POWER AND REPRESENTATION IN SIX FEDERATIONS

COMPETING APPROACHES TO FEDERALISMSociological Approachesplaces society at the centre of the analysis, and

holds that ‘the essence of federalism lies not in the constitutional or institutional structure but in society itself.

Federal government is a device by which the federal qualities of the society are articulated and protected’.

Federalism is a pattern of social organisation and a type of political culture.

the term ‘federal’ is often used broadly to refer to a style of relations between citizens or groups in a state that mutually preserve the autonomy and integrity of each party.

The term ‘federal society’ refers to cleavages in society that correspond to federal territorial divisions.

the broadest definition of federalism because they emphasise all types of relations in society, not merely those with government.

However, these approaches also tend to assume that authentic federations possess a federal political culture, which in turn requires a federal society.

Constitutional Approachesconstitutional or legal approaches view

federalism as a legal principle of power division between two levels of governments.

The formal constitutional allocation of powers, as well as the institutions engendered by these constitutions.

K.C. Wheare and Carl Friedrich. It has since served as the dominant tradition

informing a wide range of studies on federalism, including studies of administration, public policy and centralisation.

While they produce much more limited and precise definitions of federalism than sociological approaches, the central shortcoming of constitutional approaches is that their preoccupation with the formal allocation of powers obscures important informal features that affect the actual working of government.

They may be illequipped to assess whether a federation is indeed ‘federal’ in its operation – sharing power and guaranteeing autonomy to the constituent units.

Although many works attempt to measure, classify or define federal systems according to criteria such as the type of executive or the division of powers in a federal system, this has not led to explanatory theories, predictions, or general classifications of the various types of federalism.

Rather, it has produced catalogues of the institutional variations found in federal systems and a great deal of literature describing the operation of institutions in single federal states.

While a constitutional approach is useful for cataloguing a diverse field of federal cases, and identifying similarities and differences among federal systems, a strictly constitutional approach is unsatisfactory because it is too narrow and rigid, and applies formal constitutional criteria that few systems match.

Governmental or Political ApproachesView federalism as a governmental or

political concept. The political principle of power diffusion

becomes the defining feature of federalism.

discuss the location of sovereignty, the protection of autonomy, and the genesis and evolution of the original federal contract, with only secondary reference to the structures and institutions of federal systems.

DEFINING FEDERATIONSFederal institutions can be defined as a set of three

types of rules:1. Rules that create separate territorial spheres of

authority for the federal and federated governments, with a source in separate territorial bases.

2. Rules that allocate resources between the federal and federated governments.

3. Rules that provide for representation of the federated units in decision-making at the federal level.

Federations have these features distinctively (in the case of 1 and 2) or to varying degrees (in the case of 3).

Federalism is a territorial division of power between at least two autonomous levels of government.

Although the allocation of competencies may vary, each level of government is autonomous in at least one area of action and the autonomy of each level of government is contractually guaranteed in a constitution.

As a territorial method of power division, federalism introduces a territorial dimension or principle of representation into the state.

The existence of two levels of government also means that channels of representation exist for two levels of government, and separate paths of political authority link the people to two independent representative governments.

The diffusion of power through the allocation of competencies between the federal and state levels stipulates that each level of government must have some policy-making autonomy, but allows for a wide range in the degree to which this occurs.

This does not rule out areas of shared jurisdiction.

Although a strict division of exclusive powers among two levels of government is the classic model inspired by the American federal ideal, such a separation is rare in practice.

Rather, the method of division of powers in federal systems varies widely, and seldom are competencies exclusively divided.

absolute autonomy does not exist. Autonomy can be restricted by framework legislation (such as the federal legislation that guides Länder implementation of policies in Germany, or the National Health Act in Canada which establishes national standards in an area of provincial jurisdiction) by judicial review with a bill of rights and by financing constraints.

It is the guarantee of autonomy for each level of government that distinguishes a federal system from a unitary state and from other types of relationships between states.

What distinguishes federalism from a decentralised unitary state is whether the central government has the power unilaterally to alter the distribution of powers in the state.

In federal systems, mutual consent is required before the political ‘contract’ between the federal government and the constituent units can be altered.

Federalism should also be clearly distinguished from consociationalism, a non-territorial method of dividing power and autonomy between two or more groups.

While both federalism and consociation are cleavage management strategies for protecting the autonomy of minorities, consociation involves power-sharing and negotiation among elites which represent organised pillars or segments of society, therefore requiring a segmented social base.

Although federations commonly employ consociational devices, federalism does not necessarily imply a particular style of relations between the levels of government, and does require a sectionally diverse social base.

bicameralism is a defining feature of federalism.

Not all upper houses produce the same effects, however: some have weak powers while others are strong; some structure intergovernmental cooperation while others do not.

This general definition identifies the two key dimensions along which federal systems vary – the allocation of power and resources and the requirement for intergovernmental co-operation – and uses these as the common ground for a comparative study of federalism.

THE ALLOCATION OF RESOURCES BETWEEN THE FEDERAL AND STATE GOVERNMENTS

Legislative power may be assigned exclusively or concurrently to a level of government.

Two different traditions of federal state design. The Anglo-American federations follow a model of allocating exclusive legislative and administrative power in a policy field (dual federalism), while European federations have historically used a functional division of powers, allocating legislative power to the federal level, leaving the states to administer and implement laws.

A level of government enjoys the greatest autonomy when it possesses both legislative and executive powers in a certain policy field.

This allows the government not only to make decisions, but to ensure its objectives are followed in the implementation stage.

The Canadian, Australian and American federations tend to allocate legislative and executive power in the same policy area to a single level of government, in a style of ‘dual’ federalism, in which the two levels of government act autonomously.

Sometimes administrative power in a policy area is not allocated to the same level of government responsible for legislation.

In the German, Austrian and Swiss federations, the government exercises broad legislative powers, and administrative power is generally assigned to the constituent units and this allows the state governments to implement legislation according to regional needs, while the federation can maintain uniform standards.

Exclusive legislative competence coupled with exclusive executive powers for the administration and implementation of laws maximises a government’s autonomy.

Implementing executive yet not legislative power in a policy area gives states an additional yet limited measure of influence.

Finally, jurisdiction may be shared in some policy fields, where the federal and state governments each possess exclusive jurisdiction over particular aspects of policy.

Canada and the United States, and, to a lesser extent, Australia and Switzerland, have a wide range of areas in which both levels of government have jurisdiction.

The Australian, American and Austrian constitutions allocate fewer competencies than the Canadian, Swiss and German constitutions.

The extent of exclusive state jurisdiction gives us some indication of the legislative power of the states.

The three federations that adhere to a jurisdictional principle of power division, Canada, the United States and Australia, have the greatest range of enumerated state powers.

By comparison, Switzerland, Austria and Germany have relatively few policy fields falling under exclusive state competence.

The case of Austria stands out among the six cases, as a substantial majority of policy fields in the constitution are assigned exclusively to the federal level of government.

The assignment of residual powers: The American and Australian constitutions were designed chiefly to enumerate a limited range of powers, clearly assigning federal powers and leaving the residual to the states. In Canada, the only federation of the

six in which the constitution assigns residual powers to the federal level, the framers had the opposite task of enumerating a complete list of state tasks

Legislative power may also be held concurrently by both levels of government, allowing either level of government to act.

This gives the federation some flexibility by allowing the state governments to legislate according to their needs until circumstances require central legislation from the federal government.

Exclusive and concurrent jurisdiction in federations.

Concurrent powers are used extensively in the German, Australian and Swiss federations.

In the German and Swiss federations, concurrent power provides a way for the federal government to create general framework legislation and leave implementation to the Länder.

In Germany, concurrent legislation implemented by the Länder covers a broad range of policy areas, including research and development, hospitals and public health, social services, pensions, infrastructure, transport, agriculture and natural resources, and economic affairs.

Areas of concurrent jurisdiction in the Swiss constitution administered by the cantons include primary and post-secondary education, public health, unemployment insurance, social services, pensions, cultural matters and the environment.

In Austria, there are very few concurrent powers – the centralising constitution assigns most powers exclusively to the federal government.

The Länder have concurrent jurisdiction only over hospitals

INDICATORS OF POWER ALLOCATIONThe centralisation of public finances in a

federation serves as an efficient indicator of the allocation of power and authority in a federation, and expresses the allocation of power and authority as a quantitative measure, suitable for comparison across time and across cases.

Two measures of centralisation are used here:1. The revenue-raising capacity of the central

government relative to all levels of government combined.

2. The total expenditures of the federal government relative to all levels of government combined.

These two measures of centralisation capture two related yet different dimensions of power allocation.

The first, the revenue-raising capacity of the federal government, captures autonomy, or the power derived from control over the allocation of resources, while the second measure, the expenditures of the federal government, captures the scope of decision-making authority and control over policy implementation.

Centralisation Measured by Revenue-Raising CapacityComparing the taxing power of

the federal government to that of the units of the federation captures the amount of resources that are at the disposal of each level of government, so is a good indicator of financial autonomy.

RULES PROVIDING FOR PARTICIPATION OF CONSTITUENT UNITS IN

FEDERAL DECISION-MAKING The high degree of co-operation required for policy

implementation and the effective representation of the sub-national government in the federal legislative arenas.

While the former is present to degrees in most federal systems the latter remains a distinctive feature of the German model of federalism, and creates the condition where both orders of government occupy the same arena of competition.

In the German case, the Länder governments are represented in the Bundesrat, and can veto legislation that affects Länder interests.

Many practices of co-operative federalism – intergovernmental co-ordination of policy planning, financing and implementation – can be observed in models of dual federalism, such as Australia and Canada

One prominent feature of co-operative federalism in Canada and Australia is the frequent use of federal–provincial conferences and interprovincial meetings to negotiate a wide range of policy issues.

Generally, interaction between the two levels of government is likely to occur whenever the constitution assigns a function to both levels, fails to clearly allocate a policy area, or when governments lack the resources to perform their assigned functions

Joint federalism enhances the role of the state governments to the extent that they participate as veto players in federal policy making.

This produces a strong incentive for federal parties to develop strong Land–federal linkages.

A similar effect may occur when strong norms or traditions of consultation exist between the state and federal governments in decision making at the federal level.

In this way, consensus democracy can affect the incentives and constraints produced by federal institutions

In Swiss democracy the federal government regularly consults the cantons on important federal actions.

In addition, over 20 per cent of elected representatives in the federal legislative houses hold seats in cantonal legislatures.

While cantonal representatives are directly elected, such joint office holding could to a limited extent produce a de facto representation of cantonal legislatures.

This could only weakly produce a joint federalism effect because of the limited number of legislators in joint positions.

The potential for a ‘joint federalism’ effect in Switzerland is further weakened by the extreme decentralisation of the Swiss federation, compounded by the further decentralisation of legislative authority through the use of referendums means that the federal arena is less influential than the cantonal arenas.

The incentive for parties to maintain their cantonal flexibility is highly important, and capitulating to the interests of the federal party would involve high costs.

Swiss parties are highly confederal, and exist as loose groupings of cantonal parties with very low party cohesion.

The cases of Canada and Australia are good examples of the de facto power of the upper house being limited by the political costs of exercising its de jure powers.

In Canada, the upper house is weak, due in part to the fact that it is composed of appointed, not elected, representatives of each region in the federation

Although the powers of the Canadian senate are almost equal to those of the lower house, the senate rarely rejects or amends legislation.

the institutional configuration creates a joint federalism effect strongly in Germany, moderately in Austria, weakly in Switzerland (if at all), but not at all in the United States, Australia and Canada.

In the United States and Australia, direct elections to the upper house mean state and federal competitive arenas do not become intertwined to the same extent as in the German and Austrian systems.

While the US senate is strong and the Australian senate moderately so, these upper chambers constitute a third arena in politics, rather than an interlocking of state and federal competitive arenas.

Allocation of resources, Canada and Switzerland are the most decentralised federations, the United States and Germany are moderately centralised, and Australia and Austria are the most centralised federations.

As the ‘power’ of the state level increases, the state-level arena of competition will become more important, for both parties and voters.

Joint federalism, in which the state governments play a key role in policy making at the federal level, is found strongly only in Germany, and moderately in Austria (the Austrian upper house is too weak for a strong joint-federalism effect).

In these cases, joint federalism affects politics in the federal state by producing an incentive for close intra-party co-operation between the federal and state level.