Chapter IV · PARLIAMENTARY GOVERNMENT (continued 2)

Another consequence is, that not only the Ministries are not homogeneous, which is the necessary consequence of the fact that no party has a majority in the Reichstag, but also they are heterogeneous in a fixed and invariable manner. To constitute a Cabinet there must be observed a triple rule. First, Ministers must be taken from the various political parties that enter the Cabinet; those individuals who are not members of the Reichstag being chosen from among the members of the party represented in the National Assembly. Secondly, each party has the right to a number of Ministers proportional to the number of its members in the Reichstag. The only exception to this rule is that the number of members in a Cabinet belonging to the same party must remain the same as in the just discarded Ministry; and if a Minister is withdrawn, the party to which he belongs designates his successor. If because of special circumstances another political group is called upon to fill the vacancy, this group in return as compensation to the other group cedes one of the ministerial seats held by it. Thirdly, the composition of a Ministry must remain unchanged for the whole session of the legislature.

The first Ministry constituted after the meeting of the Constituent Assembly in February, 1919, consisted of Scheidemann, its President, eleven members as department chiefs and three Ministers without portfolio. The parties that assumed government in coalition were, the Social Democrats, who had 163 members in the Assembly, the Democrats with 74 members, and the Centre with 89. The Social Democrats had exactly as many as the other two groups combined. In the Cabinet of fourteen members, therefore, they had seven seats, among them that of the President. The other seats were distributed, four to the Democrats and three to the Centre. During the entire period of the Constituent Assembly—with the exception of three months of the Summer of 1919, when the Democrats, who did not want to sign the treaty of peace, remained voluntarily aloof—the Ministry and the Ministers could change, but the composition of the Ministry rested practically identical. The last Cabinet formed under this Assembly, that of Hermann Müller, comprised at the time of its constitution, March, 1920, eleven Ministers, of whom one was without portfolio. And it was understood that it would later be completed by the addition of three other Ministers then not yet designated. Among the eleven members at first, there were five Social Democrats, three Democrats and three members of the Centre. As for the first Ministry constituted after the elections of 1920, that consisted of five members of the Centre, among them Fehrenbach, three members of the People’s Party and two Democrats; which corresponded approximately to the respective strengths of the groups in the Reichstag, viz., 68, 62, 45 members.[45]

Generally the number of Ministers is variable. Instead of having a fixed number of departments corresponding to a rational distribution of affairs, there are created or abolished Ministries according to the needs that have to be met to satisfy the demands of this or that political group. The Scheidemann Ministry had a Minister of Finance. But the Bauer, Hermann Müller, and the Fehrenbach Ministries had, in addition to a Minister of Finance, also a Minister of the Treasury. On the other hand, there was in the Scheidemann Cabinet a Minister of Economy, Wissel, and a Minister of Food Supply, Robert Schmidt. These two Ministers kept their portfolios in Bauer’s Cabinet formed in June, 1919. Then dissensions arising between Wissel and the other members of the Cabinet, Wissel resigned. But he was not replaced and the two Cabinet posts were made one. They were again made two, however, and provided with distinct titles in the Cabinets of Hermann Müller and Fehrenbach. A similar situation exists in the case of Ministers without portfolio, whose number, when there are any, is variable.

Sometimes in spite of all possible negotiations and combinations the various groups necessary for a coalition commanding a majority cannot arrive at an agreement. As a government must nevertheless be finally constituted, this or that group, which has refused to enter into the combination, promises nevertheless either its support or its neutrality to those who have had the imprudence to participate in the Cabinet. When the Fehrenbach Cabinet was constituted it could only count on the vote of the groups represented in it and, therefore, commanded only 200 votes in an Assembly of 466 members. But the Social Democrats promised not to overthrow the Ministry until the new elections. The consequence of this is that a Cabinet so placed is really not its own master, and this one had to yield to a certain degree to the injunctions of the Social Democrats. But on the other hand the latter, although they had refused to enter the combination, were indirectly responsible for the acts of the Ministry so long as they tolerated them in power.

When the necessary agreements are concluded, the Ministry appears before the Reichstag. It reads its declaration and programme and a grand political discussion commences. But the programme having been in advance submitted to the groups, sometimes even corrected and redrawn at inter-group meetings, the Ministry is sure of a majority and the discourses are only manifestos by which each party explains why it is for or against the Ministry.

(2) Parliamentary government, in practice, may take one of two different forms: government by the Cabinet or government by the Assembly. In a government by a Cabinet, it is the Council of Ministers that governs and it is they who give the direction of general policy. It is the guide and the superior of the Assembly whose confidence supports it. On the other hand, one calls it government by the Assembly when the Ministry is limited to executing the decisions of the Parliament and to following the initiative of the latter.

In Germany, while it cannot be said that the Reichstag exercises considerable authority over them, it seems that the Ministers take little initiative and that they content themselves most often with following the direction given them by the Assembly. It is the agreement that prevailed at the formation of the Cabinet that continues as a policy. The Ministers are either the presidents of the respective political groups, or else have been nominated by these groups. How, therefore, can they be completely independent? There are here some factors analogous to what one called in France “the bloc of the Left” under Minister Combes. All the important measures are first discussed between the government and the groups and the Ministry does not act except in agreement with the groups of the majority. Instead of placing itself at the head of the majority and assuming the responsibility for the measures which it feels necessary to take, the Cabinet comes to an understanding with it. Perhaps it cannot be said that it follows the directions given it by the majority. But it does not act, in any event, unless it is first assured of the majority’s support. Perhaps, also, in the critical circumstances which Germany is traversing and given the manner in which its groups are organized, it is impossible to do otherwise. The head of a Cabinet appointed by the chief of the executive power on a programme given him for the realization of this programme, may act with independence, if this programme creates its own majority. Even if it cannot command a stable majority, it can lean on some of the minority groups and, according to circumstances, may create different majorities. There are acts which no one can criticize and there are successes which nullify opposition. But such is not the case in Germany, where the Ministry has to abide by the contract which prevailed at its organization.

(3) The preceding remarks suffice to explain the following fact: since the establishment of the parliamentary régime in Germany no Ministry has ever been overturned by the Reichstag. How can it be, if it conforms to the condition of its agreement and if, before each hazardous decision, it assures itself the approval of the majority? On the other hand, if it cannot obtain this approval, or if it does not want to accept the policy desired by the majority groups, why should it go before the Assembly and engage in a battle lost in advance? It resigns.

The Ministry, therefore, is never overthrown; it retreats, or more correctly, it does not retreat, but changes. The number of men available for a Ministry is very limited and the groups present almost always the same men. There is in advance a certain knowledge as to who the men are who will enter a Cabinet as soon as one knows what groups will participate in the formation. Further, the possibilities of combinations within a given Chamber are limited enough. From the beginning of February, 1919, only four groups have participated in power, of these the People’s Party participated only after June, 1920. It is inevitable, therefore, that in each new combination there remain at least two groups which already belonged to the preceding one. Quite naturally these groups leave, without exception, the same men in power. Why change? An important part of the preceding Ministry, therefore, is maintained in each new Ministry.

In June, 1919, Scheidemann’s Cabinet, which consisted of Social Democrats, Democrats and members of the Centre, was replaced by Bauer’s Cabinet, in which only the Centre and the Social Democrats entered. The members of these two groups which were in the Scheidemann Cabinet remained in the Bauer Cabinet and it was sufficient to replace with members of these two groups the vacancies left by Scheidemann and the Democrats. In March, 1920, Bauer’s Cabinet, into which the Democrats entered in October, 1919, attempted a new change after the coup d’état of Kapp. Conferences took place, in which took part the President of the Reich, the Ministers and representatives of parties, in which was discussed the question as to which Ministers should remain and which must go.

The more the discussion was prolonged, the greater grew the number of Ministers to remain. But the unions intervened and demanded the resignation of the whole Cabinet. Bauer acceded. Nevertheless the Cabinet, which was thereupon constituted by Hermann Müller, retained several members of the preceding Cabinet, notably Hermann Müller himself, who from Minister of Foreign Affairs became Chancellor, and Bauer, who from Chancellor became Minister of the Treasury. The same procedure took place in the constitution of the Fehrenbach Cabinet. It was expected that a Ministry coming after elections that expressed a considerable change in the political situation, and after the Social Democrats withdrew from power and the People’s Party arrived, would translate this change by a more profound modification than usual of the Cabinet. But out of thirteen members five had been members of the preceding Cabinet.

It does not seem, therefore, that the attempt made by the Constitution to regulate as precisely as it may be done the functioning of the government of the Cabinet has had up to now any appreciable effect on the practice of parliamentarism. Germany begins at a point that other countries, in which parliamentary government has operated for years, have hardly attained, if they have at all attained it. A concentrated Cabinet, a Cabinet of republican defence, a Cabinet of transition, a bloc of the Centre—are these accidental deformities of the parliamentary régime, or are they forms toward which it must necessarily tend? We are told in Germany that these practices, obviously little compatible with the conception of parliamentarism or with the regulations provided in their Constitution, are to be explained by the state of revolution in which the country still finds itself; and that they will disappear if some day Germany recovers its equilibrium, and make place for a correct and complete application of constitutional rule.

SECTION IV THE REICHSRAT

The Reichsrat is placed by the Constitution by the side of the Reichstag, the President and the Cabinet, and has as its rôle the representation, after these, of the States of the Reich in legislative and administrative matters.

1.—GENERAL FEATURES OF THE REICHSRAT.

The Reichsrat constitutes a bond of co-operation between the Reich and the States. Whereas the will of the whole German people taken together is manifested through the Reichstag, the Reichsrat translates the will of the States, such as it is conceived by the governments or cabinets of these States.

The Reichsrat is the representative in the Reich of the federalist principle. It is the federalist organ of the Reich. In this rôle it joins the unitary organs and completes them.

The Reichsrat is the successor of the Commission of States of the Provisional Constitution and of the Bundesrat of the old Constitution. But as the unitary idea made important progress, the Reichstag was endowed with powers considerably less extensive than those of the Bundesrat. The latter, which represented the confederated governments collectively, was the holder of sovereignty under the Empire. The Reichsrat, on the other hand, since the new Constitution placed sovereignty in the German people, is only an organ by which the governments of the states participate in the legislative and administrative powers of the Reich. Instead of being endowed, as compared to the Reichstag, with powers equal or superior to it, as the former Bundesrat was, it has received but very limited rights.

The question whether it would not have been better to organize instead of the Reichsrat a Chamber of States, which would represent, not the various cabinets, but the populations of the states, was vigorously debated. It may be recalled that it was this solution Preuss proposed: a Chamber of States composed of delegates of German republics. These delegates would be elected by the Diets of the republics and would be selected from among the citizens of these republics. In principle, each state would have a delegate for each million inhabitants.

Such an organism would constitute a very characteristic application of the centralist idea. But it was thought that this would create, by the side of the Reichstag, a new popular representation, and that this would not take into account the necessity of organizing a representation of states. What was needed actually was the creation of an organ, within which would be realized an equilibrium between the voices and the needs of the Reich on the one hand and the voices and the needs of the states on the other; if it was not wished to suppress completely the federal structure of the Reich and make of it simply a unitary state. This organism would have to include technical and vocational representatives of the interests of the states, leaving aside the idea of parties and all the programmes of parties. That is to say, there would have to be representatives of the governments of the states, not merely political representatives. The National Assembly decided on a Reichsrat organized on the model of the former Bundesrat, representing the governments of the states and endowed with less extensive powers.

The Reichsrat differs profoundly as to authority from the old Bundesrat. It has lost completely the sovereign character of the Bundesrat. It has not even the right to issue administrative regulations, this right having been taken away from it and given to the Cabinet. It has ceased to be, in comparison with the Reichstag, a legislative organ invested with rights equal to those of the Reichstag; and it has no more than a very limited right to co-operate with it in legislative work.

This institution, therefore, comprehends both historic tradition and the actual situation of the Reich. But it marks at the same time a progress in the sense of a stronger unity of the Reich, and it should in the future facilitate a new development of the unitary idea.

2.—THE COMPOSITION AND THE FUNCTIONING OF THE REICHSRAT.

“In the National Council each State has at least one vote. In the case of the larger States one vote is accorded for every million inhabitants. Any excess equal at least to the population of the smallest State is reckoned as equivalent to a full million. No State shall be accredited with more than two-fifths of all votes.” (Article 61.)

The original proposal provided that three years after the Constitution had entered into effect, small States having less than a million inhabitants would lose their right to be represented in the Reichsrat. The obvious purpose of this provision was to compel, by indirect means, the small States to join together, as well as to prevent the unnecessary parcelling out of territories with the view of creating new States. This measure, however, was not accepted by the committee. We know that in its place the committee and the National Assembly accepted a resolution inviting the government to interpose in the hope of realizing a union of small States.[46]

An early distribution of seats, after the adoption of the Constitution, on the basis of Article 61, gave to Prussia twenty-five votes out of the total of sixty-three in the Reichsrat. But, as we know, after May, 1920, seven small states of Central Germany formed the State of Thuringia, which had 1,584,324 inhabitants and was entitled to two votes. By this the number of non-Prussian votes in the Reichsrat was reduced by five, which also diminished the number of votes coming from Prussia from its former twenty-five to twenty-two. So long as no new changes in the interior geographic configuration of the Reich are made, the distribution of votes in the Reichsrat will be as follows: Prussia, twenty-two; Bavaria, seven; Saxony, five; Wurtemberg, three; Baden, three; Hesse, two; Thuringia, two; other States, one each. Total, fifty-five.

The States are represented by members of their Cabinets. So it was under the old régime. There is, however, an essential difference, for the Cabinets now depend on the confidence in them of the Diets elected by universal suffrage. It is public opinion that governs in the States now and no longer the will of an autocratic government, independent of this opinion. The government of a state is responsible before the Diet for the manner in which its representatives exercise their mandates in the Reichsrat, whether the members of the Cabinet are themselves present there or whether they are represented by civil servants. The former provisions relating to instructions given by Cabinets of States to their plenipotentiaries in the Reichsrat, as well as measures to insure that the representatives of each state shall join in a common vote, have become useless and have not been incorporated into the Constitution.

The provision according to which the states are all represented by their Cabinets has been changed, however, in one respect. Article 63 specifies that only half of the Prussian votes will be at the disposal of the Prussian Cabinet, the other half being at the disposal of the Prussian provincial administrations. Thus the National Assembly, which has not had the force to effect directly a dismemberment of the Prussian state, and which has deferred for over two years every effort to be made toward this end, has nevertheless attempted to anticipate this reform. It seems in effect that if the Prussian provinces receive progressively more and more autonomy, if the powers granted to them become comparable to the more and more diminishing powers of the states, the assimilation of these provinces to states other than Prussia will be facilitated and hastened by the fact that these provinces, like states, are directly represented in the Reichsrat. Each of them will be able to defend its own particular interest, different, perhaps, from those of other provinces. Each province, above all, will be able to defend its rights and make its interests prevail when in conflict with those of the Prussian State, whose dominant centralization will thus be broken.

This solution is not entirely satisfactory, for the regrouping which must be proceeded to in the Reich must be inspired above all by social and economic considerations. And it must have as its aim the creation of an autonomous body capable of self-development and productivity. Above all in this work, the historic frontiers of the States must be disregarded since these frontiers have been drawn to satisfy dynastic interests or to conclude victorious wars. What is true of the interior of the Reich is also true of Prussia. The Prussian provinces are not natural organisms in whose interests there should be created and developed a political life.

Still, Article 63, for lack of other provision, constitutes progress, which, however, does not seem as yet to be near realization. This Article provides, in effect, that the manner in which Prussian votes at the disposal of the provinces shall be distributed must be regulated by a Prussian State Law; and Article 168 provides that until the adoption of this law but, at the most for only a year, all the Prussian votes in the Reichsrat may be cast by members of the State Cabinet. This law should already have been adopted and applied. This has not been done, however, and the Prussian government has asked and obtained a modification of Article 168, which prolongs the delay accorded to Prussia and gives it till July 1, 1921, to pass this law. In support of this request Prussia claimed that the reduction of its total number of votes in the Reichsrat to twenty-two made the distribution of this number among the provinces more difficult. In reality, however, the Prussian government under the Republic remains true to its traditional tactics, which consist in opposing all development and progress by means of the most obstinate passivity. Until the new state of representation is adopted the twenty-two Prussian votes will be cast by the members of the Prussian Cabinet or by delegates named by it.

The Reichsrat has the right to create its own committees.[47] But the privileges which certain states, particularly Prussia, enjoyed in the committees of the old Bundesrat are suppressed; particularly as no state may hereafter have more than one vote on any committee. (Article 62.) The Reichsrat, in contrast to the Reichstag, has not the right freely to convene. It must be convoked by the Cabinet of the Reich. Nevertheless, it has a right to convoke itself if the demand is made by a third of its members. It is the Cabinet that presides over the Reichsrat and its committees; but the Cabinet has not the right to vote in either of these. The Reichsrat has the right and the power to demand that the members of the Cabinet be present at its meetings or at the meetings of its committees. It may invite there the Chancellor and the Ministers and the latter are obliged to attend. Those invited have the right at all times to be heard in the deliberations. By this means the Reichsrat has the possibility of participating in the policies of the Reich. It is true that no fixed influence is guaranteed to it by the Constitution. What authority it will be able to exercise in the future will depend on the quality of its work and on the personalities by which the states will be represented. The Cabinet of the Reich, like all the members of the Reichsrat, is authorized to propose measures in the Reichsrat. The plenary sessions of the latter, in contrast to those of the Bundesrat, are theoretically public; its committee meetings are not. Decisions are made by a simple majority of those voting.

3.—POWERS OF THE REICHSRAT.

The former Bundesrat was an organ which had in legislative matters the same rights as the Reichstag. It exercised in addition important executive functions; in particular it had the right to promulgate general administrative regulations for executing the laws of the Reich. It was the central administrative authority in matters relating to customs and taxes. It decided conflicts of a constitutional character as well as miscarriages of justice. Of all these powers few have descended to the Reichsrat. In order to emphasize the idea of the unity of the Reich and of the sovereignty of the whole German people in the Reich, the new Constitution limits to a considerable extent the powers of the Reichsrat. However, it has left it a certain right to participate in the making of laws and in the exercise of executive power.

In legislative matters, it will be recalled, that all proposals of laws on the part of the Cabinet must be presented at first to the Reichsrat; in theory, must be accepted by it before being submitted to the Reichstag. But as we know this consent is not indispensable and the government may disregard it. It will be recalled also that the Reichsrat has the right to protest against any law voted by the Reichstag; but that it may have its protest disregarded under certain conditions.

Already the Reichsrat has made use of its right of protest. That was done in connection with a bill that raised postal taxes. The National Assembly, acting in the character of the Reichstag, had voted a provision according to the terms of which the sending by mail of official documents would have to be paid for, no longer by him who received them, but by the sender. The representatives of Prussia, Bavaria and of Saxony criticized in the Reichsrat this measure, and found support in the Assembly to the extent of a majority of thirty-eight votes. Whereupon the Reichsrat raised a protest against this measure, April 29, 1920. The bill then returned to the National Assembly; but the conflict ended with a compromise, without recourse to the procedure provided by the Constitution for such a case.

The Reichsrat still possesses some executive powers. On the one hand, the Constitution and the law frequently stipulate that a regulation by the Cabinet of the Reich must be authorized by the Reichsrat. On the other hand, the law of April 17, 1919, “for a simplified form of legislation on economic matters” provides that regulations decreed by the Cabinet in this matter must be approved both by the Reichsrat and by a committee of twenty-eight members of the Assembly. The Reichsrat and the Committee have in this case absolutely equal rights. Finally Article 67 provides that the Reichsrat must be kept informed by the national departments of the conduct of national business.