, in the entire period the Federal Parliament rejected 63 appeals. Twelve appeals were either not rejected by the Federal Parliament, or not attended to (Federal Council 2013; Federal Council 2017). In the end, the low numbers impact the evaluations and conclusions. Clear is, however, that the number of appeals based on the class type 1 (cooperative, constructive structure; states with R dominance) average around 0.8 in the five legislative periods. In the 10th and 11th legislative periods - periods of continuous R-state dominance in the Federal Council - the average is 0.5 appeals. In the four legislative periods in which the basis was class type 2 (competitive, opposing structure; O dominance in states), the average is noticeably higher at 10.3. In the 7th legislative period - when the legislature was continuously O dominated - five appeals are counted. In the nine legislative periods in which class type 3 (neutral structure / deadlock situation) was the base, the average is 3.3 appeals. In the five legislative periods with continuously neutral relationships, the value is 1.2.

It can be accepted, that the Federal Council's position is not as strong with veto laws as with laws requiring approval. In addition, only few appeals are enforced. They are enforced slightly more often in periods of predominantly opposing relationships than in periods of neutral structures, and especially in periods devoid of compatible majorities in the Federal Parliament and Federal Council.

When it comes to laws requiring approval, the numbers are more meaningful. In the period September 7, 1949 to July 7, 2017 a total of 12.223 draft bills were introduced. Of the 8.177 that were accepted by Federal Parliament and forwarded to and considered by the Federal Council, of which 7.949 were ultimately promulgated by the Federal President, 4.023 were draft bills requiring approval (roughly 50 percent). Of these, the Federal Council withheld its approval of 199 bills in the aforementioned period, which is 5 percent of the laws requiring approval, and which were eventually signed and published by the Federal President.

In election periods with a predominantly cooperative, constructive structure, the average was only 1.7 percent. In the 10th and 11th legislative periods, in which such a relationship existed throughout, the rounded-off average is only 0.3 percent. In election periods of predominantly competitive, opposing relationships, the average is 8.5 percent. In the 7th legislative period, in which such a relationship existed throughout, the value is 7.1 percent. In periods with neutral relationships, the values lie - as expected - between these two numbers (5.4 percent and 3.0 percent with neutral relationships throughout). Tables 3a and 3b illustrate the findings.

Analysing further, one sees in Table 2 that in 108 cases a law nevertheless came into existence after a mediation process, and in 78 cases it finally failed. That means, a failure rate of about 1 percent of the draft bills passed by the Federal Parliament and forwarded to the Federal Council, and considered by the latter. More than 99 percent of the draft bills were passed by the Federal Council without a veto, or after vetoes were repealed.

In legislative periods, which are structured predominantly, cooperative, and constructive, the average failure rate is only a rounded 0.3 percent. In the 10th and 11th legislative periods, in which such relationships existed throughout, the rounded average is only 0.1 percent. In predominantly competitive periods constructed in a confrontational manner, the average is 1.7 percent. In the 7th legislative period, in which such a relationship existed throughout, the value is 1.6 percent. In neutrally structured legislative periods, the values lie in between (1.0 percent and 0.7 percent with neutral relationships throughout).

It can be accepted that, with regards to the institutional veto potential, the Federal Council is in a prominent position when it comes to laws requiring approval. Here it can ultimately prevent a law. However, in practice the second legislative body has until now seldom exercised that power. The number of times the Federal Council withheld its approval dropped from competitive to neutral relationships, and dropped yet again when cooperative, constructive structures existed. This trend can also be observed in the case of the failure of legislation, although it is less pronounced, which means that in the follow-up to the Federal Council's refusal to approve, compromises are mostly reached. In practice, therefore, the Federal Council seldom uses the possibility to finally prevent draft bills.

Overall, it can be accepted, that the three assumptions have been confirmed. In other words, the Federal Council acts cooperatively and constructively when the parties of the Federal Government dominate in the Federal Council. When the parties of the opposition dominate in the Federal Parliament and Federal Council, the latter acts more competitively - although only subtly so. When the neutral powers in the Federal Parliament dominate, or there is an impasse, the body acts less aggressively than in the situation previously described, but more so than stated at the outset. The conclusions for the three class types, however, deviate less from each other than often assumed, and the differences are therefore rather limited, but should nevertheless clearly qualify widely held prepositions.

6ASSESSMENT, POSITIONING IN THE RESEARCH CONTEXT AND CONCLUSION

In the centre stands, among others, the issue whether political processes run smoother when compatible operating structures are in place between the Federal Council and the Federal Parliament, as often assumed, and that the opposite happens, when more competitive structures are in place.

When the results are viewed, the Federal Council cannot be ignored as a veto player, because on the one hand it is irrelevant whether power is, in fact, applied. More important is, that the potential to do it, exists. On the other hand, differences can be identified, even though the results, as they manifested themselves in the different factor constellations, do not vary to the extent often assumed. If one takes a deeper look and examines the different time periods, the contour lines of the individual class types become somewhat clearer.

When relations are compatible between the two institutions, it certainly is somewhat easier to govern. To label the Federal Council a destructive veto player on the premise of competitive relations is, however, to exaggerate. When such conditions exist, delaying tactics are more likely to appear, which makes effective governance more difficult, since the need to negotiate for a mediation procedure becomes more pressing. In cooperative federalism, the Federal Council distinguishes itself with its power to prevent, in other words, with the threat that the draft bill may fail, which leads to multiple amendments upfront and works on the basis that a veto is anticipated (see Burkhard and Manow 2006). Ultimately, this means that the presence of a second legislative institution pushes back many decisions, and embeds them in a context of negotiation. So, the knowledge of different majority relationships unleashes preventative steps, increases the pressure to agree already from the outset of legislative proposals, and sees to it that amendments are made to policies already before or during the legislative processes (Lhotta 2003, 16-22; Johne 2004, 10-17; Stüwe 2004, 27-29).20

Until now, every government has depended on the cooperation of states, which didn't correlate with the party-political constellation of the Federal Government, or only partly correlated with it (Lhotta 2003, 19-20). As a matter of fact, there are most certainly attempts to block, motivated by party-politics, in the Federal Council (Stüwe 2004, 29). If one believes the media, one gets the impression that blocking is an everyday occurrence in politics. The fact is, however, that no permanent refusal to approve is observable, but rather attempts to influence content by way of cooperative co-governance. As a result, the Federal Council has built a reputation as a consensus institution, rather than one of conflict (Lhotta 2003, 20-21; Stüwe 2004, 30; Federal Council 2013; Federal Council 2017).21

Burkhard and Manow modelled the impact of majority relationships in the Federal Council on the strategic interaction orientation of the Federal Government and opposition, and therefore also on the political results, with the help of the auto-limitation theory. They came to the conclusion that majorities, which clearly oppose in the two institutions do not - as a rule - end in open party-political conflict, but rather lead to compromises and considerable political self-restraint from the side of the Federal Government (2006).22 This study points in the same direction.

Looking at the mechanisms for interaction and methods for making decisions in cooperative federalism, it is acknowledged that the majority of modern democracies are categorized as consensus democracies, meaning they display strong elements of negotiation.23 In the Federal Republic of Germany, special emphasis is placed on the competition between parties and the majority principle. These decision-making patterns are characteristic of competitive democratic systems. Seen from this angle, the Federal Republic could therefore be counted as belonging to the type Westminster democracy, if other institutional decision-making structures were not present, which prevent the will of the majority from being enforced. When it explicitly goes about insisting on consensus decisions, the Federal Council as institutional veto player, plays a very significant role.

In the political system of the Federal Republic, the power of the government is restricted relatively severely. This also explains the categorization of the system as one that is fundamentally a consensus-seeking democracy. Not without good reason, Schmidt speaks of the „Grand Coalition State" (2002, 58). That is why the opposition can govern via the Federal Council, when the majorities of the two legislative institutions diverge. Characteristic of this political system, is, therefore, linkages between the parliamentary and the federal arena. The logic of the jostling between competing parties, therefore, contradicts the realities of a consensus-democratic, cooperative federalism.

Both rivalling and cooperative forms are to be found in the decision-making structures of the Federal Government. The interplay between competing parties and consensus connects on the level of the two legislative institutions, whereby there is an inter-exchange between the two forms of interaction (Bräuninger, Geschwend and Shikano 2010, 223-249; see Leunig and Träger 2012b). The two forms stand in a tense relationship, because, on the one hand, the competition between parties make it more difficult to find compromises in negotiations between the Federal Government and federal states. On the other hand, cooperation between Federal Government and state governments weaken the parliaments, and in some circumstances, threaten to torpedo the competition between parties (Benz 2001, 176).

Of significance in this context is the fact that a large part of the legislative proposals (which need approval) is not passed by a majority in the Federal Parliament, but by a coalition of some sorts between the two institutions. Naturally, these negotiations are conducted under the premise of competing parties. But, in reality the process is different. The opposition may conduct itself quasi competitive in the plenary session, and pronounce its opposition to a bill, also when it acted cooperatively in the committee. But, state governments are effectively bound by prior agreements in the Federal Council. Once they have committed to cooperate, they must approve a draft bill. This contradicts the logic of the competing parties, in terms of which the opposition should present itself as the election alternative. A competitive strategy makes a binding cooperation impossible (Benz 2003, 178).

This modus operandi does not annul competition between parties. These agreements can be explained by the specific, structural set-up of the negotiation system in the cooperative federal state, despite the existence of a basic orientation to compete (Benz 2003, 178). To name just two institutions, the Federal Government, with its de facto dominant position in the legislative process, can define the point of departure (set the agenda) of negotiations, when it initiates legislation. The mediation committee is, for instance, also an arrangement aimed at preventing the failure of legislation. It must, however, be emphasized that longer periods with confrontational majorities are not particularly advantageous for policy-making. Compromises are often agreements based on the smallest common denominator, and negotiations often fail exactly when ambitious programs and laws need to be implemented (Benz 1999, 135-152; Burkhard and Manow 2006).

Footnote

2 Lijphart analysed the division of power and power concentrations in 36 democracies. He explains, the Federal Council differs only slightly from the Federal Parliament in terms of its power and democratic legitimacy, and that the Federal Council is one of the strongest institutions in systems with two legislative institutions among democracies studied. With an index value of 4.0, the Federal Council landed in the top position. The average index value of all 36 democracies stood at 2.2 (1999, 26).

3 Regarding the theory: Tsebelis 1995, 289-325; Tsebelis 1999, 591-608; see Tsebelis 2002; Kaiser 1998, page 525; Benz 2003, 208-209, 230; Reiners 2008, 94; Reiners 2011, 566-567.

4 The theory has often been criticized. Among the critics are Blank 2012, 42-43; see Grumer 2011, 52; Wagschal 2009, 117-136; positive criticism of the theory from, among others, Ganghof, Hönnige and Stecker 2009. Differentiating between veto players with points is often a purely semantic exercise, whereby the first part is more focused on actors, and the second part on institutions.

5 Benz describes strategies as constructive, when they enable a decision, in other words, prevent blockages, and lead to a result, which overcomes a situation and contributes to a change in the status quo, and at the same time opens the way for decision-making by the concerned interests and their representatives (2003, 205, 218).

6 These are enshrined in the Constitution. As examples serve the uppermost federal institutions, one of which is the Federal Council.

7 Until now, the Federal Republic of Germany has predominantly been governed by coalitions, while e.g. Great Britain, Spain, Japan, France and Portugal have extensive experience with oneparty governments. In Germany, the situation is different, due to the pluralistic structure of the society and personalized, proportional representation, which as a rule, prevents a single party from gaining an absolute majority (Kropp 2010, 190-209).

8 The votes are divided in line with the class sizes, which are not proportional to the population numbers of the states. The small states have three, the mid-sized four and the big states five votes each. States with the biggest populations (NRW, BW, BY and NdS) each has six votes. Currently, the Federal Council has 69 seats. The absolute majority currently lies at 35 and the two-thirds majority at 46 votes (Hitschold and Reiners 2013, 228-232).

9 The powers are principally regulated by art. 76 of the Federal Constitution.

10 The mediation committee mentioned in article 77, paragraph 2 of the Federal Constitution shall decide on legislative proposals in a combined session, when the two legislative institutions cannot agree. It consists of 16 members from each of the Federal Parliament and Federal Council (one from each state).

11 A distinction is made between legislation, which amends the Constitution, and federal legislation. In the case of constitution-amending laws requiring approval, the Federal Council must approve with a two-thirds majority of the votes, whereby certain areas are excluded (guaranteed existence by article 79, paragraph 3 of the Federal Constitution). In the case of federal legislation, the approval of a majority of the votes suffices.

12 Federal Reforms I and II came into force on September 1, 2006 and August 1, 2009 respectively. After the first stage, which focused mainly on a clear allocation of competences to the Federal Government and states, a reform of the financial relationships stood in the foreground in the second stage (Ekardt and Buscher 2007, 89-98). The revised version of article 84 of the Federal Constitution presented the legislator with more ways to motivate an obligation to approve, or to deny it (Reutter 2006, 14-15; Thiele 2006, 714-719; Eppler 2006, 18-23).

13 If one adds the two CDU-SPD governments (Saarland, Saxony), the SPD-CDU governments in Mecklenburg-Western Pomerania, and the CSU one-party government in Bavaria, one gets 7+3+6 = 16 votes.

14 Either the social democrats govern with the Greens in the other federal states (Bremen, HH, NdS), or the social democrats govern with the Left Party and the Greens (Berlin), the Greens with the CDU (BW), the CDU with the FDP (NRW), the CDU with the FDP and the Greens (SH), the SPD and Greens with the Left Party (TH), the SPD governs alone with the Left Party (BB), the CDU with the Greens (HE), CDU with the SPD and Greens (SA), or the SPD governs with the Greens and FDP (RP).

15 A CDU/CSU-FDP government had a majority in the Federal Council in the periods from November 1962 - October 1966, from October 1982 - June 1990, from October 1990 - April 1991 and from October 2009 - July 2010. A CDU/CSU-SPD government had a majority in the second legislative chamber in the periods from January 1967 - October 1969 and from October 2009 - July 2010. A SPD-Greens government had a majority in the period from October 1998 - April 1999. The opposition had a majority in the Federal Council in the periods from June 1972 - March 1977, from June 1978 - October 1982, from June 1990 - October 1990, from November 1997 - October 1998, from February 2009 - October 2009 and finally, in the period February 2013 - October 2013.

16 Majority relationships in the Federal Council were strongly shaped by so-called neutral powers in the following periods: 12th/14th election period (WP) = about one quarter/about one half year R dominance, 13th WP = about one year O dominance, 17th WP = almost one-and-a-half years R and O dominance.

17 In the following periods majority relationships in the Federal Council were strongly shaped by R states: 5th WP = about one quarter N/P dominance, 4th/16th WP = about one year N/P dominance / a little more than a year O dominance.

18 In the following periods majority relationships in the Federal Council strongly shaped by O states: 9th/15th WP = about one half year R dominance / N/P dominance, 8th WP = a little more than one year N/P dominance.

19 Last two lines in Table 2.

20A coalition (regardless of its disposition) often acts in the shadow of the majority decision. This shadow of the majority strengthens the pressure to find consensus. From this perspective, it may appear unlikely that veto structures in the sense of a „divided government" are present at all (Tsebelis 1999, 591-608). The constitutional separation of powers between Federal Parliament and Federal Council leads to non-decisions in cases of non-agreement, and also to a „Politikverflechtungsfalle" (a joint-decision-making trap) (Scharpf 1985, 323-356; Czada 2003, 181-182).

21 For example, it can be observed that the Government often gives in to the majority of the Federal Council. Furthermore, the government often manages to break through the phalanx of opposition states with promises. In addition, governments often attempt to dispense with arrangements in legislation, which could justify a need for approval (Stüwe 2004, 29-30).

22 If there are small majorities in the Federal Council, both the Government and opposition try to push through less compromising positions, and speculate on the defeat of the political opponent in a vote, so that the situation can, under certain circumstances, develop in an intensive partypolitical conflict, maintain Burkhard and Manow (2006).

23 The capacities of negotiations aimed at finding consensus, are meanwhile rated more positive. Empirical research on democracy has, for example, shown that consensus democracies are, if anything, superior to competitive democracies, since countries with strong negotiationdemocratic elements are often very stable, are furthermore capable of strong economic performances, and can attain high levels of social security (Eberlein and Grande 2003, 187).

References

REFERENCES

Abresch, Mirko and Sven Leunig. 2012. 1962-1969: Dominanz föderaler Konflikte. In Parteipolitik und Landesinteressen. Der deutsche Bundesrat 1949-2009, eds. Leunig, Sven and Hendrik Träger, 79-106. Münster/Berlin/London: LIT-Verlag.

Bannas, Günter. 2013. "Die Grenzen der Gestaltungsmehrheit." Frankfurter Allgemeine Zeitung, 21 January 2013. Available at http://www.faz.net/aktuell/politik/inland/wahl-in-niedersachsen2013/bundesrat-die-grenzen-der-gestaltungsmehrheit-12032978.html.

Benz, Arthur. 1999. Der deutsche Föderalismus. In 50 Jahre Bundesrepublik Deutschland, eds. Ellwein, Thomas and Everhard Holtmann, 135-152. Opladen: Westdeutscher Verlag.

Benz, Arthur. 2001. Der moderne Staat. Grundlagen einer politologischen Analyse. München/Wien: Oldenbourg.

Benz, Arthur. 2003. Konstruktive Vetospieler in Mehrebenensystemen. In Die Reformierbarkeit der Demokratie, eds. Mayntz, Renate and Wolfgang Streek, 205-236. Frankfurt a.M.: Campus.

Blank, Florian (ed.). 2012. Vetospieler in der Policy-Forschung. Wiesbaden: VS Verlag für Sozialwissenschaften.

Bräuninger, Thomas, Geschwend, Thomas and Susumu Shikano. 2010. "Sachpolitik oder Parteipolitik? Eine Bestimmung des Parteidrucks im Bundesrat mittels bayesianischer Methoden." Politische Vierteljahresschrift 51(2): 223-249.

Burkhard, Simone and Philip Manow. 2006. Veto-Antizipation. Gesetzgebung im deutschen Bikameralismus. MPIfG Discussion paper 03/2006, Köln: Max-Planck-Institut für Gesellschaftsforschung.

Buzogány, Aron and Sabine Kropp. 2013. Koalitionen von Parteien. In Handbuch Parteienforschung, ed. Niedermayer, Oskar, 261-293. Wiesbaden: VS-Verlag für Sozialwissenschaften.

Czada, Roland. 2003. Der Begriff der Verhandlungsdemokratie und die vergleichende Policy-Forschung. In Die Reformierbarkeit der Demokratie. Innovationen und Blockaden, eds. Mayntz, Renate and Wolfgang Streek, 173-203. Frankfurt a.M.: Campus.

Eberlein, Burkhard and Edgar Grande. 2003. Entscheidungsfindung und Konfliktlösung. In Lehrbuch der Politikfeldanalyse, eds. Schubert, Klaus and Nils Bandelow, 175-201. München/Wien: Oldenbourg.

Ekardt, Felix and Daniel Buscher. 2007. "Föderalismusreform II. Reform der Finanzbeziehungen von Bund, Ländern und Kommunen." Die öffentliche Verwaltung 3: 89-98.

Eppler, Annegret. 2006. "Föderalismusreform und Europapolitik." Aus Politik und Zeitgeschichte 50: 18-23.

Federal Constitution (BGBl. S. 1), As last amended by the Act of 11 July 2012 (BGBl. I S. 1478). Available at http://www.bundestag.de/bundestag/aufgaben/rechtsgrundlagen/grundge-setz/index.html.

Federal Council (ed.). 2012. Handbuch des Bundesrates für das Geschäftsjahr 2011/2012. Berlin: Bundesrat.

Federal Council. 2013. Die Arbeit des Bundesrates im Spiegel der Zahlen. Statistische Angaben 7 September 1949 to 28 October 2013. Available at http://www.bundesrat.de/cln_161/Sha-redDocs/Downloads/DE/statistik/gesamtstatistik,templateId=raw,property=public ationFile.pdf/gesamtstatistik.pdf.

Federal Council. 2017. Statistik der parlamentarischen Arbeit des Bundesrates (Stand 959. Sitzung des Bundesrates, 7 July 2017. Available at http://www.bundesrat.de/SharedDocs/down-loads/DE/statistik/18wp.pdf?__blob=publicationFile&v=30.

Federal Parliament. 2015. DIP - Dokumentations- und Informationssystem für parlamentarische Vorgänge. Delivered by [email protected].

Ganghof Steffen, Hönnige, Christoph and Christian Stecker (eds.). 2009. Parlamente, Agendasetzung und Vetospieler. Wiesbaden: VS Verlag für Sozialwissenschaften.

Grumer, Lennart. 2011. "Die Vetospielertheorie nach George Tsebelis am Beispiel der deutschen Parteiendemokratie." Journal für Generationengerechtigkeit 11(2): 49-53.

Hesse, Joachim Jens and Arthur Benz. 1988. Staatliche Institutionspolitik im internationalen Vergleich. In Jahrbuch zur Staats- und Verwaltungswissenschaft, eds. Ellwein, Thomas, Hesse, Joachim Jens, Mayntz, Renate and Fritz W. Scharpf, 69-111. Baden-Baden: Nomos.

Hitschold, Hans-Joachim and Markus Reiners. 2013. Der Staat. Grundlagen der politischen Bildung. Stuttgart: Boorberg.

Höreth, Marcus. 2007. "Zur Zustimmungsbedürftigkeit von Bundesgesetzen. Eine kritische Bilanz nach einem Jahr Föderalismusreform I." Zeitschrift für Parlamentsfragen 38(4): 712-733.

Höreth, Marcus. 2010. Die Föderalismusreform in der Bewährungsprobe unter Schwarz-Gelb. Warum der Blick zurück die Prognose des Scheiterns erlaubt. In Föderalismusreform in Deutschland. Bilanz und Perspektiven im internationalen Vergleich, eds. Blumenthal v., Julia and Stephan Bröchler, 117-138. Wiesbaden: VS Verlag für Sozialwissenschaften.

Immergut, Ellen M. 1999. "Institutions, Veto Points, and Policy Results. A Comparative Analysis of Health Care." Journal of Public Policy 10(4): 391-416.

Johne, Roland. 2004. "Bundesrat und parlamentarische Demokratie. Die Länderkammer zwischen Entscheidungshemmnis und notwendigem Korrektiv in der Gesetzgebung." Aus Politik und Zeitgeschichte B 50-51: 10-17.

Jun, Uwe. 2011. Der Bundesrat und die politischen Parteien. Mitwirkungs- oder Blockadeinstrument? In 60 Jahre Bundesrat, eds. Jun, Uwe and Sven Leunig, 106-133. Baden-Baden: Nomos.

Kaiser, André. 1997. "Types of Democracy. From Classical to New Institutionalism." Journal of Theoretical Politics 9(4): 419-444.

Kaiser, André. 1998. "Vetopunkte der Demokratie. Eine Kritik neuerer Ansätze zur Demokratietypologie und ein Alternativvorschlag." Zeitschrift für Parlamentsfragen 29(3): 525-541.

Kropp, Sabine. 2010. Koalitionsbildungen und Koalitionsstabilität in Mittel- und Südosteuropa. Überlegungen und Ergebnisse zu einem wenig bestellten Forschungsfeld. In Krise oder Wandel der Parteiendemokratie? Die politischen Parteien zwischen Persistenz und Adaption, eds. Gehne, David and Tim Spier, 190-209. Wiesbaden: VS Verlag.

Kühne, Hartmut. 2005. "Föderalismusreform. Laufen oder Stolpern?" Aus Politik und Zeitgeschichte 13-14: 3-5.

Leunig, Sven. 2006. "'AB(C) ' oder 'ROM'? Zur Operationalisierung von Mehrheitsverhältnissen im Bundesrat." Zeitschrift für Parlamentsfragen 37(2): 402-420.

Leunig, Sven. 2012. 1982-1991: Dissonanzen im Gleichklang. In Parteipolitik und Landesinteressen. Der deutsche Bundesrat 1949-2009, eds. Leunig, Sven and Hendrik Träger, 149-183. Münster/Berlin/London, LIT-Verlag.

Leunig, Sven and Hendrik Träger. 2012a. 1991-1998: Neue Länder, alte Konflikte. In Parteipolitik und Landesinteressen. Der deutsche Bundesrat 1949-2009, eds. Leunig, Sven and Hendrik Träger, 185-224. Münster/Berlin/London, LIT-Verlag.

Leunig, Sven and Hendrik, Träger (eds.). 2012b. Parteipolitik und Landesinteressen. Der deutsche Bundesrat 1949-2009. Münster/Berlin/London: LIT Verlag.

Lhotta, Roland. 2003. "Zwischen Kontrolle und Mitregierung. Der Bundesrat als Oppositionskammer?" Aus Politik und Zeitgeschichte B 43: 16-22.

Lijphart, Arend. 1999. Patterns of Democracy. Government Forms and Performance in thirty-six countries. New Haven/London: Yale University.

Posser, Diether and Friedrich Vogel. 1989. Der Vermittlungsausschuss. In Vierzig Jahre Bundesrat, ed. Bundesrat, 213-225. Baden-Baden: Nomos.

Reiners, Markus. 2008. Verwaltungsstrukturreformen in den deutschen Bundesländern. Radikale Reformen auf der Ebene der staatlichen Mittelinstanz. Wiesbaden: VS Verlag für Sozialwissenschaften.

Reiners, Markus. 2011. "E-Revolution. Actor-centered and structural interdependencies in the realization of Estonia's democratic revolution." Zeitschrift für Politikwissenschaft, Journal of Political Science 21(4): 553-575.

Reutter, Werner. 2006. "Regieren nach der Föderalismusreform." Aus Politik und Zeitgeschichte 50: 12-17.

Riker, William. 1992. "The Justification of Bicameralism." International Political Science Review 13(1): 101-116.

Rossmann, Robert. 2013. "Mehrheit im Bundesrat. Wie Rot-Rot-Grün die Kanzlerin nachhaltig fesselt." In Süddeutsche Zeitung, 22 January 2013. Available at http://www.sueddeutsche.de/politik/mehrheit-im-bundesrat-wie-rot-rot-gruen-die-kanzlerin-nachhaltig-fesselt-1.1579329.

Scharpf, Fritz W. 1994. Optionen des Föderalismus in Deutschland und Europa. Frankfurt a. M.: Campus.

Scharpf, Fritz W. 2005. No Exit from the Joint Decision Trap? Can German Federalism Reform Itself? MPIfG Working paper 05/2008, Köln: Max-Planck-Institut für Gesellschaftsforschung.

Scherf, Hennig and Christian Bücker. 2011. Der Vermittlungsausschuss. Stellung, Kompetenzen, Besetzung und Verfahren. In 60 Jahre Bundesrat, eds. Jun, Uwe and Sven Leunig, 134-148. Baden-Baden: Nomos.

Schmidt, Manfred G. 2002. Germany. The Grand Coalition State. In Political Institutions in Europe, ed. Colomer, Joseph M., 58-93. London: Routledge.

Schmidt-Jortzig, Edzard. 2005. "Reformbedürftigkeit des deutschen Föderalismus." Aus Politik und Zeitgeschichte 13-14: 6-12.

Schröder, Valentin. 2014. Deutschland seit 1945, Bundesrat, Stimmenverteilung und Mehrheitsverhältnisse. Available at http://www.wahlen-in-deutschland.de/bBundesrat.htm.

Schultze, Rainer-Olav. 2005. "Die Föderalismusreform zwischen Anspruch und Wirklichkeit." Aus Politik und Zeitgeschichte 13-14: 13-19.

Sturm, Roland. 2005. "Föderalismusreform. Kein Erkenntnisproblem, warum aber ein Gestaltungs- und Entscheidungsproblem?" Politische Vierteljahresschrift 46(2): 195-203.

Stüwe, Klaus. 2004. "Konflikt und Konsens im Bundesrat. Eine Bilanz (1949-2002)." Aus Politik und Zeitgeschichte B 50-51: 25-32.

Thiele, Alexander. 2006. "Die Neuregelung der Gesetzgebungskompetenzen durch die Föderalismusreform - ein Überblick." Juristenzeitung 10: 714-719.

Träger, Hendrik. 2012. 1949-1962: Starke Landesfürsten, schwache Parteien. In Parteipolitik und Landesinteressen. Der deutsche Bundesrat 1949-2009, eds. Leunig, Sven and Hendrik Träger, 39-78. Münster/Berlin/London: LIT-Verlag.

Träger, Hendrik and Susanna Thiel. 2012a. 1998-2005: „Revival" der Parteipolitik im Bundesrat, In Parteipolitik und Landesinteressen. Der deutsche Bundesrat 1949-2009, eds. Leunig, Sven and Hendrik Träger, 225-260. Münster/Berlin/London: LIT-Verlag.

Träger, Hendrik and Susanna Thiel. 2012b. 2005-2009: Sachkonflikte zwischen Regierungsparteien. In Parteipolitik und Landesinteressen. Der deutsche Bundesrat 1949-2009, eds. Leunig, Sven and Hendrik Träger, 261-288. Münster/Berlin/London: LIT-Verlag.

Tsebelis, George. 1995. "Decision Making in Political Systems. Veto Players in Presidentialism, Parlamentarism, Multicameralism and Multipartism." British Journal of Political Science 25: 289-325.

Tsebelis, George. 1999. "Veto Players and Law Production in Parliamentary Democracies. An Empirical Analysis." American Political Science Review 93: 591-608.

Tsebelis, George. 2002. Veto Players. How Political Institutions Work. New York: Princeton University Press.

Wagschal, Uwe. 2009. Kompetitive und konsensuale Vetospieler in der Steuerpolitik. In Parlamente, Agendasetzung und Vetospieler, eds. Ganghof, Steffen, Hönnige, Christoph and Christian Stecker, 117-136. Wiesbaden: VS Verlag für Sozialwissenschaften.

Zohlnhöfer, Reimut. 2011. Die Auswirkungen der Föderalismusreform I auf die Arbeit des Bundesrates. In 60 Jahre Bundesrat, eds. Jun, Uwe and Sven Leunig, 149-163. Baden-Baden: Nomos.