comparative federalism

When the twentieth century began, there were nine formally constituted federal states in the world: Argentina, Australia, Brazil, Canada, Germany, Mexico, Switzerland, the United States of America, and Venezuela.
As the twentieth century comes to an end, this number has grown to twenty, with Austria, Belgium, Comoros, India, Malaysia, Nigeria, Pakistan, Russia, Tanzania, the United Arab Emirates and South Africa added to the club.
Since these federations include some of the largest and most populous countries in the world, this means that more than half of the world’s space and almost half of its population is governed by federalism.
A Federalist Revolution?
So did Proudhon’s prediction about the twentieth century opening the age of federations turn out to be true after all?
A lot of what has also been called this century’s ‘federalist revolution’ had to do with the break- down of colonial empiresand the formation of a multitude of newly independent states after 1945.
Most of these states were multicultural in nature due to the arbitrary way in which colonial powers had assembled their possessions.
Federalism seemed to be the most promising way to accommodate this incongruence of national identity and colonial territory.
However, only a few of these post-colonial federations endured as stable federal systems, many more ended in failure. Some broke apart, such as the United Arab States or the Federations of the West Indies. Others such as Libya or Indonesia were transformed into unitary and often autocratic systems of governance.
The twentieth century also witnessed the rise and fall of communism. Among the communist states, only three were constituted as federations, the Soviet Union, Czechoslovakia and Yugoslavia. All three disintegrated after 1989, with only one new federation – Russia – emerging.
In the Western world of industrialized democracies, on the other hand, at least two notoriously centralized unitary political systems have moved towards some form of federal order: Spain and, most recently, the United Kingdom. And there is the European Union as a novel type of supranational governance: with the European member states gradually, sometimes reluctantly, but nonetheless significantly ceding powers to Brussels, they increasingly come to look like the constituent units of an emerging European federal order.
Understanding Federations
How do we begin to make sense of such a rich diversity of federal experiences? Obviously, the basic organizational and normative principles that set federalism apart from unitary political systems cannot be sufficient to describe and explain this confusing array of federal systems in practice. In this chapter, therefore, we want to provide some analytical order.
First, we shall introduce some basic criteria of analysis, or categories of federal organization.Secondly, these categories will be used to generate a framework of analysis, or typology of federationsaccording to their geographic and historical place of origin. And finally, some contextual variableswill explore further the stability of federal systems.
Application of the criteria leads to the conclusion that there are four basic models of federalism: the American, the German, the British Colonialand the South American. In practice, these are all affected by three main contextual variables: the realities of country size; whether it is a federation of many constituent units or few; and how much of a problem is presented by demographicand/or economic imbalancesbetween those constituent units.
1. Categories of Federal Organization
Before the wide world of federalism can be sorted out and grouped together in a typology of federations, it is necessary to develop some broad comparative categories at least for the major similarities and differences. We suggest six such categories:
• the rationaleleading to federalization of a political system in the first place;
• the dispersal of poweramong different branches of government;
• the coordination of powersamong the different levels of government;
• the mode of regional representationat the federal level of government;
• the functional division of powersbetween governments; and
• the style of intergovernmental policy-making.
The Rationale for Federalization: cultural and territorial bases
Federal states are the result of compromise among competing elites. In some federations, the compromise is about different cultural interests such as language, religion, or, more generally, distinct cultural histories.
In these cases ofcultural federalism, the motivation for federalization is the desire to build a strong union without giving up regional cultural autonomies. Switzerland, for instance, is subdivided into seventeen German, four French, one Italian and four plurilingualcantons. In Canada, the dividing line runs between nine Anglophone provinces and the Francophone province of Quebec. The Belgian constitution recognizes four linguistic regions: French, Dutch, German, and the bilingual capital region of Brussels. The rationale of cultural federalism is the establishment and maintenance of cultural peace.
While most federations have initially been based on cultural compromise between modernizers seeking economic advantages in a national market economy, and traditionalists adamant about the retention of regional cultural autonomy ...., cultural differences have ceased to be the driving force of compromise in a number of federal systems.
Instead, such federations have simply retained a territorial division of government. These are cases ofterritorial federalism. In Germany, for instance, traditional cultural cleavages between the Protestant north and Catholic south are no longer relevant political factors. The fifty states of the United States of America are culturally diverse, to be sure, but at least in comparative perspective, this diversity is not a prime factor in American federalism. The Australian federation may have been constructed on the basis of territorial rather than cultural principles of autonomy from the beginning. The rationale for the retention of territorial federalism is both democratic and pragmatic. Americans, for instance insist that the vertical separation of powers brings government closer to the people. They also simply accept federalism as a fact of political life.
Dispersal of Power: presidential and parliamentary models
Contrary to the concentration of power in the British parliamentary system, the American constitutional framers also believed strongly in the general idea of dispersing power among different branches of government according to the doctrine of theseparation of powers. Constructing a system of checks and balances at the federal level of government in particular, they created a bicameral Congress with co-equal powers in the House of Representatives and the Senate, and a presidential system of separate executive power deriving its legitimacy from popular election as well. At the same time, they added to this horizontal separation of powers a vertical federal dimension.
The American ‘compound republic’ therefore constitutes a case ofplural federalism. Its general characteristics are a strong second chamber, and a pluralised system of intergovernmental relations among numerous and relatively autonomous agencies. Policy-making in the Congress depends on a large number of committees and subcommittees. Except for a few joint committees, these are kept separate for the House and Senate chambers. Decision making is not typically tied to partisan majority rule, instead relying on pluralised processes of bipartisan compromise. Federal public policy is based on plethora of mostly conditional grant programs the number of which can only be estimated.
Federations embedded in the British parliamentary tradition, by comparison, continue to see parliamentary majority rule as the main source of democratic legitimacy. These are cases ofparliamentary federalism. Executive power is vested in the cabinet sitting on the front benches of Parliament and supported by a party majority. Typically, as in the Canadian case in particular, the upper legislative chamber is weaker. All bills have to be passed by the Senate as well, but serious objections to a bill passed by the parliamentary majority in the lower House are considered as a violation of responsible government. There are fewer parliamentary committees with broader mandates roughly duplicating the cabinet structure. A few joint committees of both House and Senate are restricted to internal business of the legislature as a whole.
Intergovernmental relations tend to become politicised and are conducted through high-level negotiations among executive leaders deriving their legitimacy from parliamentary majority power at both levels of government. Public policy is typically framed by fewer and more general agreements on transfer payments and cost sharing. Party discipline overrides compromise on regional policy preferences. Considerations of regional fairness are left to the political sensitivity of the Cabinet and Prime Minister. While the dual (horizontal and vertical) separation of powers in plural federal systems tends to disperse political conflict in a pluralised configuration of overlapping or cross-cutting interest cleavages, the adherence to majority rule and the need for intergovernmental cooperation more likely constitute conflicting operational principles in parliamentary federal systems.
Coordination of Powersin the Legislative Process
Federal systems vary significantly in the degree to which the lower-order governments participate in national decision-making. There are two distinct models of federalism pertaining to this question of regional participation in the federal legislative process. The American model is based on strict institutionaldivision of powers. Congress and the States enjoy a formal independence from each other. Coordination can only occur through informal processes of intergovernmental relations.
German federalism provides the other model. Here, the governments of the GermanLänderare direct participants in federal legislation because their representatives sit in the upper legislative chamber, theBundesrat, which possesses co-equal powers with regard to all bills affecting constitutionalLänderrights. German federalism therefore can be characterized as a system ofinterlocking powers. Coordination among the two levels of government is directly organized into the federal legislative process. Instead of relying exclusively on intergovernmental relations, this coordination takes place through mediation and compromise in a bicameral committee.
Regional Representation: ‘Senate’ and ‘Council’ models.
The comparison between the American Senate and the GermanBundesratleads to another and closely related distinction. One of the basic principles of federal governance is dual representation of the entire nation and its various territorial subunits, states, provinces, cantons orLänder, in a bicameral legislature at the federal level of government. But there are two very different ways of bicameral organization.
One is based on theSenate principle. As in the American and Australian cases, for instance, Senators in the upper chamber are directly elected by the population living in these territorial subunits. There are, in other words, two forms of popular representation. The members of the lower house jointly represent the entire population of the federation. Senators in the upper house, on the other hand, represent regional populations. They have a mandate that is as free as the mandate of lower house members. In particular, they are not bound to instructions or any other form of guidance from regional governments. The principle of institutional power separation is maintained.
The system of interlocking federalism in Germany follows an entirely different rationale based on thecouncil principle. The members of theBundesrat(literally: federal council) are instructed representatives of theLändergovernments. In contrast to the American Senate, for example, where each state is represented by two senators, and each senator has one vote regardless of the size of the state she or he represents, the votes in theBundesratare weighted according to the size of theLandpopulation, currently six, four or three. From its own ranks, eachLandgovernment appoints the same number of regular members to theBundesratas the number of votes it has. Because they are bound by the instructions of theLändergovernments, the members of theBundesratcannot vote freely or individually. EachLanddelegation must deliver its vote as a block vote. In fact, it is delivered by the leader of the delegation who often is the Prime Minister of theLand. The essence of the council principle is indirect representation of the regional population. It is not directly represented as in a senate but indirectly by its government.
Most of the world’s federal systems have followed the American model of power separation and bicameral representation based on the senate principle. The German model of council representation and interlocking powers is unique — although it has found imitation more recently in the construction of governance in the European Union as well as in the new federal constitution of South Africa.
Functional Division of Powers: legislative and administrative federalisms
Interlocking federalism also leads to a functionally distinct division of powers. Following the institutional path of dividing powers, most federations construct a division of different legislative tasks.
The responsibilities of the central government will typically include such ‘national’ concerns as monetary policy, trade and commerce, foreign and defence policies.
The responsibilities of the regional governments typically include such ‘local’ concerns as culture, education and social policy.
In these systems oflegislative federalism, the legislative functions are divided among different levels of government. In their respective domains, each level of government is responsible for policy making in its entirety, from policy initiative and formulation, to legislation, implementation and administrative execution. Citizens are therefore confronted with two separate strands of public administration (or three in instances of local government jurisdiction). When dealing with a particular issue, unemployment insurance or driver license renewal, for example, Canadian citizens first need to know whether to go to a federal or provincial government office.
German citizens need not consult the government pages of their telephone books in order to find out where to go. At least for the citizens, there is only one strand of public administration. Nearly all administrative tasks in the federation are carried out by the regional governments, orLänder. As in more orthodox federations, theLänderare autonomous in the administration of their own exclusive legislative power.
However, they also are responsible for applying most federal laws and delivering most federal services. Depending on how a specific law has been stipulated, they do so autonomously in their own right, or on behalf of the federal government. In either case, they possess considerable discretion for implementation and execution. On the basis of what is for the most part general framework legislation at the federal level, they can pass specific laws of implementation and regulation. In cases of concurrent jurisdiction, they can also enact supplementary provisions.
And it must not be forgotten, that most federal legislation, insofar as it affects constitutionalLänderinterests, can only be passed with majorityLänderconsent in theBundesrat.
In general terms, then, Germany has adopted a unique system ofadministrative federalism, functionally dividing the powers of both levels of government between framework legislation at the federal level and legislation concerning the implementation and execution of federal law at the regional level.
Consistency and coherence are not upheld by centralized regulatory specification and supervision as is typical for Anglo-Saxon public law systems. Instead, German administrators rely on a tradition of extensive self-coordination ultimately overseen by the courts. All administrative acts are subject to challenge with regard to their constitutionality, conformity to superior statutes, equity and reasonableness.
Style of Policy-Making: cooperative and competitive approaches
The last category for a comparative inquiry into the institutional set-up and performance of federal systems pertains to the way in which federal and regional governments deal with one another. This is a question ofcooperative federalismas compared tocompetitive federalism. In comparison to our other distinctions, the borderlines are more blurred here. There is cooperation and competition in all federal systems.
All governments want to be successful. They will all use their powers to compete against one another on such matters and policy preferences seen as enhancing their respective electoral chances. They all understand perfectly well, however, that many policy initiatives in a complex and interdependent world will only be successful through cooperation. German federalism probably has gone farthest in this respect, by constitutionally prescribing cooperation for certain joint tasks such as post-secondary education and regional development.
If there is a basic difference between cooperative and competitive federalism nevertheless, it can perhaps best be described as follows: In some federations such as Germany, Switzerland or the United States, there is a basic national vision both about the general direction of politics and policy, and about the underlying processes of achieving it, which is shared by both levels of government. Fundamental revisions of the constitution are rarely considered or undertaken. The rules of the game are accepted by all, at least in principle. A cooperative predisposition is at least the general norm of political conduct.
In other federal systems such as Canada, Australia, Belgium or the European Union, there is considerably less common ground. Fundamental differences exist with regard to political culture, mode of regional representation, division and allocation of powers, and basic questions of market regulation and welfare. These federations are faced with periodic or at least occasional constitutional crises. Typically, the conflicting visions among federal and regional governments sustain a competitive tug of war between centralizing and decentralizing forces.
Often, and particularly so in federal systems following the parliamentary tradition, these differences are enhanced by party competition. If different majorities govern in lower and upper chambers of a federal legislature with co-equal powers, one may try to obstruct the political will of the other. Instances of such competitive partisanship have occurred in both Germany and Australia. Policy cooperation and intergovernmental relations can also be strained further when different party configurations tend to prevail at the different levels of government. In Canada, for instance, the electorate tin almost every province shows distinct party preferences, and some parties only compete in provincial elections. In Belgium, even some of the major national parties have split up in regional-linguistic organizations.
A final consideration must be given to interregional competition. In all federal systems, regional governments try to compete against one another for corporate investment by offering infrastructural and tax incentives, regulating union activities and so forth, or by allowing local governments under their supervision to pursue such strategies. They may also seek policy advantages for extraction and marketing of their natural resources. However, in large plural federations such as the United States of America, this is not seen as a violation of the federal spirit of cooperation. In federations with a relatively homogeneous tax, industrial and resource base such as Germany, at least before reunification, on the other hand, it is not typically an issue either. The situation is different in asymmetrical federations with significant socioeconomic as well as cultural cleavages such as Canada or Belgium again where competitive federalism can take on a highly divisive or even destabilizing character. Some of these cases will be discussed at the end of this chapter. .A Typology of Federations
So far we have discussed some of the major distinctive institutional and operational features of federal systems, and we have called these distinctions categories because they are meant to demonstrate that the organization of federal systems follows a limited number of very basic classifications which are mutually exclusive in principle. In the real world, these classifications can combine in an almost infinite number of federal variations or types.
One particularly meticulous scholar has put together a list of 460 types of federalism mentioned in the literature, ranging from active, amplified or anti-vacuum federalism, via bamboo fence, consultative or minimal federalism, to paternalist, respectable, strict and finally world federalism.
Following this line of argument, students of comparative federalism might as well throw up their arms and give up. It is possible, however, to cut through the maze by developing a typology of some major models.
All federal systems have a specific geographic history.
American federalismwas invented as a bold combination of political pluralism and the need for cooperation among the thirteen colonies that had seceded from the British Empire.
Federalism in the British Dominionsfollowed the American example of territorial power division but remained embedded in the British parliamentary tradition.
German federalismsought to combine the tradition of territorial pluralism in the Holy Roman Empire with the need of modern centralized governance.
And in the Hispanic colonies of the Americas, a kind of Catholic federalismevolved from the need of decentralized administration in societies whose indigenous evolution had been overshadowed by a strict adherence to authoritarian centralism.
In order to understand the nature of these federal systems, a few of our comparative categories need to be modified (see below).
With a good deal of historical justification, but for purposes of simplification as well, all other federal systems can be treated as variations of these few basic models. How these basic models have been constructed on the basis of the comparative categories introduced in the previous section can be seen in a summarizing table.
The American Model
To begin this typology with American federalism as it developed in theUnited States of Americaposes some analytical danger. For obvious reasons, on the one hand, American. federalism is the model of all federal models. As we shall see in chapter 3, federalist ideas and concepts had been developed well before the American invention of federalism as a modern form of government. But it was this invention nevertheless which gave the world a simple and practical blueprint to be followed in theory as well as in practice. On the other hand, and for just as obvious reasons, American federalism has remained an exceptional case. To treat it as the main model and principal yardstick, and to judge, as countless textbooks have done, all other federations as variations which either fulfill or fall short of the criteria established by the American model, bears the danger of shortchanging the significance of the other models in their own right.
The American Case
In no other federation is there such a strong ideological commitment to individual liberalism. In most other cases, the relationship between individualism and federalism is typically perceived as an ongoing tension between individual freedom and the regional identities and rights of provinces, cantons, states orLänder. In the United States, federalism is mainly seen as a governmental mechanism in which all powers play their constitutionally assigned part of promoting individual freedom.
Territorial Federalismand Plural Power Dispersal.
American federalism is therefore based on aterritorialdivision of powers and not, or at least not primarily, on the retention of regional cultural identitites. In the same vein, the emphasis of American federalism is onpluralpower dispersal and not on the balance of power among two different territorial constituencies, nation and states. The horizontal division of powers between the two Congressional chambers and the Presidency is more jealously watched than the balance of power between federal and state governments. The Senate is not only co-equal to the House of Representatives in matters of legislation, it also has additional powers such as confirming important Presidential nominations (including those of Supreme Court judges), ratifying treaties and, last not least, trying impeached officials including the President.
The agenda of the American legislative process is primarily driven by virtually hundreds of committees and subcommittees which are in turn densely encircled by special interest lobbyists. Initiative often comes from caucuses such as the Black, Congress-women’s, Sunbelt or Conservative caucuses. These are informal networks of personal connections and mutual interest which shape the Congressional dynamic more than partisanship within or between the two legislative chambers...
Power Separation and Senate
Because the American Constitution is constructed upon the principle ofpower separation, and the upper legislative chamber of the American Congress is based on thesenate principleof popular representation by region, state interests have to rely on these pluralized agenda-setting channels of Congressional legislation as much as any other special interest organization. Moreover, it must be suspected that the influence of even the more important members among the so-called intergovernmental lobby in Washington, the Council of State Governments or the National Governors Conference, for instance, pales against the concerted pressure of corporate American on Congressional legislators. The same goes for the National Association of Counties, the National League of Cities or the U.S. Mayors conference.
Intergovernmental Relations.
Intergovernmental relations, on the other hand, an expression often used coterminously with American federalism, permeate the American process of governance at all levels. They comprise all interactions between federal, state and local government. The main reason of this mostly cooperative form of American federalism (see the discussion below) are the hundreds of federal grant programs either based on shared cost financing, and/or embedded in federal guidelines, and requiring shared administration. The process remains based on alegislativedivision of powers, though: The Congress legislates, federal government departments set up the programs, states and local governments only participate in the implementation and administration of these programs.
Given the efforts at all levels of government to reduce public spending and to balance budgets, the usually pragmatic and low key nature of intergovernmental relations has become somewhat politicized more recently. As the Congress seeks to reduce its grants commitments, state governors have gained a more prominent role in hearings and federal government offices, demanding that conditional strings attached to existing grants programs be removed and more autonomous policy power be given back to the states. This does not mean , however, that the end of the principle of power separation was in sight. The process remains informal and has been aided, at least during the Clinton years, by the personal connections between a majority of Republican governors and a Republican Congress.
Cooperative Federalism.
There is wide-spread consensus about the generallycooperativenature of American federalism. Some even invoke images of cowboys in the wild west as the beginning of a social tradition of shared partnership. Historically more accurate may be the view that American federalism evolved from nineteenth century dualism to twentieth century cooperation. Interpretations of early American federalism as dual federalism focus on the constitutional separation of legislative powers as well as on competition among the two levels of government in the use of their exclusive responsibilities. Twentieth century cooperative federalism is then seen as a pragmatic response to the realization that in a complex modern world policy making powers cannot be kept separate in watertight compartments.
Centralization.
But even this interpretation of U.S. federalism as moving from duality to cooperative inter governmentalism is at least partly misleading. Cooperative federalism as it developed in particular since Roosevelt's New Deal legislation in the 1930s coincided with a process of centralization rather than cooperation of the basis of maintained structural balance. The Congress increasingly used the supremacy and commerce clauses of the Constitution in order to override the States Rights clause of the 10th Amendment (see chapter 6), and it was generally supported in doing so by the Supreme Court. As a consequence, states either had to comply with the centrally imposed regime of federal grants, and/or saw its authority bypassed altogether as the federal government began to deal directly with what it saw as the needs of local government. In other words, the allocation of all residual powers to the state level of government in the 10th Amendment - those powers not explicitly enumerated as federal powers, increasingly lost its meaning. The Congress today can legislate in almost any policy area it declares to be in the national interest.
Judicialization.
A further development has been a considerable judicialization of American federalism. The Supreme Court more than ever before has become the ultimate arbiter of what either level of government can or cannot do in order to regulate the lives of American citizens. Moreover, these decisions have not typically been rendered in consideration of the constitutional provisions regarding the vertical separation of powers. Instead, they were primarily meant to uphold civil liberties based on the Bill of Rights and the due process and equal protection clauses of the 14th Amendment (see chapter 7).
More recently again, and again under the general political impact of a growing commitment to reduce the omnipresence of federal governance in American politics by a Republican-led Congress, the Supreme Court may have embarked, often on the basis of narrow majority decisions, upon a path of reversing the secular trend of centralization. However again, in line with the deregulatory spirit of neoliberalism, it would appear that this reversal is based on more limited interpretations of the federal government’s right to regulate trade and commerce rather than principled reconsiderations of the federal balance of power.
Constitutional Stability.
In short, federalism in the United States of America appears to be in a flux at the outgoing twentieth century, and one might speculate whether the next century will reverse the secular trend of centralized cooperation. The overall impression of American federalism in the United States, however, at least as it evolved since the Civil War, is one of enormous continuity and stability. American politicians rarely raise fundamental questions about whether a constitutional document that is more than two hundred years old still serves the needs of its citizens in a world of rapid global change and interdependence. Glorifying incantations of the constitutional framers’ timeless wisdom abound instead. In particular and despite a growing trend of regional multicultural fragmentation, American federalism remains firmly embedded in its commitment both to the primacy of individual rights and a strictly territorial organization of politics.
American citizens for the most part accept this state of affairs without much fanfare or enthusiasm. American political culture is driven by a unique degree of individualism, parochial nationalism, and extraordinary level of political cynicism and apathy. Judging by presidential elections, for instance, the rate of voter participation is among the lowest in the industrialized world. In part, that may be so because Americans instinctively know that the system of horizontal as well as vertical checks and balances works in protecting them against any excessive and lasting abuse of power. In part, it may also be so because