HSS: In the first weeks of the Corona crisis, we had a lively debate about German federalism: Its supporters argued that it would enable fruitful competition for the best political solution, in which the individual federal states would ultimately align themselves with the best practice. Critics, on the other hand, spoke of a combination of regulations and complained about a lack of cohesion. Which perspective do you endorse?
Prof. Dr. Arthur Benz: In the corona crisis, politics has had to cope with great uncertainty regarding the trajectory of the pandemic. In this situation, federalism has stood the test of time for several reasons. On the one hand, the necessary measures for restricting people's contacts and for medical care had to be implemented locally, and in a federation, the state governments can react better than the federal government through political decisions and ensure acceptance due to their relative proximity to hospitals and administrations. Secondly, the states (“Länder”) reacted differently to the pandemic, which is better than a uniform approach if there is uncertainty. Thirdly, together with the federal government, they nevertheless acted in a coordinated manner, through agreements that left the state governments room for manoeuver. This combination of decentralized and coordinated politics is suitable to guarantee the necessary adaptability of politics and administration and allows all actors to learn in view of the uncertain development. It is remarkable how the state governments communicated with each other and reacted to suggestions from others. It also makes sense if the Länder now pursue their own paths within the agreed framework in order to gradually lift the restrictions on social life.
Federalism has yet to pass the actual test. It comes when the economic and financial consequences of the current crisis have to be dealt with. Then it will not be about quick financial aid for companies and employees, as is occurring now, but about the distribution of burdens between the federal and state governments and among the states. In fiscal policy, in particular, regarding taxation, legislation is required with the consent of the Federal Council and policies have to be coordinated under the condition of distribution conflicts. The federal government and the states, whose governments are mostly bound by coalition agreements, have struggled in the past to manage such conflicts. In this case, it is not about competition or uniform regulation, but about appropriate, acceptable sharing of the burden.
HSS: Has your evaluation changed with the progress of the crisis and, above all, the ongoing debate about an end to the lockdown? From your point of view, are regionally different approaches useful in reference to gradual normalization of public life?
The coordinated but limited autonomy of the Länder continues, and that is a good thing. With gradual normalization, it makes even more sense than with the introduction of restrictions on social life that the individual Länder follow their own path, certainly within the joint policy framework. Then they can learn from each other and adapt their measures flexibly. The idea that we need uniform rules for schools, kindergartens, businesses and shops as well as uniform hygiene and distance regulations to control the normalization of life is naive. Decisions adapted to regional and local circumstances are now necessary. But at the same time, governments must avoid an uncontrolled process of ”normalization” of social life, and the federal and state governments must constantly exchange their experiences and assessments. This is exactly what characterizes good coordinated governance in federalism.
It also makes sense that the federal and state governments continue to coordinate their policies simply because they have to make difficult decisions by taking into account conflicting concerns. Together, they can better defend themselves against the growing pressure from various stakeholders. In addition, the cooperation also ensures that representatives of almost all parties represented in the parliaments are involved, not formally through parliamentary resolutions, but informally through information and advice.
HSS: What changes in the relationship between the federal government and the federal states result from the expansion and adaptation of the Infection Protection Act, which came into force on March 28? From your point of view, how will the amendment affect the federal-state power structure?
The legislative amendment contains authorizations for ordinances for the Federal Minister of Health, which he can exercise without the consent of the Federal Council. They relate to national measures and therefore do not seem to change the relationship between the federal government and the federal states permanently. However, one should wait and see what decisions will be made in a year, when the report required by law is submitted to the Federal Parliament and Federal Council. It should contain suggestions on the "legal, infrastructural and personnel strengthening of the Robert Koch Institute (RKI) and, if necessary, additional authorities". In a year, federal and state governments presumably have to negotiate about the financial burden of the crisis. The federal states would be wise if they did not enter into a bargain with the federal government, like they did in the negotiations on the last financial equalization reform, in which they swapped administrative competences for financial concessions.
HSS: What lessons can be drawn from the corona crisis for future federal-state coordination in the event of an epidemic?
One should not hastily call for federalism reforms, but first analyse the particular problems and the causes of these problems. Perhaps one should have closed schools earlier and banned major events earlier, but if this is the case (hindsight is easier than foresight), one would have to ask why this did not happen. Appropriate preventive measures could perhaps have prevented the shortage of protective clothing for medical personnel and respiratory masks. 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 a close link between the federal and state governments, while dual federalism, such as in India or the United States, is based on a division of competencies and the distinct statehood of its member states. Which model is more effective in the Corona crisis?
The comparison of cooperative and dual federalism easily leads to misunderstandings. In each federation, powers are divided between levels of government, but not clearly separated from one another. The German Basic Law divides competences in a manner more precise than do the corresponding regulations in other federal constitutions. However, tasks always span across the boundaries of jurisdictions. For this reason, with the expansion of public tasks in all states, intergovernmental relations between the federal government and the member states have developed, and everywhere one speaks of cooperative federalism or “shared powers”.
Federalism models differ less as to whether the federal and member state policies are separated or interlinked, but rather according to the way in which tasks between the federal government and the member states are coordinated and under what conditions they are coordinated. They combine different modes of intergovernmental coordination with parliamentary or non-parliamentary forms of democracy. Coordination can be mandatory or voluntary, they can be achieved through the participation of the member states in federal politics or the federal government in the politics of the member states, and through negotiations or mutual adjustment in competition.
In Germany, mandatory cooperation between the federal and state governments predominates, so that both sides must agree. This takes place on the condition of a parliamentary democracy in the federal government and in the federal states, which is why the governments are held accountable for the results of the cooperation in their parliaments towards different coalitions. In other federations with parliamentary systems of government, compulsory agreements on common tasks is avoided and it is accepted that individual member states go their own way. Or, more so than in Germany, permission to deviate from uniform policies is allowed for experimental politics.
In the Corona crisis, as far as I can tell, there are no significant differences in the performance of governments if you compare these two models of federations. In this case, even the German federal government and the states cooperate voluntarily and only coordinate what was necessary, leaving the states room for manoeuver. So far, the policy variation among federal states remained small, especially since all political parties have so far accepted the measures taken. Of course, that can change. But the art of politics in a federal democracy is to find a healthy middle ground between autonomy and coordination.
HSS: American federalism has not presented a sound picture in this crisis so far: The conflict between President Trump and the country's governors is escalating and recently the governor of New York, Andrew Cuomo, complained that the U.S. states competed among themselves for the essential infrastructure such as ventilators. How can this dysfunctional dynamic can be explained?
This dynamic is inherent in the American government system and it is indeed dysfunctional. In the federal democracy of the U.S., the heads of government (president or governors) and the legislative bodies have to agree on political decisions. Moreover, the responsibilities of the states and of the federal government overlap, which also creates conflicts and a need for coordination. The founding fathers constructed this system because they wanted to limit state power and secure the freedom of citizens. The result is that governance can only succeed through negotiations.
Now, a two-party system has formed in the United States because all elected offices are assigned by majority vote. Until the 20th century, the two dominant parties constituted loosely organized and decentralized associations, which is why elected politicians were able to agree in informal negotiations without being subject to party discipline or party programs. Meanwhile, the parties have formed national organizations and a strong polarization has developed between the Democrats and the Republicans. The confrontation appears between the presidents and majority groups in one or both chambers of the congress, but also between the federal and state governments. Under President Trump, this confrontation has intensified, but it has evolved since the 1990s, at least.
If we had such a political party confrontation in Germany, the governmental system would have been in a complete deadlock long ago. That this is not to be observed in the U.S. is due to the fact that the president often governs by “executive orders” (i.e. eliminates the congress) and that the States use their concurrent powers to pursue a different policy than the federal government. For example, the New York governor was able to take action to curb the Corona virus when the president said it didn't need to, and this is why Trump had to quickly give up his omnipotence demand against the States. But governments also compete for resources or political recognition, which prevents coordinated action. The confrontation between federal and state parties and governments was also the reason of deficits in the healthcare system, which particularly affect poor people in the United States.
HSS: In a global comparison between federally organized and unitary states: Does this show a pattern of which type is more capable of acting in the corona crisis or are other factors (e.g. health system capacities, previous experience in the area of pandemic control etc.) decisive, from your point of view?
Many believe that in a crisis, the decisions can be made faster in a unitary state than in a federation. But quick decisions can also be wrong. The key success factors for governance in the corona crisis have yet to be researched. So far, we lack the necessary data and information for such a comparison. The current figures on infected or deceased persons show a trend over time, but they are not comparable between countries and do not say anything about the success or failure of policies.
Disaster management studies do not suggest that concentration of power is beneficial. Real crisis management takes place to a considerable extent in cities, municipalities, districts or regions. In pandemics, the capacity of a health system is of course crucial. Comparative studies provide no evidence that these capacities are more likely provided in unitary than in federal states, or vice versa. The relationship between state organization (state versus unitary state) and health policy is highly complex. Furthermore, the simple distinction between the unitary state and the federal state has not proven to be meaningful because it conceals varieties of both state organizations.
However, we know that global problems such as climate change, the influx of refugees, economic crises, but also the current pandemic, have at the same time local causes and global effects, and that the global effects impact in a very different way on localities. Politicians must therefore react to complex, interdependent and dynamic developments, and they can do this better if they are organized accordingly. These theoretical considerations speak for the superiority of a federal organization because it allows both autonomous decisions at different levels and the coordination of these decisions. This is why we 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, which was criticized in the Corona crisis as clumsy and unable to act. Why is supranational coordination so difficult, even though effectively fighting the pandemic is in the best interests of all member states?
Supranational coordination has worked in Europe through emulation, because every state has responded to the impending disaster with similar measures. This also, and correctly, included restricting movement across borders. Decisions by the Member States certainly achieved this faster than a pan-European decision. The Commission, on the other hand, very quickly lifted the rules on state aid control and debt limitation to allow states to give grants to businesses.
The fact that the discussion about fiscal policy instruments to overcome economic consequences of the pandemic is so difficult, is due to varying distribution interests of the member states. When it comes to money, national budgets are affected, and then national parliaments have their say. The proposals currently being put forward by the EU Commission have not only enormous quantitative dimensions, but also long-term effects. One has to discuss this critically without ignoring the fact that the expected recession and the costs of the pandemic affect the Member States differently and the financial strength of the states is unequal. In the EU, there is also the question of burden sharing, which is even more difficult to solve here than in the German federal state.
The question that needs to be discussed about Europe is what needs to be coordinated at this level. That the European Commission thinks it has to present a roadmap for exiting the contact restrictions is, to my mind, rather harmful because this cannot be decided across Europe. It would make more sense for the Commission to develop a long-term strategy on how to get out of the economic crisis caused by the shutdown without throwing overboard all climate and social policy goals. This would require European coordination.
HSS: Prof. Benz, thank you very much for talking to us.
The interview was conducted by Dr. Sarah Schmid, HSS