Bundesrat of Germany

The German Bundesrat (literally ‘Federal Council’; pronounced [ˈbʊndəsʁaːt]) is a legislative body[lower-alpha 1] 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 Federal Council

Bundesrat
History
Founded23 May 1949
Leadership
President
Dietmar Woidke, SPD
since 1 November 2019
First Vice President
Daniel Günther, CDU
since 1 November 2019
Second Vice President
Reiner Haseloff, CDU
since 1 November 2019
Structure
Seats69
Political groups
  • Baden-Württemberg (6)
  • Bavaria (6)
  • Berlin (4)
  • Brandenburg (4)
  • Bremen (3)
  • Hamburg (3)
  • Hesse (5)
  • Lower Saxony (6)
  • Mecklenburg-Vorpommern (3)
  • North Rhine-Westphalia (6)
  • Rhineland-Palatinate (4)
  • Saarland (3)
  • Saxony (4)
  • Saxony-Anhalt (4)
  • Schleswig-Holstein (4)
  • Thuringia (4)
Meeting place
Former Prussian House of Lords building, Berlin
Website
bundesrat.de
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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 United States Senate, the Canadian Senate or the British House of Lords, however this desctibtion has no legal foundation[lower-alpha 1].

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). Thus, the Bundesrat is a continuous body and has no legislative periods. But for organizational reasons the Bundesrat structures its legislative calendar in years of business (Geschäftsjahre), beginning each year on 1 November. Each year of business is congruous with the term of the presidium. The sessions have been counted continuously since the first session on 7 September 1949: The session on 8 November 2019, the first session of the 71st year of business, was the 982nd session of the Bundesrat.[1]

History

German Confederation

The historical predecessor of the Bundesrat was the Federal Convention (Confederate Diet) of the German Confederation (1815–1848, 1850/1851–1866). That Federal Convention 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[2] 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,[3] the diet and the federal law ended.

Bundesrat 1867-1918

On July 1, 1867, the North German Confederation was established as a confederal 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.[4] When the Confederation was transformed and 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.

Weimar Republic

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 1, 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.

Seat
Bundesrat building in 2007

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.

Composition

Historically

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 old 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 annexed 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 federal constitutions allocated 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.

To put the Prussian votes in context: 80% of the North Germans lived in Prussia and roughly two thirds of the Germans. Prussia was always underrepresented in the Bundesrat.

State Notes Votes
Prussia (including states annexed in 1866) 17
Bavaria 6
Saxony 4
Württemberg 4
Baden 3
Hesse 3
Mecklenburg-Schwerin 2
Brunswick 2
17 other small states each with 1 vote 17
Alsace-Lorraine after 1911 3
Total 61

Weimar Republic

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 percent 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.

Today
Composition of the Bundesrat (Date: see image)

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).[5] 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.

Current distribution of votes
State Population[6] Votes Population
per vote		 Governing parties next regular election Presidency
Baden-Württemberg 10,879,618   6   █ █ █ █ █ █ 1,813,270 13Greens, CDU 2021 2028/29
Bavaria 12,843,514   6   █ █ █ █ █ █ 2,140,586 04CSU, FW 2023 2027/28
Berlin 3,520,031   4   █ █ █ █ 880,008 08SPD, Left, Greens 202109-18 2033/34
Brandenburg 2,484,826   4   █ █ █ █ 621,207 16SPD, CDU, Greens 2024 current
Bremen 671,489   3   █ █ █ 223,830 12SPD, Greens, Left 202305-11 2025/26
Hamburg 1,787,408   3   █ █ █ 595,803 11SPD, Greens 2020 2022/23
Hesse 6,176,172   5   █ █ █ █ █ 1,235,234 06CDU, Greens 2023 2030/31
Lower Saxony 7,926,599   6   █ █ █ █ █ █ 1,321,100 12SPD, CDU 2022 2029/30
Mecklenburg-Vorpommern 1,612,362   3   █ █ █ 537,454 08SPD, CDU 202109-04 2023/24
North Rhine-Westphalia 17,865,516   6   █ █ █ █ █ █ 2,977,586 12CDU, FDP 2022 2026/27
Rhineland-Palatinate 4,052,803   4   █ █ █ █ 1,013,201 12SPD, FDP, Greens 2021 2032/33
Saarland 995,597   3   █ █ █ 331,866 07CDU, SPD 2022 2024/25
Saxony 4,084,851   4   █ █ █ █ 1,021,213 07CDU, SPD, Greens 2024 2031/32
Saxony-Anhalt 2,245,470   4   █ █ █ █ 561,368 07CDU, SPD, Greens 2021 2020/21
Schleswig-Holstein 2,858,714   4   █ █ █ █ 714,679 14CDU, Greens, FDP 2022 2034/35
Thuringia 2,170,714   4   █ █ █ █ 542,679 17Left, SPD, Greens 2024 2021/22
Total82,175,684691,190,952

Voting

In contrast to many other legislative bodies, members of the Bundesrat are bound by directions given to them by their respective state governments. The members of the Bundesrat from each state are required to cast their votes as one state bloc[7]; A states members cannot vote differently from eachother. A vote in which a states members vote differently is a procedural error and the vote must be taken again. This tradition stems from the 1867 Bundesrat.

The delegates of a state are equal to each 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. This practice is common due to the afformentioned rule requiring the states to vote as a unified bloc.

Because coalition governments are common, states frequently choose to abstain if their coalition cannot agree on a position. In most cases votes in the Bundesrat require only a majority of votes[8] not a majority of members. In effect a vote need only more yes votes than no votes to pass.In some cases however, a majority of members is required, meaning at least half (35) of the 69 members must vote with yes.

Between 1949 and 1990, West Berlin was represented by four members, elected by its Senate, but owing to the city's ambiguous legal status, they did not have voting rights.[9]

Presidency

Originally from 1867 to 1918, the Bundesrat was chaired by the chancellor, although he was not a 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 Ministers President 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 presidium.

The President of the Bundesrat ("Bundesratspräsident"), is fourth in the order of precedence after the Federal President, the President of the Bundestag, the Federal Chancellor. The President of the Bundesrat becomes acting Federal President of Germany, in case that the Federal President is either Absent of Incapacitated.

Organizational structure
The House of Lords of Prussia on Leipziger Straße, seat of the Bundesrat.

Because the Bundesrat is so much smaller than the Bundestag, it does not require the extensive organizational structure of the Bundestag. The Bundesrats day-to-day business is run by the Secretariat of the Bundesrat, which staffs around 200 civil servants[10].

The voting Bundesrat delegates themselves rarely attend committee sessions; instead each state has a so-called Landesvertretung (State Representation) to the Federal Govenment, which is lead by a Representative of the State (Bevollmächtigter) appointed by the state government, who is allowed to attend committee sessions in the state govenments stead[11].

Tasks

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.[lower-alpha 1] 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.

Criticism

Some observers 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, 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 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 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.

See also

Notes
  1. The Bundesrat is sometimes referred to as the second chamber of the German legislature, but this designation is disputed by some.[12] The German Constitutional Court itself has used the term upper house in the English translations of its decisions,[13][14] and refers to the Bundesrat as a "second chamber existing beside the parliament". [15]

References
  1. https://www.bundesrat.de/SharedDocs/termine/DE/plenum/2019/2019-11-08.html?nn=4353052
  2. 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.
  3. Christopher Clark: Preußen. Aufstieg und Niedergang 1600–1947. DVA, München 2007, p. 624.
  4. Ernst Rudolf Huber: Deutsche Verfassungsgeschichte seit 1789. Vol. III: Bismarck und das Reich. 3rd edition. W. Kohlhammer, Stuttgart et. al 1988, p. 651.
  5. "Artikel 51 GG". Basic Law for the Federal Republic of Germany (in German). Federal Ministry of Justice. 1949-05-23. Retrieved 2009-01-18.
  6. Amtlicher Bevölkerungsstand am 31. Dezember 2015
  7. Article 51 Section 3 of the Basic Law for the Federal Republic of Germany: Each Land may appoint as many members as it has votes. The votes of each Land may be cast only as a unit and only by Members present or their alternates.
  8. Article 52 Section 3 of the Basic Law for the Federal Republic of Germany: Decisions of the Bundesrat shall require at least a majority of its votes. It shall adopt rules of procedure. Its meetings shall be open to the public. The public may be excluded.
  9. West Germany Today (RLE: German Politics), Karl Koch, Routledge, 1989, page 3
  10. https://www.bundesrat.de/EN/organisation-en/sekretariat-en/sekretariat-en-node.html
  11. Article 52 Seciton 4 of the Basic Law for the Federal Republic of Germany: Other members or representatives of Land governments may serve on committees of the Bundesrat.
  12. 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. Archived from the original (pdf) on 2007-06-28. 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.)
  13. "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.
  14. "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).
  15. "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.

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