A Successful Failure? The Contested Implications of Germany's Federal Reforms

Abstract

The article uses the German government's ‘Response to the Interpellation of the FDP Party Group’ in late March 2008 for two main purposes: to provide insights not only regarding the ‘official’ political assessment of the reform (which is much too optimistic), but also empirical data on the revised Basic Law. Essentially, even though Article 84, Paragraph 1 has been reformed, articles that still require Bundesrat consent account for almost half of all federal laws. In fact, this article shows that other articles unaffected by the 2006 reforms essentially replace Article 84, Paragraph 1. That is, they still make it necessary for legislative acts to obtain Bundesrat consent. These elements of the Basic Law are effectively ‘catch-all elements’ (Auffangtatbestände) following the abolition of the old Article 84. This contribution further shows that the laws subject to Bundesrat consent on account of these remaining ‘catch-all elements’ regulate highly contested subjects, while legislation that no longer requires Bundesrat consent is politically uncontested. The implication is that there is good reason to believe that this reform will collapse under ‘divided government’ – ironically the situation under which the reform was intended to provide the most benefit.