Introduction

The Federal Republic of Germany celebrated its fortieth anniversaryin May 1989. In spite of the devastation brought by World WarII, the division of the country between East and West, and theloss of one-fourth of its territory, the Bonn Republic was foundedunder more propitious circumstances than was its democraticpredecessa after World War I, the Weimar Republic. Togetherwith an "economic miracle" that brought about economic growthand a high standard of living. West Germany experienced a "politicalmirracle" that led to governmental stability and a system asdemocratic as any other in Europe. Federalism has contributedto this miracle, and, in contrast to the nineteenth century,is now identified closely with democracy in Germany. The articlescontained in this volume provide a broad overview of postwarfederalism in Germany, from its origins, organization, strengths,and weaknesses, to interpretations and assessments of currenttrends and developments.     

The new constitutions of east Germany

The restoration of the Lander in the former GDR in 1990 and the unification of Berlin called for a round of constitution drafting in the east that resulted in considerable discussion and controversy within the attentive public and, especially, among legal scholars in all of Germany. Controversy focused on two general issues: direct democracy and certain constitutional provisions such as social rights and state goals. Direct democracy is nothing new for the Länder, since most West German Land constitutions provided for referenda long before the Wall collapsed. But the three‐step process adopted in the east, and in particular the relatively low signature requirements for initiatives and petitions, both of which were in fact first introduced by Schleswig‐Holstein in 1990, did not meet with universal approval. Even more controversial were certain provisions in the Land constititions, for example, Brandenburg, that probably violate the Basic Law, and a number of unenforceable social rights and state goals that raise questions about feasibility and false expectations. This leaves us with questions about just how different from their western counterparts the constitutions in the new Lander really are and whether, given the relatively weak position of the Lander in the policy‐making process in the German federal system and the EU, their constitutional provisions matter that much.     

Forty Years of German Federalism: Past Trends and New Developments

This article traces the major developments in German federalismfrom 1949 to the present. From a system based on a concept of"dual federalism," which was different in important ways fromthe American system, German federalism became somewhat morelike the postwar American cooperative federalism. Criticismof this system in the 1970s led to various reform efforts, whichmade little headway until the 1980s and the formation of a CDU/CSU-FDPcoalition government under Chancellor Helmut Kohl. The "turnabout"promised by this government and carried out to some extent includedplans and policies to strengthen the Länder by some sortingout of functions. These efforts were successful at first, butthe federal government has oriented its policies more towardthe national arena. Financial constraints, the nationalizationof basic rights, technological concerns, and pressures by theEC have led to new tendencies toward intergovernmentalizingand centralizing the relations between the federation and Landgovernments.     

Constitutional Law and the Protection of Subnational Governments in the United States and West Germany

In Garcia v. San Antonio Metropolitan Transit Authority (1985),the U.S. Supreme Court concluded in a 5–4 decision thatthe Tenth Amendment does not protect state and local governmentsfrom federal intervention into their "traditional governmentfunctions." The Court majority insisted instead that the protectionof state and local functions lies in the political process and,thus, reversed the previous majority decision in National Leagueof Cities v. Usery (1976). Constitutional provisions in WestGermany grant the states a general protection rather comparableto the Tenth Amendment. These provisions also give explicitprotection to local governments. In spite of the apparent differencesthat suggest greater legal protection for their autonomy, Germanstates and local governments are now sharing most of their protectedfunctions with the federal government in a complex system ofintergovernmental relations. The Federal Constitutional Courthas allowed numerous federal and/or state incursions in localgovernment decisionmaking based on considerations of the commongood.     

German Federalism After Unification: The Legal/Constitutional Response

The collapse of communism in East Germany and the resultingGerman unification produced a new focus on the operation offederalism in a unified Germany and on certain reforms concerningfiscal federalism and various constitutional amendments. Theinitial decisions about financing the new Länder in theEast soon proved to be inadequate, and after much controversya new "solidarity pact" was concluded between the federal andLand governments in March 1993. To counter recent trends towardincreasing centralization, a constitutional commission proposeda number of amendments, now under consideration by the federalparliament, which would strengthen the Länder vis-à-visthe federal government. The Länder have also been concernedabout the growing interference by Brussels in their affairs.As a result of recent changes in the Basic Law, they have strengthenedtheir position in relationship to the federal government andthe European Union.     

The New German party finance law

In 1992 the Federal Constitutional Court decided for the sixth time since 1949 that the German legislation concerning political finance was unconstitutional. While the first five cases were important milestones in the development of German law on the public funding of parties and campaigns, this decision was notable for its rejection of key provisions of two laws that were passed in the 1980s and for overturning the Court's previous ban on direct aid to the parties. A commission of experts was formed to study and recommend changes, and a new law was passed by the Bundestag and Bundesrat in November and December 1993. Instead of focusing on reimbursements of parties for their campaign expenditures, the new law provides for direct financing of parties based on one DM for each vote in EU, national, and Land elections and DM .50 for each D‐Mark received in party dues and donations up to DM 6,000 per person (12,000 per couple). For the first five million votes, the parties receive DM 1.30 per vote. To encourage citizen involvement, parties are not to receive more than the sum of all of their own source revenues, and the total support for all parties is not to exceed the DM 230 million (adjusted for inflation) that was given to the parties as reimbursements for campaign expenditures in the period 1989–1992. To those who have followed the controversies over German political financing since the 1950s, it will be no surprise to learn that the new legislation has provoked criticism and sparked plans to bring the new law before the Federal Constitutional Court.