Alvis 1

Bicameralism in Federal Systems: Three Different Approaches Shaun Alvis Professor Sanford Levinson Constitutional Design Seminar May 23, 2013

Alvis 2

I. Introduction Of the 162 sovereign nations that currently exist, 122 have a unicameral legislative body.1 The remaining 51 have bicameral legislatures, featuring second houses with varying power, composition, and prestige.2 Of those 51 bicameral legislatures, 23 are found in states that can be described as federal in nature.3 These second houses have increasingly been in the news over the last few years. Norway, in 2009, abolished its upper house-the Lagting-in favor of a unicameral system based on its former first house.4 In Italy, the Italian Senate was heavily in the news after the inability of a government that would have had a large majority in Italy's Chamber of Deputies to find a majority in the Senate led to a prolonged period of governmental instability.5 In the United Kingdom, there are continuing questions over the logic of a modern democratic state retaining a socalled House of Lords. While most parties in the U.K. House of Commons support reform of the Lords, opposition and division within the governing coalition prevented action on a recent bill.6 Abolition is on the minds of many in Canada, as its unelected and malapportioned Senate is gripped in the midst of its most serious scandal in decades and the government runs into problems over its effort at reform.7 In Germany, the Bundesratnow controlled by the opposition- has sought to draw distinctions with Angela Merkel

1 "Senates and the Theory of Bicameralism," in Senates: Bicameralism in the Contemporary World, ed. Samuel C. Patterson and Anthony Mughan (Columbus: Ohio State University Press, 1999), 2 2 id 3 "Forum of Federations - Federalism by Country," Forum of Federations - Federalism by Country, Accessed May 23, 2013, http://www.forumfed.org/en/federalism/federalismbycountry.php 4 Hkon Gundersson, "Ett Ting Mindre," Morgenbladet, April 17, 2009, accessed May 23, 2013, http://morgenbladet.no/samfunn/2009/ett_ting_mindre 5 Elisabetta Povoledo, "Italian Lawmakers Elect Speakers, but Stable Government Remains Elusive," The New York Times, March 17, 2013, accessed May 23, 2013, http://www.nytimes.com/2013/03/17/world/europe/italian-lawmakers-elect-speakers-but-stability-iselusive.html?_r=0 6 Nicholas Watt, "Rebel Tories Scupper Motion for House of Lords Reform Bill," The Guardian, July 10, 2012, accessed May 17, 2013, http://www.guardian.co.uk/politics/2012/jul/10/rebel-tories-motionlords-reform 7 Nick Taylor-Vaisey, "How to Abolish the Senate of Canada," Macleans, May 23, 2013, accessed May 23, 2013, http://www2.macleans.ca/2013/05/23/how-to-abolish-the-senate-of-canada/

Alvis 3 and the Christian Democratic Union ahead of upcoming elections.8 And finally in the United States the Senate remains a focal point in efforts to obstruct President Obama's agenda with reform of its archaic rules a strong desire for many activists and Senators.9 This paper will examine the history and development of the concept of the upper house broadly before turning to examine in detail three different upper houses: the American Senate, the German Bundestag, and the Canadian Senate by looking at their individual histories, composition, powers, and ways that each could be reformed. II. A brief history of bicameralism Legislative bodies of some sort have existed since pre-historic times. The Roman Republic for instance, featured at least 4 distinct legislative bodies throughout its history.1011 While the Roman Empire and its successor states broadly ignored and marginalized legislative bodies12 the rise of feudalism in medieval Europe saw the creation of many of the ancestral legislatures of modern Europe.13 These bodies often differed from the looser Roman legislative arrangement in that there were strict relations and rules set between the various bodies.14 Many though were not bi-cameral, instead they were multi-cameral bodies such as the tri-cameral Estates General of France (consisting of the First, Second, and Third Estates representing the clergy, nobility, and commoners respectively)15 and the tetra-cameral Riksdag of the
8 "Bundesrat Bringt Gesetzesentwurf Zur Homo-Ehe in Den Bundestag Ein," SPIEGEL ONLINE, March 22, 2013, accessed May 17, 2013, http://www.spiegel.de/politik/deutschland/bundesrat-bringtgesetzesentwurf-zur-homo-ehe-in-den-bundestag-ein-a-890415.html 9 Sarah Binder, "Banning Filibusters: Is Nuclear Winter Coming to the Senate This Summer?," The Brookings Institution, May 23, 2013, accessed May 23, 2013, http://www.brookings.edu/research/opinions/2013/05/23-reid-nuclear-senate-ban-filibuster-binder 10 Klaus Bringmann, A History of the Roman Republic (Cambridge, UK: Polity, 2007), 14, 45, 5, 8. 11 The Roman Senate, the comitia curiata, the comitia tributa, and the comitia centuriata. 12 P. A. Brunt, "The Role of the Senate in the Augustan Regime," The Classical Quarterly 34, no. 02 (1984): 423, http://www.jstor.org/stable/638300 13 And in some cases the actual legislature. Iceland's Althing for example has existed in some form since 930. (http://articles.latimes.com/2011/apr/02/world/la-fg-iceland-free-speech-20110403) The Manx Tynwald has met continuously as a parliamentary body since approximately the 13th century. (http://www.tynwald.org.im/Pages/default.aspx) 14 Senates, 2 15 William Doyle, "The Estates General," in The Oxford History of the French Revolution (Oxford: Oxford University Press, 2002), 86-112.

Alvis 4 Estates of Sweden (consisting of chambers for the nobility, clergy, city dwellers, and peasants).16 However it was the bi-cameral English Parliament with its House of Lords and Communes (later transformed into Commons) that would have the most influence on the development of legislatures worldwide.17 The development of bi-cameralism in the English Parliament was actually something of a historical accident.18 Originally the clergy was meant, as in other medieval Parliaments to have their own separate House.19 But for unknown reasons the lower part of the clergy withdrew from parliamentary representation, leaving the only the upper clergy who began setting with the other members of the nobility to form what would become the House of Lords.2021 Historically the House of Lords was the more powerful of the two Houses.22 However this began to change in the 18th century with the House of Commons assuming ever more power until in 1912 the Parliament Act essentially recognized the ability of the House of Commons to pass legislation over the objection of the Lords in certain circumstances.23 One of the daughter Parliaments of the United Kingdom, the American Congress, was created at a point when the House of Lords and House of Commons were equal in power. And the Houses of Congress continue to reflect that balance. III. A brief history of the pre-XVIIth Amendment Senate After the British House of Lords perhaps no other upper house has been as influential on the development of legislatures as the United States Senate. The U.S.
16 "The History of the Riksdag," Sveriges Riksdag, March 29, 2012, accessed May 23, 2013, http://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/The-history-of-the-Riksdag/ 17 Senates, 3 18 id 19 Chris Given-Wilson, "The House of Lords, 1307-1529," in A Short History of Parliament: England, Great Britain, the United Kingdom, Ireland and Scotland, by Clyve Jones (Woodbridge, UK: Boydell Press, 2009), 16 20 id 21 Even today, 26 bishops of the Church of England retain a seat and vote in the House of Lords. See http://www.bbc.co.uk/news/uk-politics-16702806 22 Senates, 16 23 "The Parliament Acts," UK Parliament, accessed May 23, 2013, http://www.parliament.uk/about/how/laws/parliamentacts/

Alvis 5 Senate was perhaps the first upper house developed with a supposed primary purpose of reflecting the role of geographic constituent units within a governmental polity rather than a group of people.24 However even though the Senate's supposed primary purpose was to be a body that formed a convenient link25 between the state and federal system, some of the traditional elitism from the House of Lords crept through.26 The Senate also had a massive influence on the development of state legislatures in the United States. Of the 50 state legislative bodies, only Nebraska has a unicameral legislature.27 The Senate's power and influence have helped to deeply engrain the idea of bicameralism into the American psyche.28 This was not always the case. Under the Articles of Confederation the U.S. Operated under a unicameral legislature comprised of members appointed by state legislatures.29 Each state could send between two and seven members to the Congress of the Confederation but each delegation had only one vote in Congress.30 Furthermore State's had the ability to recall members of the delegation for any reason and to replace them with others.31 This arrangement reflected the fact that there was no real national government as such. Instead the states were supreme and what exceptionally limited national government did exist was constituted solely by the 13 states.32 After several years of relatively ineffective government under the Articles, many in the United States began thinking about reform.33
24 Barbara Sinclair, "Coequal Partner: The U.S. Senate," in Senates: Bicameralism in the Contemporary World, ed. Samuel C. Patterson and Anthony Mughan (Columbus: Ohio State University Press, 1999), 34 25 The Federalist No. 62 26 Sinclair, 34 27 Sanford Levinson, Framed: America's Fifty-one Constitutions and the Crisis of Governance (Oxford: Oxford University Press, 2012), 100 28 Levinson, 135 29 John Altman, "The Articles and the Constitution: Similar in Nature, Different in Design," Pennsylvania Legacies 3, no. 1 (May 2003): http://www.jstor.org/stable/27764871, 21 30 United States, Articles of Confederation (1781), accessed May 24, 2013, http://avalon.law.yale.edu/18th_century/artconf.asp 31 Christopher Collier and James Collier, Decision in Philadelphia: The Constitutional Convention of 1787 (New York: Ballantine Books, 2007), 5 32 Altman, 20 33 Collier, 6

Alvis 6 At the Constitutional Convention that resulted from this reforming desire, one of the first and most protracted battles was over the nature of the new national legislature.34 There were two primary competing plans over the nature of this new legislature. The Virginia Plan, proposed by James Madison, would have created a bi-cameral legislature based on population.35 The upper house of this new legislature was to be elected by the lower house from candidates proposed by state legislatures, thus maintaining some semblance of state involvement in the upper house.36 The New Jersey Plan, proposed by William Patterson, would featured a unicameral legislature which would have essentially retained the unicameral Congress of the Confederation in structure but enhanced its powers.37 The small states rallied around the New Jersey Plan as a method of ensuring that the larger states could not dominate the new polity. Perhaps unsurprisingly the large states were equally invested in the Virginia Plan.38 After weeks of debate at the convention, a compromise was reached whereby a bi-cameral legislature with a lower House of Representatives apportioned by population and an upper Senate apportioned equally by state would be created.39 Madison and others were deeply frustrated by this compromise finding the idea of equal representation by state to be deeply offensive and counter to the supposed ideals of the rest of the Constitution.40 A voter in Delaware for instance had 11.5 times the power of a voter in Virginia, based on representation in the Senate.41 Today the voter in Wyoming has 70 times the power of a voter in California.42 However Madison defended the new Senate on the grounds of political expediency and felt that it
34 Collier, 119 35 Collier, 74 36 James Madison, "Variant Texts of the Virginia Plan," Avalon Project, accessed May 24, 2013, http://avalon.law.yale.edu/18th_century/vatexta.asp 37 William Patterson, "Variant Texts of the Plan Presented by William Patterson," Avalon Project, accessed May 24, 2013, http://avalon.law.yale.edu/18th_century/patexta.asp 38 Collier, 122 39 Collier, 174 40 Collier, 176 41 Levinson, 35 42 id

Alvis 7 would serve a role in linking the federal and state governments together.43 Other members of the Convention linked it more directly with the House of Lords.44 They felt that the differing eligibility requirements between Senate and House would ensure that the Senate would be composed of the better elements in society and that the Senate would have a tempering affect on the on the popular heat generated in the House of Representatives.45 The Senate which first met on April 6th, 1789 was composed of 20 members, two from each of the then 10 states which had ratified the new Constitution, selected by their state legislatures.46 Appointing members by state legislature had not been an especially controversial part of the development of the Senate, indeed only one member of the Constitutional Convention, James Wilson, favored popular election of Senators.47 However for the most part, people were happy with state legislative selection.48 It was viewed as a key way to maintain a link between the federal and state governments.49 Furthermore the early era represented perhaps the high point of the Senate in terms of American historical lore, Senators like John C. Calhoun, Daniel Webster, and Henry Clay cultivated the image of the Senate as a place of intelligent debate and compromise.50 The Senate of this period was perhaps viewed in the sense that it was created for, a place where different states could come together and calmly and intelligently work out their interests. Beginning in the 1870s, calls began to appear for the direct election of Senator.51 Perhaps one potential explanation can be constructed by viewing the changing situation in American politics post-Civil War. The House of Representatives was at the forefront of
43 The Federalist #62 44 Todd J. Zywicki, Beyond the Shell and Husk of History: The History of the Seventeenth Amendment and Its Implications for Current Reform Proposals, 45 Clev. St. L. Rev. 165 at 180 (1997) 45 id 46 United States, Senate, Journal of the Senate of the United States of America, vol. 1 (New York, 1789), 7, accessed May 24, 2013, http://memory.loc.gov/cgi-bin/ampage?collId=llsj 47 Todd J. Zywicki, Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment, 73 Or. L. Rev. 1007, 1013 (1994) 48 id at 1014 49 id at 1015 50 Sinclair, 35 51 45 Clev. St. L. Rev. at 185

Alvis 8 American political power, surpassing even the President.52 In the aftermath of such a violent conflict and the rejection of slavery by Radical Republicans the compromises of the pre-War era looked quite different.53 The Senate of the post-War era also began to be dominated by the powerful monied interests that arose during the American Industrial Revolution and the Gilded Age.54 Senators in this period were often viewed as either the pawns of the rising class of industrial robber barons or were counted amongst the robber barons themselves.55 Because of this perception the so called muck racking journalists were often brutal in their depictions of a Senate they felt was controlled by men like John D. Rockefeller.56 This increasing perception of the Senate as a tool of corrupt politicians and major financial interests revived and strengthened the calls for popular election of Senators.57 Many states had already implemented some form of popular preference election prior to the XVIIth Amendment.58 The most common method was to simply hold state legislative elections alongside Senate elections, with candidates for the state legislature running alongside the men they would proceed to vote into the Senate after the election.59 This method in fact was the immediate catalyst for the famous Lincoln-Douglas debates.60 Oregon had gone even further, holding an election for Senator and legally requiring the legislature to vote for the winning candidate.61 This meant that by the time of the XVIIth Amendment, the link between Senate and state legislature was already quite attenuated. IV. The Modern Senate
52 Robert Remini, The House: The History of the House of Representatives (New York: Smithsonian Books in Association with HarperCollins, 2007), 254 53 Hans L. Trefousse, Thaddeus Stevens: Nineteenth-century Egalitarian (Chapel Hill: University of North Carolina Press, 1997), 79 54 45 Clev. St. L. Rev. at 185 55 Bosses of the Senate," NBC News, New York, NY: NBC Universal, 10/14/2007, Accessed 24 May 2013: https://archives.nbclearn.com/portal/site/k-12/browse/?cuecard=798 56 id 57 45 Clev. St. L. Rev at 186 58 id at 190-191 59 Sinclair, 37 60 id 61 45 Clev. St. L. Rev at 191

Alvis 9 Historians and political scientists often like to draw a line when dealing with the Senate dividing it into pre and post XVIIth Amendment forms. This however is a bit disingenuous. The XVIIIth Amendment as indicated supra, did little at the time to fundamentally alter the makeup of the Senate, indeed many members serving at the time of the amendment went on to be elected afterwards.62 Instead a far more powerful influence on the modern Senate and Senator has been the development of the modern mass media.63 Senators given that they (typically) represent a much larger area and population than a member of the House of Representatives and their longer terms have helped to give the average Senator a much higher profile than the average member of the House.64 The Senate is also increasingly viewed as a training ground for potential Presidents.65 For instance many of the most commonly mentioned potential candidates for the Republican Presidential nomination in 2016 are current Senators.66 And in the past four presidential elections 6 of the 15 candidates (excluding sitting presidents and vicepresidents) were Senators.67 This is likely due to the increased media attention they already receive and their proven success at winning statewide election.68 It actually contrasts with past history when Senators where not considered particularly electable.69 This was perhaps due to the fact that Senators prior to the advent of televised mass media were often primarily focused on extremely narrow areas of policy, typically that of their primary committee or of particular importance to their state.70 This was in many ways the product of a combination of an increased reliance on the committee

62 63 64 65 66 67 68 69 70

id at 189 Sinclair, 38 Sinclair, 44-45 Timothy O'Neill, "The Senate Is No Steppingstone," Chicago Tribune, February 04, 2007, accessed May 24, 2013, http://articles.chicagotribune.com/2007-02-04/news/0702040491_1_senate-john-mccainsen-john-edward Manu Raju, "Rand Paul, Marco Rubio Face 2016 Bind," POLITICO, May 7, 2013, accessed May 24, 2013, http://www.politico.com/story/2013/05/rand-paul-marco-rubio-2016-bind-90987.html Barack Obama, Joe Biden, John McCain, John Kerry, John Edwards, and Joe Lieberman Sinclair, 38 O'Neill Sinclair, 43-44

Alvis 10 system and the growing importance of the seniority system after the XVIIth amendment.71 The unique rules and institutional structures of the Senate have created a body where individual members have immense power.72 The Senate's rules, developed in an era where gentlemanly restraint and discretion reigned, created a system where unanimous consent was required for virtually any action.73 As such, even a single senator has immense power to disrupt or even halt the business of the Senate.74 This power, which is relatively less known and certainly less reported on than the filibuster, is typically referred to as the power to place holds.75 A hold backed by a substantial minority of the Senate can morph into a filibuster.76 It is the filibuster that is perhaps the most well known feature of the modern Senate rules. Originally the Senate had no mechanism for limiting debate (as did the House which instituted debate limiting rules in the 1850s.)77 That changed however during the debate over a proposal to arm merchant vessels during World War I.78 Wilson focused public attention on this so called small group of willful men and was able to force the Senate to adopt rules establishing the cloture system.79 Originally cloture required that 2/3rds of the membership of the Senate vote to end debate and in the first 60 years of its existence cloture was successfully invoked very rarely.80 For many years this system worked relatively efficiently, though Southern Senators were able to use the threat of withholding unanimous consent and filibusters to

71 72 73 74 75 76 77 78 79 80

Sinclair, 42 Sinclair, 32 Sinclair, 43, 46-47 Sinclair, 47 id Sinclair, 47 Sinclair, 35 Sinclair, 36 id Richard Sammon, "Putting Cloture in Perspective," www.kiplinger.com, September 8, 2009, accessed May 24, 2013, http://www.kiplinger.com/article/business/T043-C012-S001-putting-cloture-inperspective.html

Alvis 11 foreclose the possibility of effective civil rights legislation.81 Following the Civil Rights movement and an increasing view of obstruction of legislation by such a small minority of Senators led to a revision of the cloture requirement from 2/3rd to 3/5th of Senators.82 The revision of cloture came at a fortuitous time, the increasing uniformity of political parties and increasing sense of partisanship meant that the number of filibusters has increased rapidly.83 As such further reform of the filibuster is currently the most heavily discussed and debate aspect of the Senate's structure.84 In fact, some are saying that filibusters on Presidential nominations could be eliminated this summer given the current Republican Senatorial leadership's intransigence on them.85 V. The role of the Senate The history of then Senate then shows the often contradictory factors at work on and within it. It is now a popularly elected body that was originally meant to represent the will of the state governments in Washington. It's emphasis on member's individual power contrasts heavily with that of the House where individual members are far less powerful than the collective party leadership apparatus.86 The Senate is also a throwback to ancient ideas about ensuring that the so called better elements in society have means to restrict the lower house and its popular passions.87 These contradictory trends within the Senate's development find themselves expressed within what is perhaps the world's most powerful upper house.88 The only limit on the Senate's ability to initiate legislation is the Constitutional requirement that so called money bills must originate in the House.89 In modern practice, this requirement is virtually meaningless as the Senate has unlimited power to
81 82 83 84 85 86 87 88 89 id id id A google search reveals more than 5 million hits for filibuster reform. Jon Terbush, "Are Democrats Finally Serious about Filibuster Reform? - The Week," The Week, May 22, 2013, accessed May 24, 2013, http://theweek.com/article/index/244574/are-democrats-finallyserious-about-filibuster-reform Sinclair, 33 45 Clev. St. L. Rev. 165 at 180 Sinclair, 32 U.S. Const. art. I, 7, cl. 1

Alvis 12 amend any House money bill into any form the Senate chooses.90 Further the Senate's approval is required on all legislation passed by the House in the exact same format before it can become law.91 This means that one House can either force its preferred legislation on the other House92 or the two Houses can convene a conference committee to hammer out language acceptable to both Houses.93 These conference committees though are incredibly informal and often quite secretive.94 The House then has an interesting relationship with the Senate.95 They are essentially co-equal partners in the legislative process.96 But the superior prestige that accompanies being a Senator leads many members of the House long to serve in the Senate, regardless of power or seniority accumulated in the House.97 For instance, Massachusetts is currently holding a special election for the Senate seat vacated by John Kerry.98 The Democratic candidate, Edward Markey, is a 36.5 year veteran of the House which makes him the 8th most senior member of that body.99 Should he win and take up a seat in the Senate he will be the 100th most senior member of the Senate, but so great is the individual power of a Senator that such a shocking switch in seniority seems worth it.100 The Senate also has an important relationship with the President.101 The Senate
90 For an interesting recent example see the Patient Protection and Affordable Care Act, which started life as the Service Members Home Ownership Act in the House. 91 Levinson, 142 92 Again see the debate over the Affordable Care Act for a recent example. 93 Sinclair, 51 94 Donny Shaw, "Secretive Conference Committee Fights Back," OpenCongress, December 20, 2012, accessed May 24, 2013, http://www.opencongress.org/articles/view/2520-Secretive-ConferenceCommittee-Fights-Back-Attempt-to-Prohibit-Indefinite-Military-Detention-of-US-Citizens 95 Sinclair, 51 96 Sinclair, 32 97 Sinclair, 37 98 Katharine Seelye, "Poll Shows Strong Lead for Democrat in Massachusetts Senate Race," The Caucus, May 8, 2013, accessed May 24, 2013, http://thecaucus.blogs.nytimes.com/2013/05/08/in-mass-senaterace-markey-has-strong-lead-over-republican-challenger/ 99 Noah Bierman, "Once a Disrupter, Ed Markey Became a Master of the House," BostonGlobe.com, April 9, 2013, section goes here, accessed May 24, 2013, http://www.bostonglobe.com/news/nation/2013/04/08/edward-markey-once-disrupter-became-masterhouse 100 http://www.rollcall.com/politics/senateseniority.html 101 Sinclair, 52

Alvis 13 confirms many appointments to executive departments and must confirm all judicial appointments.102 Furthermore the executive branch, through the Vice President's role as President of the Senate, is in direct contact with the Senate, at least in theory.103 In practice this role has been virtually abandoned, except when there is a tie that needs to be broken (when the Vice President can save the administration's priorities) and at State of the Unions. Dick Cheney attempted to use the Vice President's constitutionally anomalous status as member of both executive and legislative branch to argue that he belonged to neither, but this is an interpretation that does not seem to have lived long past January 20th, 2009.104 The Senate then is a fascinating body. Created because of compromise it was meant to do the dual job of representing both states and the upper class. Over time it has gradually morphed into a body that is elected by the people while still reflecting a radically undemocratic apportionment scheme. Senators have also become in many ways the faces of Congress, as they are far better known and easier to cover in the modern mass media age.105 It's vast powers, combined with that focus in coverage, serve merely to exacerbate issues in its relationship with the House of Representatives, while it's archaic rules serve mainly to confuse. The role of the Senate in American politics is likely far larger than the Founders originally intended. They could not have foreseen the strange story of the development of the Senate nor the impact it would have on other upper houses around the world. V. The Historical Development of the Bundesrat The Bundesrat both is and is not an upper house. On the one hand, constitutionally speaking, it is not a part of the German Parliament, that role is reserved to the Bundestag alone.106 But on the other hand, its consent is required for a large
102 Senates, 24 103 U.S. Const. art. I, 3, cl. 4 104 Lloyd De Vries, "Cheney: The Fourth Branch?," CBSNews, February 11, 2009, accessed May 24, 2013, http://www.cbsnews.com/2100-500156_162-3011862.html 105 Sinclair, 38 106 Werner Patzelt, "The Very Federal House: The German Bundesrat," in Senates: Bicameralism in the Contemporary World, ed. Samuel C. Patterson and Anthony Mughan (Columbus: Ohio State University

Alvis 14 percentage of legislation and it is deeply and inextricably linked with the German legislative process.107 The Bundesrat is the only body in modern Germany that can even be described as an upper legislative house following the abolition of the Bavarian Senate in 1998.108 It also developed its unique character and role from a number of historical institutions found in predecessors to the Federal Republic.109 Perhaps its earliest ancestor was Reichstag of the Holy Roman Empire.110 This particular version of the Reichstag was composed of three different colleges representing three different types of Imperial State (the Electoral College-composed of electorates such as Bavaria, the college of Princeswhich was further divided into secular and ecclesiastical parts, and the college of Imperial Cities.)111 This was not a parliament in either the modern sense or even in the way that most medieval parliaments functioned.112 Instead it primarily served as a place where the incredible number of constituent states of the Empire could come together to discuss issues and seek to place limits on the power of the Holy Roman Emperor.113 After the Napoleonic Wars and the collapse of the Holy Roman Empire the Reichstag was replaced by the Bundestag of the German Confederation.114 The Bundestag was essentially a modified version of the Reichstag as states continued to use it as a forum for the various German states to meet and discuss issues.115 This version of the Bundestag was replaced by the Bundesrat of the North German Confederation which with minor modifications became the Bundesrat of the German Reich.116 It was composed of representatives from each of the constituent kingdoms, duchies, and principalities that
Press, 1999), 65 107 Patzelt, 61 108 Elisabeth Alber, "Ethnic Governance and Direct Democracy: Perils and Potential," in Direct Democracy and Minorities, ed. Wilfried Marxer (Wiesbaden: Springer VS, 2012), 83 109 Patzelt, 62 110 id 111Joachim Whaley, Germany and the Holy Roman Empire (Oxford: Oxford University Press, 2012), 5658 112 id 113 Whaley, 57 114 Patzelt, 62 115 id 116 Patzelt, 62-63

Alvis 15 comprised the German Reich, and was designed to reflect and maintain the federal character of the Reich.117 Votes were distributed based strictly on population, with states having between one to 17 votes.118 Votes were to be cast en bloc, which meant that in practice Prussia's 17 votes allowed it to easily dominate the body.119 In theory the Bundesrat was the most powerful part of the Imperial Parliament.120 The Imperial Chancellor for instance, always served as the President of the Bundesrat and it also had the authority to force the dissolution of the Reichstag with the approval of the Emperor.121 It also had an absolute veto on all legislation passed by the Reichstag.122 However these powers were little used in practice and overall the domination of the monarch and chancellor meant that both the Bundesrat and Reichstag were often sidelined.123 Following the passage of the Weimar Constitution and the fall of the German monarchies the Bundesrat morphed into the Reichsrat.124 The Reichsrat maintained the essential structure of the Bundesrat with voting numbers and rules remaining the same; only with representatives from the 25 new popularly elected state governments.125 The major change, besides the name, was in terms of power.126 The new Reichsrat was substantially less powerful than the old Bundesrat.127 Its power to dismiss the Reichstag was now ended completely as was its absolute veto, though it maintained a suspensive veto.128 After the rise of Hitler the Reichsrat lost even more power, in 1934 it was dissolved completely after Hitler functionally dissolved the German states.129 VI. The Modern Bundesrat: A Parliament of Bureaucrats?
117 Patzelt, 63 118 id 119 id 120 id 121 id 122 id 123 id 124 id 125 Patzelt, 63 126 id 127 Patzelt, 64 128 id 129 id

Alvis 16 The unitary character of the Weimar and Third Reich period encouraged those creating the post-World War II German constitution to look towards a federal system as a means of preventing another Hitler.130 The negotiations around the nature the upper house would take were drawn out and complex. While all parties desired a return to a federal system, there was substantial disagreement over whether or not the federal entities should have representation in the national government.131 The Social Democrats argued strongly in favor of an upper house modeled closely on the post-XVIIth Amendment United States Senate.132 They believed that while such a house was not necessarily the most effective in terms of protecting the rights of states, they did believe that it had a measure of democratic legitimacy that a body selected by state governments could not enjoy.133 The other major party, the Christian Democratic Union, preferred an upper house that drew more heavily on earlier German models.134 Eventually after months of difficult negotiations a compromise was reached and the modern Bundesrat was created.135 The Bundesrat was created by Article IV of the Grundegesetz, the German Basic Law.136 It draws on the voting system of the Bundesrat and Reichsrat of the Imperial and Weimar eras while creating a middle ground between the incredibly powerful Imperial Bundesrat and the weak Weimar Reichsrat.137 The Bundesrat has the ability to absolutely veto all legislation which affects the states or their powers under the Grundesgesetz.138 On all other legislation it has a suspensive veto that can be overridden by either a majority of the Bundestag-if a majority of the Bundesrat voted against the proposed law-or a 2/3rds majority of the Bundestag if 2/3rds of the Bundesrat votes against.139 But it no longer has
130 id 131 id 132 id 133 id 134 id 135 id 136 Germany, Bundestag, Grundegesetz, 43, accessed May 24, 2013, https://www.btgbestellservice.de/pdf/80201000.pdf 137 Stephen J. Silvia, "Reform Gridlock and the Role of the Bundesrat in German Politics," West European Politics 22, no. 2 (1999): 170, http://dx.doi.org/10.1080/01402389908425306 138 Silvia, 172 139 Silvia, 173

Alvis 17 any direct authority over the Chancellor or other members of the government.140 Approximately 40% of all legislation requires the absolute approval of the Bundesrat (a Zustimmungsgesetze) while the remaining 60% is subject to the suspensive veto (a Einspruchsgesetze.)141 Furthermore the Bundesrat has enormous discretion to initiate legislation though in practice this power is rarely used.142 More importantly it has a unique right of first look at legislation.143 Most legislation introduced by the Government itself (about 70% of all legislation144) must first receive examination by the Bundesrat.145 After this examination, the legislation which is not normally voted on at this stage, is sent to the Bundesrat with a list of recommendations that are almost always at least partially incorporated into the legislation.146 This ability to have the first look and make proposals is perhaps part of the reason behind the relatively small number of vetos the Bundesrat has attempted, on average less than 2% of all bills are successfully vetoed.147 The Bundesrat can also influence treaties, as all treaties which affect state power must be approved by the Bundesrat before they can be ratified.148 The Bundesrat also maintains an active EUCommitte that is often called the mini-Bundesrat which is in charge of critiquing and guiding rules from the EU which might impact the states.149 The Bundesrat also has enormous influence over domestic administrative guidelines and bureaucratic rules, and bureaucrats have enormous influence on the Bundesrat.150 All such rules which affect the states, which in Germany means the overwhelming majority, must receive the approval of the Bundesrat.151 One key reason
140 Germany, 56 141 Silvia, 175 142 Patzelt, 76 143 id 144 id 145 id 146 id 147 Silvia, 175 148 Patzelt, 81 149 Patzelt, 80 150 Patzelt, 81 151 id

Alvis 18 for this is in its overall institutional structure. The members of the Bundesrat are the sixteen German states, with all states having at least 3 votes proceeding on basis of population to at most 6.152 These votes are controlled by the state's government at the moment and can be cast (as a block) by any member of the state government authorized to do so.153 Because votes are cast by members of the state governmental cabinets, they typically are not able to devote much time to their duties to the Bundesrat.154 As such, a vast army of bureaucrats works to prepare information and legislation for the state government members who arrive in Berlin on approximately three week intervals to complete the legislative work.155 In fact the role of bureaucrats is so important in the Bundesrat that it was cited by South African sources as a reason for their decision not to implement the Bundesrat model in the Constitution of 1994.156 One of the most important and unique features of the Bundesrat and of the German federal system in general are the Landesvertretung (roughly translated, State Representation.)157 These function as embassies for the 16 German states in Berlin and are fully staffed by a complement of state bureaucratic officials at all time.158 They are the focal point of each state's bureaucratic preparations in the Bundesrat and officials from the Landesvertretung often staff the Bundesrat committees.159 As such bureaucrats have an enormous influence over the running and legislative production of the Bundesrat, something which contributes to its virtual non-existence in the minds of many Germans.160 While the Bundesrat is often considered to be the world's
152 Germany, 44 153 id 154 Patzelt, 67 155 "Plenary Meetings," Bundesrat, accessed May 24, 2013, http://www.bundesrat.de/nn_11590/EN/funktionen-en/arbeitsweise-en/Sitzung-en.html 156 Christina Murray, "South Africa's National Council of Provinces," in Reforming Parliamentary Democracy, by F... Seidle and David Docherty (Montreal: McGill-Queen's University Press, 2003), 209-210 157 "Im Bund," Vertretung Des Landes Rheinland-Pfalz, in German, accessed May 24, 2013, http://lv.rlp.de/aufgaben/im-bund/ 158 id 159 "Im Bund," Vertretung Des Landes Rheinland-Pfalz, in German, accessed May 24, 2013, http://lv.rlp.de/aufgaben/im-bund/ 160 Silvia, 168

Alvis 19 second most powerful upper house it has a very limited presence in the German media.161 Much of this is due to the dry and bureaucratic nature of much of the Bundesrat's sessions.162 Infamously, a broadcast session of the Bundesrat dedicated to discussing a defense treaty in 1953 was so difficult to understand that it left a permanent impression amongst German citizens as the Bundesrat as simply a group of bureaucrats arguing over technical details.163 This impression occasionally leads to a vague desire amongst Germans for some sort of reform of the Bundesrat.164 This was especially true during the 1970s when a determined and prolonged battle between the Bundestag (controlled by the Social Democrats) and the Bundesrat (controlled by the Christian Democrats) resulted in a prolonged discussion of the role of the Bundesrat in German politics.165 This discussion tapered off following the return of the Christian Democrats to power in 1982 and since then there has not been an equivalent period of Bundesrat-Bundestag tension.166 It occupies a strange niche, as it both safeguards Germany's system of marble cake federalism (i.e. a federalism that features federal and state authority mixing together rather than being separated out167) and provides a powerful institutional voice for Germany's strong states and bureaucrats.168 As Germany's first post war President, Theodor Heuss, stated the Bundesrat is indeed a parliament of bureaucrats.169 VII. The Canadian Senate The Canadian Senate is an outlier within the constitutional order of its own country.170 It is the only remaining upper house in Canadian politics following the 1968
161 Patzelt, 71 162 Silvia, 174 163 Patzelt, 87 164 Silvia, 174-176 165 Silvia, 176 166 id 167 Silvia, 171 168 Patzelt, 84 169 id 170 David Smith, The Canadian Senate in Bicameral Perspective (Toronto: University of Toronto Press, 2003), 3

Alvis 20 abolition of Quebec's Legislative Council.171 The Bundesrat, as discussed supra, is a model for how a unique upper house with real connections to a nation's history and with a clearly defined and executed role in the constitutional order can be a major player in a modern nation's politics. Unfortunately the Canadian Senate which lacks such a clearly defined mission and history is a major player only in the sense that parties argue intensely over whether total reform or abolition is preferable to the Senate's status quo.172 The Senate of Canada was created by the British North America Act of 1867, passed by the Parliament of the United Kingdom following an extensive series of conferences held be Canadian leaders.173 These conferences and the Act are part of the process of Canadian Confederation, which began with the Charlottetown Conference of 1864.174 This conference was originally called by the Premiers of the Maritime colonies of New Brunswick, Nova Scotia, and Prince Edward Island which were interested in federating their colonies into a single union.175 Shortly before the conference was due to begin, in the spring of 1864, the leadership of the conference received a shocking request from John A. MacDonald.176 MacDonald was the Premier of the Province of Canada, composed of the two colonies of Canada West (modern day Ontario) and Canada East (modern day Quebec.)177 The Province of Canada was fraught with political problems caused by it's split between anglophone Ontario and francophone Quebec and there was concern in London that those problems could eventually lead to an invasion by the United States.178 MacDonald's shocking request then was that the Province of Canada join with the Maritime Colonies in a large federation.179 MacDonald was allowed to attend and the focus shifted from merely creating a union of Maritime provinces to creating a union for
171 id 172 Gloria Galloway, "NDP's Mulcair Takes Aim at Senate Abolition," Globe and Mail, May 22, 2013, accessed May 24, 2013, http://www.theglobeandmail.com/news/politics/ndps-mulcair-takes-aim-atsenate-abolition/article12058932/ 173 Margaret Conrad, A Concise History of Canada (New York: Cambridge University Press, 2012), 146 174 Conrad, 147 175 Conrad, 146 176 Conrad, 147 177 Conrad, 146 178 Conrad, 145 179 Conrad, 146

Alvis 21 all of Canada.180 The Conference, which sadly produced no minutes, was successful in creating a plan for federation, the cornerstone was to be a bi-cameral legislature on the American model, with one house reflecting population and another apportioned on the basis of provincial equality.181 The broad agreement reached at Charlottetown was to be fleshed out in the Quebec Conference of 1864.182 The predominant issue under discussion at Quebec and an issue which nearly derailed the entire effort of Confederation was the Senate.183 The Maritime provinces pushed for provincial equality in numbers of Senators but unlike small states at the American Constitutional Convention, the Maritimes failed to achieve it.184 This could possibly be explained by the different distribution of power and population amongst the population of the future Canadian provinces versus the relationships between the future American states.185 The population of Virginia (the most populous state) in 1790 was 691,737 while the population of Delaware (the least populous state) was 59,096 resulting in a population ratio of approximately 12 to 1.186 The population of Canada West (the most populous part of what would become Canada) in 1861 was 1,396,091 while the population of Prince Edward Island (the least populous part) was 80,857, a ratio of approximately 17 to 1.187 It was also clearly understood by those at the Conference that while Canada West's population was expanding rapidly (it had increased by almost 50% since 1851) Prince Edward Island and the Maritime Provinces were reaching the limits of their ability to grow.188189 The overwhelming
180 Conrad, 147 181 Richard Gwyn, John A.: The Man Who Made Us (Toronto: Vintage Canada, 2008), 304 182 Conrad, 148 183 Gwyn, 350 184 id 185 id 186 United States, Census Bureau, Table 15, , accessed May 24, 2013, http://www.census.gov/population/www/documentation/twps0056/tabs15-65.pdf 187 Canada, Statistics Canada, Section A: Population and Migration, , accessed May 24, 2013, http://www.statcan.gc.ca/pub/11-516-x/pdf/5500092-eng.pdf 188 They were quite right. Ontario's population currently stands at nearly 13 million while Prince Edward Island is currently at around 140,000. 189 Gwyn, 351

Alvis 22 differential between the Province of Canada and the Maritimes forced a compromise, instead of provincial equality, there would be regional equality with Canada West, Canada East, and the Maritime Region each receiving 24 Senators.190191 It was agreed that Newfoundland, a British Colony that was expected to eventually join the federation would receive four Senators upon entry.192193 VIII. A House Forgotten As Canada's new Parliament was formally created and summoned following the ratification of the Quebec Agreement in the British North America Act, John A. MacDonald, now serving as Canada's first federal Prime Minister, expressed a desire that the Senate would serve as a body of sober second thought.194 What MacDonald and the other founders of the Canadian confederation could not imagine that rather than create a body of sober second thought, they had created a body that would essentially be forgotten.195 From the earliest days of Canada the Senate was overlooked by both politicians and the public.196 The Senate actually has a great deal of potential legislative power.197 It can initiate any legislation (with the exception of money bills) and has a theoretically broad power of amendment.198 Furthermore its approval is required before legislation can become law.199 Despite these broad powers, for much of Canadian history, the Senate has simply refused to exercise them.200 Members of the Senate are appointed by the Governor General on the
190 Conrad, 148 191 New Brunswick and Nova Scotia received 10 while Prince Edward Island received four. 192 Newfoundland ended up waiting until 1949 to join. At which point changes to the method of granting new provinces Senators meant that it received 6. Smith, 70 193 Gwyn, 317 194 CBC News, "Canada's Senate: Sober Second Thought," CBCnews, July 09, 2010, accessed May 24, 2013, http://www.cbc.ca/news/canada/story/2010/07/09/f-senate-background.html 195 C.E.S Franks, "Not Dead Yet, but Should It Be Resurrected? The Canadian Senate," in Senates: Bicameralism in the Contemporary World, ed. Samuel C. Patterson and Anthony Mughan (Columbus: Ohio State University Press, 1999), 123 196 id 197 CBC 198 Franks, 122 199 Smith, 110 200 Franks, 122-123

Alvis 23 advice of the Prime Minister, something which makes the Senate unusually sensitive to the political parties and desires of the Canadian House of Commons.201 Canada has a history of long periods of political domination of the House of Commons by one party, which allows for control of the Senate to remain with the party in government. The Conservative Party of Canada (a distinct party from that which exists today) ruled from 1867 to 1896 with only a 5 year break.202 And the Liberal Party of Canada ruled for 70 of the 88 years between 1896 and 1984.203 These long periods of one party rule combined with the ability of the Prime Minister to appointment members of the Senate meant that the Senate was often content to simply approve legislation passed by the House of Commons without question.204 This willingness was also driven by a feeling that the unelected status of the Senate severely limited its legitimacy in comparison with the popularly elected Commons.205 During the first 100 years or so of Canada the Senate was only really able to break into the Canadian political consciousness when some sort of scandal erupted.206 Perhaps most famously, the Persons Case of 1929 held that women were not considered persons within the meaning of the British North America Act and could not therefore serve in the Senate.207 This decision of the Supreme Court of Canada was eventually overturned by the Judicial Committee of the Privy Council of the United Kingdom, at that point the court of last resort for Canada, which allowed both women to serve in the Senate and encouraged Canadian politicians to end the ability of the Privy Council to hear Canadian cases.208 So even the Senate's early scandals were not focused on the actions of the Senate
201 Smith, 68 202 Canada, Parliament of Canada, How Canadians Govern Themselves, by Eugene Forsey, section goes here, accessed May 24, 2013, http://www.parl.gc.ca/About/Parliament/SenatorEugeneForsey/book/assets/pdf/How_Canadians_Gover n_Themselves8.pdf 203 id 204 Franks, 125 205 Franks, 123 206 Conrad, 201 207 Edwards v. Canada (Attorney General) found at http://www2.law.columbia.edu/faculty_franke/CLT2009/Persons%20Case.pdf 208 Conrad, 201

Alvis 24 but of the institution itself. The lack of interest in the Senate can be most starkly shown by the fact that between 1926 and 1978 it was the subject of only three major studies in English.209 That lack of interest has recently begun to change.210 The beginning of this increasing attention on the Senate can be traced to the mid 1980s.211 In 1984, the long lasting Liberal coalition of Prime Minister Pierre Trudeau collapsed, making Progressive Conservative Brian Mulroney Prime Minister with what was at the time the largest majority in Canadian political history.212 Mulroney, like many conservative politicians of the 1980s, sought to implement neo-liberal reforms.213 The Liberals, who remained firmly in control of the unelected Senate, were diametrically opposed and decided to use the Senate as a means of stymieing Mulroney's agenda.214 The efficacy of this plan is debatable, the Liberals were often unable to force Mulroney to change the substance of his legislation beyond cosmetic modifications.215 This was even more apparent after Mulroney used a virtually forgotten feature of the Constitution Act of 1867 to enlarge the Senate by 8 members to create a Senate equally divided between the parties.216 Mulroney left office in 1992 after passing the deeply unpopular Goods and Services Tax and his party was reduced to a mere two seats in the following election.217 This was really the first time the Senate had actively attempted to change or defeat large swaths of a Prime Ministers program and many Canadian politicians both Liberal and Conservative were left deeply uncomfortable.218 This really marked the beginning of the recent focus on reforming the Senate something which has only been exacerbated by the recent explosive growth of Canada's western provinces.219 As Canada expanded to the
209 Smith, 3 210 Smith, 1 211 Franks, 124 212 id 213 Conrad, 258 214 Franks, 125 215 id 216 Franks, 135 217 Conrad, 264 218 Franks, 141 219 Peter Meekison, "Alberta & The Constitution," in Government and Politics in Alberta, by Allan Tupper

Alvis 25 west in the late 19th and early 20th century 4 new provinces were created (Manitoba, Alberta, Saskatchewan, and British Columbia) in keeping with the principle of regional equality, the new Western Canada region was awarded 24 seats in the Senate, with each new province receiving 6.220 While this might have made sense at the time, in modern Canada this is patently unfair. Both British Columbia and Alberta have populations equivalent to the total population of the Maritime Provinces combined but have only 12 seats in the Senate compared to the 24 seats held by the Maritimes.221 This shocking inequality has led to increasing calls for Senate reform from the West, Alberta in particular has emphasized the so called three Es (Elected, Equal, Effective.)222 All Canadian political parties recognize that some sort of reform is necessary, with both the New Democratic Party and the Bloc Quebecois (which between them hold over a third of the seats in the House of Commons) advocating complete abolition.223 Currently the Canadian government, led by the Conservatives is seeking to radically change the method of selecting Senators.224 Bill C-7 would institute an 8 year term limit for Senators (at the moment they serve for life with a mandatory retirement age of 75) and would require that the Prime Minister appoint Senators selected by provinces in democratic elections.225 The bill is pending before the Supreme Court of Canada for an advisory opinion on it's constitutionality and many in Canada believe that it is in fact unconstitutional to seek these changes without amending the Canadian Constitution.226 Furthermore many in
and Roger Gibbins (Edmonton, Alta., Canada: University of Alberta Press, 1992), 257 220 Parliament of Canada 221 Canada, Statistics Canada, Population, Urban and Rural, by Province and Territory, accessed May 24, 2013, http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/demo62k-eng.htm 222 Franks, 149 223 Galloway 224 Michel Comte, "Canada PM Calls for Senate Reform amid Expenses Scandal," AFP, May 21, 2013, section goes here, accessed May 24, 2013, http://www.google.com/hostednews/afp/article/ALeqM5gLo2ZdvbJ24yBLpajoC1qiAZvVqA? docId=CNG.2deed015095f5cee49916de6c2e98ac5.8e1 225 Canadian Bar Association, Bill C-7 Senate Reform Act, issue brief, January 2012, accessed May 24, 2013, http://www.cba.org/cba/submissions/pdf/12-04-eng.pdf 226 Matthew Mendelsohn, "Abolish the Senate? Forget It: Change the Senate? Maybe," Globe and Mail, May 24, 2013, accessed May 24, 2013, http://www.theglobeandmail.com/commentary/abolish-thesenate-forget-it-change-the-senate-maybe/article12127063/?cmpid=rss1

Alvis 26 Canada point out that this would merely lend democratic legitimacy to the incredible malapportionment currently in place and might lead to the democratically chosen Senators seeking to become a more co-equal house of Parliament.227 The Canadian Senate is also again in the news for a rising scandal over Senatorial expenses.228 A Senatorial scandal not focused on the rarified air of constitutional debates over power and apportionment and instead focused on a baser economic discussion could not have come at a better time for those seeking reform.229 Regardless of whether or not the current reform legislation succeeds it seems clear that the Canadian Senate as currently constituted is not long for the world. IX. Conclusion: Bi-cameralism and Federalism Many political scientists argue that a bi-cameral legislature is necessary to maintain a federal system.230 This is ignores though both the history of bi-cameral legislatures and the modern political experience. Upper houses did not develop out of a desire to ensure representation of various regions, rather they developed out of medieval parliaments that sought to ensure recognition for members of the elite. Upper houses are also no guarantee against a centralization of power. The United States and Germany, which have the world's most powerful upper houses, have both experienced an increasing amount of authority migrating to the national government. Canada on the other hand, has an incredibly weak, nearly useless upper house and maintains a federal system where sub-national units retain their vast power. The important thing for maintaining a strong federal system then is not merely having an upper house, but having the popular will and desire to keep power located within the states or provinces. The question is if upper houses are not necessary to maintain federalism what then are they for? The U.S. Senate has not been a guarantor of federalism since at least the
227 Franks, 150 228 Steve Chase, "RCMP Now Looking into Senate Expenses Scandal," Globe and Mail, May 23, 2013, accessed May 24, 2013, http://www.theglobeandmail.com/news/politics/rcmp-looking-into-senateexpenses-scandal/article12100393/ 229 Mendelsohn 230 Nolan McCarty and Micheal Cutrone, Does Bicameralism Matter?, Princeton University, accessed May 24, 2013, http://www.princeton.edu/~nmccarty/bicameralism.pdf

Alvis 27 XVIIth Amendment if not before. Rather it functions as almost a house for media, with it's smaller membership and stronger powers it has become the face of the U.S. Congress. In Germany, the Bundesrat gives the states a voice in laws affecting them and gives bureaucrats a powerful institutional role in the federal government. And Canada maintains, for the time being, a Senate that seems to serve no purpose other than either serving no real purpose or encouraging its own reform or abolition. The bi-cameral idea is something deeply engrained into Western concepts of what a national legislature should be, but when examined in detail it is not always clear why that should be the case in the modern world.