Why is federalism not good
Measures in the Corona crisis
Advantage of federalism
Dr. Arthur Benz is Professor of Political Science at the TU Darmstadt and the author of several standard works on federalism and politics in multilevel systems. From 2010 to 2019 he headed the department “Political System of the FRG and Comparison of Political Systems” at the Institute for Political Science. He has been retired since October 2019, but continues to lead his DFG project “Multi-level integration between national and international administrations”.
HSS: In the first few weeks of the Corona crisis we experienced a lively debate about German federalism: Its supporters argued that it enables a fruitful competition for the best political solution, in which the individual federal states ultimately orientate themselves towards best practice. Critics, on the other hand, spoke of a “patchwork of regulations” and complained about a lack of cohesion. Which perspective can you join?
Prof. Dr. Arthur Benz: In the Corona crisis, politicians had to react with a high level of uncertainty about the course of the pandemic. In this situation, federalism has proven itself for several reasons. On the one hand, the necessary measures to restrict people's contact and to provide medical care first had to be implemented on site, and in a federal state, the state governments, due to their relative proximity to hospitals and administrations, can react better than the federal government through political decisions and secure acceptance. Second, the countries reacted differently to the pandemic, which is better than a uniform approach if there is uncertainty. Thirdly, together with the federal government, they acted in a coordinated manner, through agreements that left the state governments room for maneuver. This combination of decentralized and coordinated politics is suitable to ensure the necessary adaptability and learning ability of politics and administration in view of the uncertain development. One could almost observe how the state governments communicated with one another and reacted to advances from others. It also makes sense if the countries now pursue their own paths within the agreed framework in order to gradually lift the restrictions on social life.
However, federalism has yet to pass the real test. It comes when the economic and financial consequences of the current crisis have to be dealt with. Then it will not be a matter of quick financial aid for companies and employees, as has now happened in the short term, but of distributing the burdens between the federal government and the federal states and among the federal states as well as tax policy decisions. Then legislation is required with the consent of the Federal Council and coordination under the condition of distribution conflicts. The federal and state governments, whose governments are mostly bound by coalition agreements, have found it difficult in the past. Then it is not about competition or uniform regulation, but about appropriate, acceptable burden sharing.
HSS: Has anything changed in your assessment with the progress of the crisis and, above all, the beginning debate about an end to the lockdown? Do you think that different regional approaches with a view to a gradual normalization of public life make sense?
The coordinated but limited independent action of the federal states is continuing, and that is a good thing. With gradual normalization, it makes even more sense than with the introduction of restrictions on social life for countries to pursue their own paths, mind you within the agreed framework. Then they can learn from each other and adapt their measures flexibly. The idea that we now need uniform rules for schools, kindergartens, companies and shops as well as uniform hygiene and distance regulations in order to control the normalization of life is naive. It is now necessary to make decisions that are adapted to regional and local conditions. But at the same time there must be no unregulated process of opening up and the federal and state governments must constantly exchange their experiences and assessments. This is exactly what characterizes good coordinated governance in federalism.
It makes sense for the federal and state governments to continue to coordinate their policies because they have to make difficult trade-offs. Against the growing pressure of various stakeholders, they can better defend themselves together, and they have to. Incidentally, the cooperation also ensures that representatives of almost all parties represented in parliaments are involved, although not formally through parliamentary decisions, but informally through information and consultations.
HSS: What changes in the relationship between the federal government and the states will result from the expansion and adaptation of the Infection Protection Act, which came into force on March 28th? In your opinion, how will the amendment affect the federal-state power structure?
The amendment to the law contains authorization to issue ordinances for the Federal Minister of Health, which he can exercise without the consent of the Federal Council. They concern supraregional measures and therefore do not seem to permanently change the relationship between the federal government and the federal states. However, one should wait and see what decisions will be made in a year when the report required by law is submitted to the Bundestag and Bundesrat. It should contain suggestions on the “legal, infrastructural and personnel strengthening of the Robert Koch Institute and, if necessary, additional authorities”. In a year's time we will probably also have to talk about the financial burdens of the crisis. The states would be wisely advised if they did not enter into an exchange deal with the federal government, as they did in the negotiations on the last financial equalization reform, in which they exchange administrative powers for financial concessions.
HSS: Are there any lessons from the Corona crisis for future federal-state coordination in the event of an epidemic?
One should not rush to call for federalism reforms, but first analyze what problems there were and what the causes of the problems were. Perhaps schools should have been closed earlier and major events banned earlier, but if this is the case (one is always wiser afterwards) the question arises as to why this did not happen. The lack of protective clothing for medical personnel and respiratory masks could perhaps have been prevented through appropriate preventive measures. But I don't know whether this should have been better coordinated between the federal and state governments. It would have been enough if the pandemic plans of the RKI and the federal states had been observed.
HSS: Cooperative federalism, as we know it from Germany, is based on close interlinking between the federal government and the federal states, while dual federalism, such as in India or the USA, is based on a separation of competencies and a pronounced statehood of its member states. Which model is more capable of acting in the Corona crisis?
The comparison of cooperative and dual federalism easily leads to misunderstandings. In each state the competencies are divided, but not clearly delimited from one another. The distribution of competences provided for in the Basic Law is more precise than corresponding regulations in other federal constitutions. But tasks always exceed the limits of competencies. Therefore, with the expansion of public tasks in all federal states, coordination relationships between the federal government and the member states have developed, and everywhere one speaks of cooperative federalism or "shared powers".
Models of federalism differentiate less according to whether politics in the federal government and the member states are separate or interlinked, but rather according to the way in which tasks are coordinated between the federal government and the member states and under what conditions this happens. They combine different coordination systems with parliamentary and non-parliamentary forms of democracy. Coordination can be compulsory or voluntary, through participation of the member states in federal policy or the federal government in the policy of the member states, and through negotiations or mutual adaptation in competition. In Germany, the mandatory cooperation between the federal government and the federal states dominates, so that both sides have to come to an agreement. This happens under the condition of parliamentary democracy in the federal government and in the states, which is why the governments have to answer for the results of the cooperation in their parliaments to different coalitions. In other federations with parliamentary systems of government, one avoids the need to agree on common tasks and accepts that individual member states go their own way. Or more rights of deviation for experimental politics are allowed than in Germany.
In the Corona crisis, as far as I can tell, you cannot see any significant differences in the ability to act if you compare these two models of federations. This is due to the fact that in this case the federal and state governments cooperate voluntarily and only coordinate what was necessary, leaving the states room for maneuver. The differences remained small, especially since all parties have so far accepted the measures taken. That can of course change. But the art of politics in a federal democracy is to strike a healthy balance between autonomy and coordination.
HSS: American federalism does not give a good picture in the crisis: The conflict between President Trump and the governors of the country is coming to a head, and New York Governor Andrew Cuomo recently complained that the US states were asking each other about essential infrastructure, such as such as ventilators, compete. How is this dysfunctional dynamic explained?
This dynamic is inherent in the American system of government, and it is indeed dysfunctional. In the federal democracy of the USA, on the one hand, the heads of government (president or governors) and the legislative organs have to agree on political decisions; on the other hand, the competences of the states and the federal government overlap, which also creates conflicts and a need for coordination. This system was constructed by the Constitutional Fathers because they wanted to limit state power and secure their freedom. The result is that governance can only succeed through negotiation.
But now a two-party system has formed in the USA because all offices are awarded by majority vote. The two dominant parties were loosely organized in the states until well into the 20th century, which is why elected politicians were able to come to an agreement in informal negotiations without faction discipline or consideration of party programs. In the meantime the parties have formed national organizations and a strong polarization has developed between the Democrats and Republicans. The confrontation is evident between the presidents and majority factions in one or both chambers of Congress, but also between the federal and state governments. The confrontation only came to a head under President Trump; it has shaped American politics for a long time.
If we had such a party-political confrontation in Germany, the system of government would have long since been completely blocked. The fact that this cannot be observed in the USA is due to the fact that the president often governs through “executive orders” (ie, by turning off Congress) and that the states use their competing powers to pursue a different policy than the federal government. The governor of New York was able to take measures to contain the corona virus when the president said it was not necessary, and that is why Trump had to quickly give up his claim to omnipotence over the states. But governments are also competing with one another for resources or political recognition, which prevents coordinated action. The confrontation between parties and federal and state governments was also the reason why health care for poor people in the United States is poor.
HSS: In a global comparison between federally organized states and unitary states: Is there a pattern here as to which ideal type is more capable of acting in the corona crisis or are other factors (e.g. capacities of the health system, previous experience in the field of pandemic control, etc.) decisive from your point of view?
Many believe that in a unitary state, especially in times of crisis, decisions could be made more quickly than in a federal state. But quick decisions can also be wrong. What are the key success factors of governance in the Corona crisis has yet to be researched. So far, we have lacked the data and information necessary for such a comparison. The available figures on infected or dead people show a trend over time, but they are not comparable between countries and say nothing about the success or failure of measures.
Research into dealing with disasters does not suggest that concentration of power is beneficial. The real crisis management takes place to a considerable extent in cities, municipalities, districts or regions. In pandemics, of course, the capacities of a health system are crucial. Comparative studies give no indication that this is more likely to be the case in unitary states than in federal states, or vice versa. The relationship between state organization (federal state versus unitary state) and health policy is more complex. Incidentally, the simple distinction between unitary state and federal state has not proven to be meaningful because different state organizations are hidden behind these terms.
We know, however, that global problems such as climate change, the flow of refugees, economic crises, but also the current pandemic, have local causes and global effects and that the global effects, in turn, show very different localities. Politics must therefore react to complex, interdependent and dynamic developments, and it is better able to do this if it is organized accordingly. These theoretical considerations speak for the superiority of a federal organization, because it allows autonomous decisions at different levels as well as can coordinate these decisions. But then you have to understand federalism as a principle that requires both autonomy and coordination.
HSS: Let's take a look beyond the nation-state: The European Union is also a multi-level system, but in the Corona crisis it is criticized as being cumbersome and incapable of acting. Why is supranational coordination so difficult, even though effective control of the pandemic is in the interests of all member states?
The supranational coordination worked in Europe through imitation, because every state reacted to the impending disaster with similar measures. This also and rightly included restricting traffic. This was certainly achieved faster through decisions by the states than through a pan-European decision. The Commission, in turn, was very quick to repeal state aid control and debt limitation rules to allow states to give financial aid to businesses.
The fact that the discussion about financial policy instruments to cope with the economic consequences of the pandemic is so difficult is due to the different distribution interests of the member states. When it comes to money, the national budgets are affected, and then the national parliaments have a say. The proposals currently being put forward by the EU Commission not only have enormous quantitative dimensions, but also have long-term effects. This has to be discussed critically without ignoring the fact that the expected recession and the costs of the pandemic will affect the member states differently and that the financial strength of the states is unequal. In the EU, too, the question of burden sharing arises, which is even more difficult to resolve here than in the German federal state.
The question that needs to be asked with regard to Europe is what needs to be coordinated at this level. The fact that the European Commission thinks it has to present a roadmap for exiting the contact restrictions is rather harmful, because this cannot be decided across Europe. It would make more sense for the Commission to work out a long-term strategy on how to get out of the economic crisis caused by the shutdown without throwing all climate and social policy goals overboard. This would require European coordination.
HSS: Prof. Benz, thank you very much for the interview.
The interview was conducted by Sarah Schmid, HSS
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