SECTION IV. The Reichsrat

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.

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.

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The Reichsrat has the right to create its own committees. 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.