4. Formal processes for changing the distribution of central-regional competencies
4.1. General observations
The distribution of competencies or the rules dividing competence must be open to change. Societies evolve, and so does the structure of a state, includ- ing the distribution of powers between the centre and the regions. Most of these rules, as was specified above, are enshrined in the written constitution or in special laws with a quasi-constitutional status. Therefore, if we approach change from a constitutional point of view, two questions seem particularly relevant. First, what is the method for formally amending the constitution or the rules dividing central-regional competencies (special majority laws, parliamentary acts, statutes of autonomy, organic laws, state laws etc.)? Second, for each of our case studies, are these rules regularly amended and, if so, what is the formal involvement of the regions in this process?
Constitutions are normally more difficult to amend than standard legisla- tive acts. Constitutions provide polities ‘with an operating system’.
Therefore, they should be more durable or robust than standard legislation (Lutz 1994). In general, the constitutions of federal states are even more difficult to amend than those of unitary states (Lijphart 1999). This is so because, in a federal state, constitutions also serve as ‘power-maps’
(Duchacek 1970) which determine the relationship between the centre and the regions. The involvement of the regions in amending the constitution emerges as a logical requirement that is missing from most unitary state structures.
Despite the fact that most federal constitutions are harder to change than most of the unitary ones, a large variety of formulas exists for changing a federal constitution (Lutz 1994; Swenden 2004a). The nature of the chosen constitutional amendment formula may reflect a particular philosophy with regard to what the political classes perceive as the appropriate role of a constitution, including the sections which specify the powers of the centre and/or the regions. Some constitutions only seek to serve as a crude power- map. They outline the broad structure of the political system, but leave ample room for interpretation as to how the main principles should be put into practice. The ‘short and obscure’ US constitution is frequently listed as
the most prominent example of such a constitution (Elazar 1986; Gavison 2002). The US constitution contains a very short of list of federal legislative powers. Other constitutions offer a detailed state code. Often they emerge in response to a past dictatorial regime, or they dispense with an outdated state structure, such as a unitary state format that was imposed upon a multina- tional society. In fact, the Austrian, Belgian, German and Spanish constitu- tions are also relatively detailed in specifying the competencies of the centre and/or the regions. In time the Swiss constitution has become relatively long and specific as well.
When constitutions are relatively ‘short and obscure’ and thus also more parsimonious with regard to specifying the competencies of the centre or the regions we expect to find a tough amendment formula. Constitutions must stand the test of time. Therefore the basic principles should not be open to change so easily. This also applies to the amendment of short catalogues of central or regional competencies in federal constitutions. Conversely, con- stitutions that serve as detailed state codes should be easier to amend so as to keep pace with new developments in society. Where such constitutions also contain a detailed catalogue of central or regional competencies the same principle applies.
The flexibility of a constitution also has major implications for the potential relevance of judicial review (i.e. the change of meaning of a constitution which emerges from the jurisprudence of a constitutional court or a supreme court). In countries with a robust amendment formula, the meaning of the constitution is more likely to change as a result of judicial review than of formal constitutional change (Swenden 2004a). Conversely, in countries with a flexible constitution, competence adjudication is more often accomplished by means of formal constitutional change than of judicial review. The same logic applies to changing the meaning of a constitutional catalogue of central or regional competencies. The more detailed it is, the narrower the scope of judicial interpretations; the shorter it is, the wider the scope for judicial review.
If we leave aside Britain, each of our country cases has a relatively long constitution and contains a relatively detailed catalogue of competencies.
Yet, not all of these constitutions are open to flexible change. Furthermore, the constitutions with the most flexible amendment formula are not neces- sarily the ones that are the most frequently amended. In this sense, we have to take into consideration certain political factors that fall beyond the pure mechanics of constitutional change.
In general, we can discern three different ways of changing federal consti- tutions. Each of them provides some form of regional input. I rank them here from the most to the least flexible method. Within our group of coun- tries, we only find applications of the first and third methods for constitu- tional change.
The first method is to require the consent of the central second chamber alongside the lower house. From the viewpoint of the regions, such a
method is satisfactory if (a) the second chamber provides for some sort of regional representation and (b) the prescribed majorities there ensure that the constitution cannot be changed without the consent of a majority of the regions. Each of the countries that we are considering here has a second chamber. However, as I will argue more extensively in Chapter 6, only in Germany and Switzerland is that second chamber sufficiently powerful and composed in such a way that it can live up to the task of regional representation.
The second method is to subject constitutional change to the consent of a qualified majority of the regional parliaments in addition to federal bicam- eral approval.
The third method is to submit constitutional amendments to a popular referendum, possibly following the consent of the central legislature with special majorities. In general, federations or quasi-federations that prescribe a referendum also require regional alongside popular majorities. For instance, in Switzerland, a proposal for constitutional change is rejected if more than half of the voters endorse it but these voters do not constitute electoral majorities in more than half of the regions.
The following section explores the relationship between the philosophy of the constitution, the formula for changing it (or the rules specifying the central and/or regional competencies) and the frequency of such changes in greater depth for each of our case studies.
Switzerland
The Swiss constitutional amendment formula is particularly robust. Each of the alternative options for constitutional change requires the involvement of the regions.
Whenever a federal government introduces a constitutional amendment, the consent of the federal bicameral legislature is required. Alternatively, the Swiss people can put forward proposals for constitutional change (a so-called
‘popular initiative’) themselves. They can only do so if such proposals are supported by the signatures of 100,000 Swiss citizens. In either scenario (government or people’s initiative) amendments are only approved if they pass the hurdle of a referendum (mandatory referendum). To do so, they must fulfill a double majority quorum: the votes in favour must represent a majority of the electorate choosing to vote and they must represent more than half of the cantons (the so-called Ständemehr– Kobach 1994: 104).
The people can also consider a ‘totalrevision’ of the constitution. In this case, they need to vote on the appropriateness of such a revision first. If the matter is resolved in the affirmative, both chambers of the Swiss bicameral legislature dissolve, federal elections are held and a constituent assembly is established. Subsequently, the draft of the revised constitution must be endorsed by the people in a referendum requiring a popular and a regional majority. In 1999, a total revision of the federal constitution was agreed
upon with the required majorities. The term ‘total’ mainly applies to a re-codification and simplification of the constitution, albeit that the con- stitution which entered into force in January 2000 also contains some new paragraphs (Schmitt 2005: 352–4).
Despite the high threshold for constitutional change, the Swiss constitu- tion has been amended on numerous occasions; 139 times between 1874 and 1995. A detailed catalogue of central/cantonal legislative responsibilities has emerged as a result. Constitutional change is less likely than in Austria, Belgium or Germany, but much more likely than in Spain. For instance, for the period between 1873 and 1992, the Swiss constitutional amendment rate (i.e. the number of successfully approved amendments divided by the number of years in which the constitution has been operating) was 0.78 (Lutz 1994: 369). Hence, the constitution is changed almost annually. This is more frequent than could be expected on the basis of the chosen amendment formula. However, this observation must be qualified in two respects.
First, the federal government is much more successful in initiating consti- tutional change than the people. Only 12 of 216 ‘people’s initiatives’ put for- ward between 1848 and 1997 obtained double majority consent compared with 146 of 201 government-initiated proposals for constitutional change (Linder 2001: 118). In part, this reflects the federal government’s efforts to consult widely with the cantons and the leading interest groups before proposing constitutional change.
Second, the sheer number of constitutional amendments is more impres- sive than their scope, particularly in altering the federal-regional balance of powers. At best, successful amendments led to an incrementalrise of federal legislative powers. Legislative centralization has come at a certain cost. The referendum postponed the centralization of some policy functions which most federations had been regulating at the federal level for a much longer period of time. For instance, the Swiss welfare state did not take off until after World War II. Arguably, in the absence of the double majority require- ment, central welfare provisions (social insurance and health care) might have been offered at an earlier date. Or, it took the federal government three referendums before it was finally authorized in 1995 to collect VAT (Obinger, Armingeon, Bonoli and Bertozzi 2005; Kriesi 1995). Or, a major revision of the federal constitution was not accomplished until 1999, although the first serious proposals were put forward as early as 1966 (Schmitt 2005: 353). In addition, the centralization of health care, environmental and agricultural legislation was not always accompanied by their financial and administra- tive centralization (Wälti 1996: 128; Kriesi 1995: 48). Finally, the prospect for obtaining double majorities has become more difficult in recent times.
Proposals which sought to strengthen the role of the federal government in immigration policy (Einbürgerschaft) or to craft a federal energy and cultural policy failed because of a lack of cantonalnot popular support. As a result of Switzerland’s increasing urbanization, 1 vote in the smallest canton of
Uri is now worth 34 votes in the largest canton of Zurich. Assuming that majorities in the smallest cantons vote against a proposal, constitutional change can be blocked by cantons which represent just 9 per cent of the Swiss population (compared with 11.5 per cent in 1880; see Linder and Vatter 2001: 99).
Germany and Austria
The German case provides a stronger confirmation of the anticipated link between the degree of detail of a constitution, including its competence cata- logue and its flexibility. Truly constitutional amendments that dissolve the character of Germany as a social, federal,democraticstate,governed by the rule of law are ‘inadmissible’. But if we leave aside amendments with such a draconic reach, the German Basic Law is relatively easy to change. Proposals for constitutional change require the consent of two-thirds of the membership of the federal lower house, and of two-thirds of the votesin the Bundesrat, the federal second chamber. Unlike in Switzerland, constitutional amend- ments do not normally require the consent of the people. This is the case only for proposed changes to the regional borders. Here the popular consent of the affected regions is needed. The most recent example of such a refer- endum is the proposed merger in 1996 of Berlin and Brandenburg. It failed owing to a lack of popular consent in Brandenburg. Since constitutional amendments do not necessitate the consent of the regional parliaments either, the second chamber is the sole guarantor of regional representation.
The German constitution has been amended more than fifty times since 1948. Major structural changes to its federal system (particularly the strengthening of the centre in law-making and taxation) took place in 1966–69. This coincided with the presence of a federal Grand Coalition or CDU-SPD government, which could easily mobilize the necessary majorities in the federal lower house and the second chamber. In any case, constitu- tional change always requires the support of the parties in federal govern- ment. In recent years, the number of German federal governments with slim parliamentary majorities has increased. Therefore, the support of at least one opposition party (not necessarily the largest one) is now needed to obtain two-thirds of the lower house votes. That support does not necessarily guar- antee a majority of votes in the second chamber. As I will discuss in Chapter 6, this is so because the Bundesrat, the second chamber, is composed on a different basis. The smallest regions are overrepresented; only members of the regional executives are represented, and they must vote by region and not (only) by party. In fact, due to the overrepresentation of the smaller regions, the smallest seven regions, representing a population of 13 million inhabitants, or about 16 per cent of the total German population, suffice to block a constitutional amendment.
It is frequently asserted that, notwithstanding the requirement of regional block voting in the second chamber, members of the Bundesrat vote more
often by party than by region. This assumption will be tested more in depth in Chapter 6. However, the negotiations that led to a reweighting of the regional votes in the Bundesrat after German unification prove that territor- ial considerations matter. Shortly after unification it was agreed that each of the four largest regions, representing more than half of the German popula- tion (46 million inhabitants) should obtain one extra vote. As a result, German constitutional change requires the consent of at least oneof these regions (together they make up 24 votes in the Bundesrat). The extra vote that the largest regions received prevented the five newly acceded Eastern Länder from acquiring a blocking minority in the second chamber.
The guaranteed collective regional input in the process of constitutional change did not stop the legislative centralization of German federalism, par- ticularly between 1949 and 1993 (Klatt 1999). Arguably, some of these cen- tralizing reforms might have been blocked had they required the consent of the regional parliaments. Regional executive leaders were willing to central- ize these powers, because they could still codetermine them at the federal level in a collective manner. In contrast, for each competence that is cen- tralized, regional parliaments lose any effective mechanism of control or influence.
Of all the federalconstitutions, the Austrian constitution is the easiest to amend. Constitutional amendments can be passed by the federal lower house. They require the presence of at least half its members and must be cast with a two-thirds majority. A ‘total revision’, – a recodification as in Switzerland – must be submitted to the public. A popular referendum is needed for partial revisions of the constitution when a third of the members of the lower house or the second chamber, the Bundesrat, so require (Article 44) (Luther 1997: 911). The Bundesrat is also the only formal mechanism for regional representation, yet it is not well suited to this task. The Austrian Bundesrat has only acquired a right of veto on constitutional amendments which weaken the legislative or administrative capacity of the regions since 1984. The Bundesrat must consent with a two-thirds majority. Furthermore, the composition of the second chamber does not guarantee that it will be used as a territorial chamber. Members can sit and vote by party instead of by region and the smallest regions find themselves only slightly overrepre- sented (see Chapter 6).
Since Austria has seen prolonged periods of Grand Coalition government at the federal level (at least between 1945 and 1966 and between 1987 and 2000), finding the necessary majorities for constitutional change in these periods was not difficult. The federal government fell well short of a two- thirds majority in the lower house for the rest of the time so that the support of at least one federal opposition party was needed to find the required majorities in the lower house. In this sense, the Austrian federation has
‘gradually centralized’ in legislative and fiscal terms without much resistance from below.
Belgium, Spain and the United Kingdom
The Belgian constitution is relatively flexible insofar as the regional parlia- ments or the people need not give their consent to constitutional change.
Constitutional amendments require federal bicameral consent. The federal lower house and Senate must endorse amendments with two-thirds majori- ties each. The amendment of special majority laws (which have a de facto constitutional status) not only requires two-thirds majorities in each cham- ber, but also majorities within the Dutch- and the French-speaking linguistic groupsin the lower house and Senate. Any rules that specify the competen- cies of the Regions and Communities, irrespective of whether they are spelled out in the constitution proper or in special majority laws are in need of the second type of majority.
One additional constraint applies exclusively to the amendment of con- stitutional articles proper. A federal parliament can only amend those arti- cles which a previous parliament has declared ‘fit for amendment’. Hence, a sitting federal government can prevent the amendment of certain constitu- tional articles in the next legislative term by refusing to endorse a statement which authorizes their revision. Parliamentary elections must intervene in between the adoption of such a statement and the potential revision of the constitution. Initially, this rule was meant to give the general public some input in the future direction of constitutional change. However, in reality, voters have been hardly concerned with proposals for further constitutional change. Instead, they have used such elections for assessing the overall policy record of outgoing federal governments.
Since 1970, the Belgian constitution has been amended regularly.
However, amendments which changed Belgium into a federation were grouped together in five major waves of constitutional reform (1970, 1980, 1988–89, 1992–93 and 2000–2001). The reforms of 1992–93 also generated a
‘total revision’ of the constitution. Articles were reshuffled, recodified and simplified. They gave the constitution a more comprehensible outlook.
Although amending the constitution only requires the consent of federal MPs, finding the appropriate majorities is by no means easy. All major Belgian parties are split along linguistic lines. By convention, ideologically related parties (say the French- and Dutch-speaking Social Democrats) are united in federal government or opposition. Yet, they are not necessarily of equal size within their linguistically homogeneous party systems.
Therefore, federal coalition governments tend to be oversized and often approximate the two-thirds parliamentary majority that is needed for stan- dard constitutional change. Most of the reforms which have turned Belgium into a federation resulted from protracted negotiations between party leaders of at least four, sometimes even six, parties in federal govern- ment. As changes to the federal structure often require special majorities some federal governments even had ‘to buy in’ the support of at least one federal opposition party.