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ABSTRACT
This article explains the zigzag of the stepwise federalism reform in Germany by accessing the theoretical concept of institutional incongruity. It is argued that the existing imbalance between competencies, policy problems and fiscal resources was further exacerbated as actors adopted inconsistent institutional ‘layers’ during the sequential reform. Two case studies on higher education and unemployment policy reveal that actors finally reverted to joint decision-making and revived ideas of solidarity in order to remedy inconsistent reform results, although ‘disentanglement’ and competition had been the leitmotivs underlying the first reform step. The article confirms that institutional congruity is hardly attainable in federations. Reform attempts aiming at disentangling responsibilities and fiscal resources encounter insuperable difficulties, because policy issues more than ever transcend the borders of single territorial units and need joint financing. The study concludes by discussing the question whether joint decision-making – compared to dual resp. ‘layer-cake’ federalism – owns a specific democratic quality.
Acknowledgements
We would like to thank the reviewers for their constructive comments on this paper.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1. See the law on general standards (BGBl. I, 9 Sep 2001, p.2302), the law on fiscal equalization, and the law on continuing the Solidarity Pact (see BGBl. I, 20 Dec 2001, p. 3955).
2. With a critical stance see Benz Citation2005, Citation2008.
3. Boundary modifications or ‘Functional Overlapping Competing Jurisdictions’ (Frey and Eichenberger, Citation1996) have widely been discussed as possible solutions. Whereas the first option is hard to achieve in Germany due to constitutional hurdles stipulated by art. 29 Basic Law and to reasons of political rationality, the second downgrades the territorial structuring of federalism and can partially be realized at best.
4. See decision of the Federal Constitutional Court on the ‘junior professors’, 2 BvF 1/03, 2 BvF 2/02, 27 July 2004.
5. BGBl. I, 2098, 2102.
6. See decision of the Federal Constitutional Court 2 BvF 1/03, 26 Jan 2005.
7. See http://www.stuttgarter-nachrichten.de/inhalt.bildungsbereich-abschaffung-des-kooperationsverbotes.9e358d03-8ca7-458f-a740-78c64ba3e94c.html; http://www.spiegel.de/unispiegel/studium/bildungsfoederalismus-das-kooperationsverbot-kippelt-a-814584.html (accessed 5 Aug 2015).
8. BT-Drs. 18/2710.
9. See the draft bill, BT-Drs. 18/2663; BT-PlPr. 18/57.
10. BT-PlPr. 18/57.
11. See BT-Drs. 18/3359; response of the federal government to the minor interpellation of the Left party.
12. See BT-PlPr. 18/66, at p.6231.
13. See http://www.deutschlandfunk.de/hochschulpolitik-frei-gewordene-gelder-von-laendern-nicht.680.de.html?dram:article_id=320375 (accessed 5 Aug 2015).
14. BR-Drs. 570/14, decision on the amendment of the Basic Law (art. 91b).
15. Originally, the SPD had proposed to include school financing and advocated a new Art. 104c Basic Law in order to realize durable federal financing.
16. BT-PlPr. 18/66, at p.6237.
17. Draft bill of the federal government, BT-Drs. 18/2710; BR-Drs. 323/14.
18. See BT-Drs. 18/2710, at p.7.
19. Standing committee for education, research and technological impact assessment, recommendation for decision and report, see BT-Drs. 18/3141, at pp.10, 11, 13; BT-PlPr. 18/26, at p.2044.
20. See the statement of the minister president of Saxony-Anhalt Rainer Haseloff, http://www.welt.de/print/die_welt/article128361059/Haseloff-dringt-auf-neuen-Finanzausgleich.html (accessed 31 July 2014).
21. BT-PlPr. 18/58, at pp.5390, 5400.
22. BT-PlPr. 18/66, at p.6231.
23. BT-PlPr. 18/66, at p.6228.
24. See, for instance, BT-PlPr. 18/58; BT-PlPr. 18/66; BT-PlPr. 18/57.
25. See, for instance, BT-PlPr. 18/66, at p.6277.
26. See BT-PlPr. 18/58, at pp.5384, 5402.
27. The reform was nicknamed ‘Hartz IV’, because Peter Hartz, a businessman, chaired a governmental reform commission ‘modern services for the labour market’ established in 2002. The commission produced a series of reform proposals for modernizing social policy. The largest and politically most controversial fourth reform proposal concerned the social law books no. II and XII with the initiative to join unemployment benefits and social security payments.
28. Fourth Law for Modern Services at the Labour, BGBl. I, pp.2954–2955 of 24.12.2003.
29. The term ‘municipalities’ is used as an umbrella term for different territorial units at the lowest level of government, including cities, boroughs and counties. It is the counties, however, who administer and pay for unemployment benefits.
30. Furthermore, by establishing the right of the Länder to deviate in their regulation of administrative units and procedures from federal laws (art. 84 para. 1 (2 and 3) – this provision parallels the concomitant regulations on deviation rights in legislation in art. 72), the reform of the article also aimed at reducing the number of consent laws in the Bundesrat.
31. In 2004, the municipalities had total expenses above €32 billion for social benefits, which amounted to above 20% of their budgets, and in 2015 nearly €50 billion, amounting to more than 24% of their budgets, see Geißler and Niemann (Citation2015: 22–23).
32. Social payments ‘Grundsicherung im Alter und bei Erwerbsminderung’ were to be paid to 45% by the federal level (€1.2 billion) in 2012 (BT-Drs. 17/7402).
33. Law on the promotion of investments in municipalities with low fiscal capacity and to relieve the Länder and municipalities when accommodating asylum seekers, BT-Drs. 18/4975 of 20 May 2015.
34. Sentence of the federal constitutional court of 20.12.2007 (2 BvR 2433/04, 2 BvR 2434/04).
35. BT-Drs. 17/1554, entering into force on 21 July 2010.