Symposium: Consensual Governance – The German Governmental System

Nathalie Behnke

Darmstadt University of Technology

Probably the most notable feature of German governance is its highly consensual style of decision-making. The fathers and mothers of the German Basic Law (‘BL’) provided for several institutional features promoting this consensual governance style. Among those are a parliamentary system of government, where the head of government depends on the approval of the parliamentary majority; and a bicameral parliament with the second chamber being designed as a Council (or Bundesrat) representing the governments of the sub-state units. Furthermore, the electoral law, to which Article 48 of the BL refers, states that the members of the first chamber (or Bundestag) are to be elected by a proportional electoral system with a 5% threshold, leading to a moderate fractionalization of parliament. Altogether, those provisions resulted in a preponderance of coalition governments throughout the history of the Federal Republic of Germany.

Those institutional incentives are underpinned by concomitant normative principles in the constitution. For instance, the principle of safeguarding equivalent or uniform living conditions in all sub-state units (Länder) across the territory emphasizes solidarity rather than competition between these political units. In this vein, a consensual governance style evolved over the decades, and parties and society alike got used to achieving larger changes only with a de facto grand coalition, typically broader than the coalition forming government.

In what follows, I will elaborate on how those three institutional features – parliamentary government, proportional election and bicameralism – translate into a consensual style of governance so typical of the German system. I will conclude by highlighting how a changing party system challenges the tradition of consensus.

First, a parliamentary system is more consensus-oriented than a presidential one, to the degree that by its very nature it precludes strict parliamentary control of government. With the parliamentary majority electing and supporting government, parliamentary control is relegated to the parliamentary opposition. As, however, committees are staffed proportionally to the factions' strength in parliamentary seats, most parliamentary means of control cannot be exercised effectively by the minority. Second, the German federal government, throughout its history, was mostly staffed by coalitions, thereby preventing a strong opposition between two party camps as we witness, for example, in the United Kingdom. The need for coalition governments follows from the proportional electoral system in contrast to the 'first-past-the-post' system still in use in the United Kingdom. In a system of proportional representation, many political forces are represented in parliament. In the first decades, the effective number of parties in parliament was roughly two and a half. Neither of the big parties – the Christian Democrats (CDU/CSU) or the Social Democrats (SPD) – won enough seats to govern alone. So, the small liberal party (FDP) was in a position to lend its support for coalition-building alternatively to one of the two, thereby effectively moderating government decisions. Since the 1980s, the effective number of parties began to steadily increase towards four, including first the Green Party (1983), the Left Party (since 1990 as PDS, since 2009 as 'Linke') and lastly the populist right-wing 'Alternative for Germany' (AfD) in 2017. The increasing fractionalization came at the cost of the share of seats of the two traditionally big parties, making coalition-building a more complicated and more variable power game.

Third, the Bundesrat as the second parliamentary chamber is probably the institution most conducive to consensual decision-making, as was already lucidly described by Gerhard Lehmbruch back in 1976. It is composed of members of the Länder governments (between three and six members, depending on the number of inhabitants). Those members simultaneously represent party political interests of their home government and the territorial interests of their Land. As most Länder governments are also formed by coalition governments, those parliamentary majorities in the Länder translate by complex arithmetic into the party political composition of the Bundesrat. As a second chamber, the Bundesrat votes on every federal legislative proposal, a power which arms the Länder with strong influence (see further Jens Woelk’s forthcoming 8 October 2019 contribution to this symposium). While in the first chamber, it may be sufficient to win the approval of the coalition partners to pass a bill, it is far more complicated to assemble the 35 votes needed for a majority in the Bundesrat. Matters are further complicated by the fact that votes in the Bundesrat are cast en bloc for each Land. If the coalition partners of a Land government cannot agree on how to vote on an issue, it may only abstain from voting altogether, as votes cannot be split. Where a positive majority needs to be won, abstention equals a 'no' vote.

Surprisingly (or perhaps not?), despite the Bunderat's strong veto power, most legislative initiatives pass both chambers without much commotion. In the past legislative period (2013-2017), out of 555 proposals that had been sent from Bundestag to Bundesrat, 553 passed the Bundesrat, the other two were accepted after re-negotiation in the arbitration committee. One hundred and ninety-seven of those proposals (about 35%) required a positive majority in the Bundesrat. The reason for this nearly 100% legislative success rate is to be found in the intense negotiation process preceding Bundesrat sessions, where deals need to be struck between Länder and across party lines, hard edges are cut from legislative proposals and formulations are found that enable many to agree. All in all, this complex mechanism of co-legislating between the two parliamentary chambers reveals how the consensual governance style is mainly shaped by the tight institutional connection between the party system and federalism (which was exactly Lehmbruch’s finding more than 40 years ago).

So far, the argument was that moderate fractionalization of the party system at federal as well as Länder level was hedged by institutional linkages and thus conducive to a cooperative governance style; as coalitions need to be formed and approval in the second chamber needed to be won across party lines. However, to the degree that the party system diversifies further, this might increasingly present a challenge to the routines of consensus-building. We can observe this trend both in the federal government and in the second chamber.

At federal level, fractionalization and the effective number of parties steadily increased, reaching an all-time high of 4.6 in the past federal elections in 2017. It took the parties nearly half a year to form another 'grand' coalition between the Union parties and Social Democrats, the former deeply torn between its two sister parties, and the latter entering coalition only grudgingly in light of hopelessly decreasing support among its members and electorate. In light of such deep tensions, consensus is likely to shrink to formalistic compromises emptied of meaning and causing de facto stalemates in politics. Current polls predict that fractionalization is likely to increase further in the next election, with an effective number of parties close to five. The AfD is currently not deemed eligible for coalitions, but nears a 20% vote share, forcing the remaining parties to form ideologically overly broad coalitions. Building substantive consensus under such conditions is increasingly difficult.

At Länder level, regionalization of the party system continues in addition to fractionalization, and Länder coalitions become increasingly diverse, forming bi- and even tri-partite coalitions between partners that were deemed unthinkable even a couple of years ago. With increasing support for the AfD even minority governments become feasible options. Among those 'colourful' governments, it is getting increasingly difficult and time-consuming to foster broad consensus and secure the necessary majorities in Bundesrat negotiations, and the number of Länder having government coalitions concordant with the federal level is continuously shrinking. Conflict in the Bundesrat is further exacerbated by an increase in economic disparities between the Länder, with the economically less powerful Länder willing to sell autonomous legislative power for federal money. The most striking recent example of such a deal is the 'digitalization pact', in terms of which the Länder allow the federal level to finance school education and to monitor how well the Länder spend the money.

To the degree that party-political conflict and Länder interests continue to diverge, the Bundesrat's capacity for consensus-building and, concomitantly, its power to check on federal government would be undermined. To be sure, the consensus-oriented governance style has often been criticized as fostering deadlock and hindering big reforms. On the other hand, it is the backbone of an ongoing dialogue between all political and societal forces and thus mainly fosters societal peace. In this vein, consensus-oriented governance is a safeguard against political and societal disintegration. As disintegration manifests itself in a more diverse party system, it becomes increasingly difficult as well as important to keep up the culture of consensus-building.

Nathalie Behnke is a Professor and Head of the Department of 'Public Administration, Public Policy' at the Institute for Political Science of Darmstadt University of Technology.

Suggested Citation: Nathalie Behnke, “Consensual Governance – The German Governmental System” IACL-AIDC Blog (3 October 2019) https://blog-iacl-aidc.org/70-years-of-the-german-basic-law/2019/10/3/consensual-governance-the-german-governmental-system