The Legislatures of the United States And Germany. A Comparison

Term Paper (Advanced seminar) 2001 31 Pages

Politics - International Politics - Region: USA


Table of Contents

1. Introduction

2. Constitutional Developments
2.1 The Role of the American Congress: The Framer’s Design
2.2 Constitutional Background In Germany

3. The Legislatures of the United States And the Federal Republic of Germany
3.1 The United States Congress
3.1.1 Organization And Functions of the United States Congress
3.1.2 The House of Representatives
3.1.3 The Senate
3.2 Functions And Structure of the German Parliament
3.2.1 The Bundesrat (Federal Council)
3.2.2 The Bundestag (Federal Diet)

4. Conclusion


1. Introduction

“Legislatures have one core defining function: that of giving assent to measures that, by virtue of that assent, are to be binding on society. In practice, they have usually other roles as well, such as debating measures or the conduct of public affairs. They have existed for centuries. They span the globe. Most countries have one; federal states have several.”[1]

This statement applies to both institutions my paper deals with: to the United States Congress as well as to Germany’s parliament. The constitutional core of both political systems is actually a powerful bicameral parliament vested with the power to enact legislation. However, the structure of power of the American Congress in comparison to the German system is different in regard to the relationship of both chambers to each other on the one hand and to the executive on the other hand. But both institutions share the same essential functions of representing the people of their country, of counterbalancing the executive power and of developing legislation.

Germany’s political system is build upon a parliamentary structure, where the power of the executive depends on a prime minister or chancellor and his cabinet getting their mandate from the legislature and thus being responsible to and depending on the support of it. On the contrary, the United States features a presidential system, where the president is both head of the state and head of the government, independent from the legislature, which can be dominated by the opposing party (divided government). But this does not mean that the two branches cannot be compared. Because of their position within the federal system (as described above) and the similar composition of the branches, a comparison is more than just possible. It was the high influence of the allied powers and in particular of the United States occupation policy after World War II that made the German parliament bicameral. Its first chamber, the Bundestag (Federal Diet) corresponds to the United States House of Representatives, the Bundesrat (Federal Council) is comparable to the United States Senate – although I have to admit, that Germany’s chambers are created unequal.

In this regard, I would like to answer the following questions: How is the legislative power in the respective countries constitutionally vested and structured? What are the powers and functions of the two branches? What are the differences, what are the correspondences between the two legislative branches? Thus, my paper will not describe in detail the relationship to the specific executive. Only when it seems necessary, some references will be made. Moreover, because the approach I chose is a very general one, I will not describe every detail but merely the important facts. Therefore, the paper first will briefly deal with the historical background that led to the development of both parliaments in order to have a better understanding for their specific compositions. My main body describes the legislatures themselves. Because both parliaments are bicameral, I portray them individually. In my concluding last chapter, all the questions raised in this introduction will be answered.

While researching for my paper, I was not able to find sufficient English books about the German political system in general. So had to use some German ones. Nevertheless, there are some books and journal articles I regard as very useful like Thomas Saalfeld: The German Bundestag: Influence and Accountability in a Complex Environment and the homepages: www.bundestag.de and www.bundesrat.de. Both offer very good English translations. Regarding the United States Congress, the following books provided a very good general description of this branch that fitted very well in my approach: William J. Keefe/Morris S. Ogul: The American Legislative Process and Roger H. Davidson/Walter J. Oleszek: Congress and Its Members.

2. Constitutional Developments

2.1 The Role of the American Congress: The Framer’s Design

After having successfully separated themselves from the United Kingdom, the newly founded United States searched for a new form of government that would prevent one single person from concentrating the executive and the legislative power in one hand. Having also experienced a Continental Congress authorized with the powers of executive, legislature and judiciary, the founding fathers searched for a more effective way of governing.

Thus, referring to Montesquieu’s “Two Treatises of Government”, the founding fathers established the core principle of separation of powers. Although “[t]he constitutional convention of 1787 is supposed to have created a government of ‘separated powers’, [i]t did nothing of the sort. Rather, it created a government of separated institutions sharing powers.”[2] Nevertheless, the framers worked out a theme that could be found throughout the Revolution, in the Declaration of Independence, and within the citizen’s attempt to establish governmental branches before the Constitution was developed.[3]

Like it was later done for the Federal Republic of Germany, the legislative branch became the core of the Constitution. Congress was placed on the first position (Article I)[4] within the document taking far more space than any of the other branches. It was designed as one of the major checks and balances to the president. Like the British model, Congress was made bicameral consisting of a House of Representatives and a Senate. In addition, House members were to be reelected and thus “directly responsible to the people in order to encourage popular consent for the new Constitution, and (…) to help enhance the power of the new government.”[5]

The concern of unavoidable checks and balances was also applied to Congress itself. By creating the Senate, the possibility of excessive democracy was eased. Because not before the Seventeenth Amendment of 1913, Senate could be elected popularly, long terms and strong state interests were supposed to compensate the people’s will. In addition, laws could only be enacted by both chambers. In order to strengthen Congress and states furthermore, expressed powers were granted, assisted by the necessary and proper clause (Article I, Section 8).

2.2 Constitutional Background In Germany

After World War II, Germany was totally stripped of any politically autonomous power. The allied forces of the United States, Great Britain, Soviet Union and France divided Germany into four occupation zones, while Berlin was given a special status with four sectors, each commanded by one of the allies.[6] In 1948, parties and communal and state administrations were allowed again. The allied forces then stated general conditions for a constitutional assembly, the Parliamentary Council (Parlamentarischer Rat).[7] In this regard, especially the United States pushed for a democratic and federalist apparatus of state and for the guarantee of individual rights and liberties. But instead of a full-scale constitution, the founding fathers only developed a provisional arrangement, the Basic Law (Grundgesetz).[8]

Within their provisions, the founding fathers referred explicitly to the American constitutional system with its checks and balances.[9] The Basic Law aimed to place the Bundestag in the center of the new system giving to it a legitimacy monopoly because this institution is the only directly elected one. Consequently, a parliamentarian system was established. After several quarrels over the nature of the legislature, the Parliamentary Council agreed to a second chamber for the states, the Bundesrat, which was constitutionally weaker than the United States Senate. It represents more the interest of the state governments than that of their population. With this chamber, the Bundestag had to face a very strong states counterpart.[10]

In order to strengthen the Bundestag, the formerly powerful Federal President was reduced to a merely representative head of the state, not able to threaten the parliamentary democracy. The chancellor himself was not able to dissolve the Bundestag so easily as before. The Bundestag itself had to face certain limitations. Therefore, it can only remove the chancellor by simultaneously electing a successor (constructive vote of no confidence). Another improvement was the development of the five percent hurdle for parties. In order to avoid the former splitting up of the parliament into tiny splinter parties (unable to govern or oppose), parties were only allowed within the Bundestag if they had gained at least five percent of the seats within the chamber.[11]

3. The Legislatures of the United States And the Federal Republic of Germany

3.1 The United States Congress

The legislative function in the United States of American is shared between the two chambers of Congress, the House of Representatives and the Senate. During the last decades especially, the workload of Congress has increased and gained complexity. Science, a globally spanning network of foreign relations, the expansion of governmental services and functions, of social relations and so on has created a greater burden of legislation.[12] In this regard, Congress itself has increased. Because every state is allowed to elect two Senators this chamber has grown up to 100 members by now. The House of Representatives seats 435 members, based upon the constitutionally required census every tenth year. Because both chambers are created equal, I shall first state functions and structures they share or have in common, then portray them individually.

3.1.1 Organization And Functions of the United States Congress

Although, the importance of Congress has waned throughout the twentieth century while the presidency simultaneously has become the more (or even most) important branch, the Congress has various important functions it shares with most of the parliaments worldwide.

a) The function of representing the people. The idea of representing the people is inherent in every parliamentary branch. In this regard, Congress members shall represent at least their own constituency or the states in social and interest means and therefore interacting with and educating the public.
b) The function of making laws. Both chambers are created equal and share the power to enact legislation, a process that requires the involvement of the president. Expressly granted constitutional rights build up the jurisdiction of Congress. Only the Senate was vested with some additional powers.
c) The function of checking and balancing. The inherent checks and balances of the United States political system include checks between the chambers themselves as well as on and by the president and the bureaucracy.


[1] Philip Norton: General Introduction, in: Ibid (ed.): Parliaments in contemporary Western Europe Vol. I: Parliaments and Governments in Western Europe, London/Portland, Oregon: Franc Cass Publishers, 1998, p. xi.

[2] Richard Neustadt: Presidential Power, New York: John Witey & Sons, 1960, p.33.

[3] Louis Fisher: Principle of Separated Powers, in: Ibid: President and Congress. Power and Policy, New York: Free Press, 1972, pp.1-27.

[4] The Constitution of the United States of America, in: Mason, Alpheus Thomas/Stephenson, Donald Grier Jr.: American Constitutional Law. Introductory Essays and Selected Cases, New Jersey: Simon & Schuster, 1999, pp. 677-687. All following Articles are quoted from this edition.

[5] Theodore J. Lowi/Benjamin Ginsberg: American Government. Freedom and Power, Sixth Edition, New York/ London: W.W. Norton & Company, 2000, p. 42.

[6] Gerard Braunthal: Parties and Politics in Modern Germany, Boulder: Westview Press, 1996, p. 32.

[7] For further reading see Peter Pulzer: German Politics 1945-1995, New York: Oxford University Press, 1995, pp. 23-50.

[8] At this time, they still hoped for a reunification with Eastern part, planning to write a constitution afterwards. This was never done. Later on, the former GDR only joined the Basic Law that was amended for this case.

[9] Helmut Steinberger: American Constitutionalism and German Constitutional Development, in: Louis Henkin/Albert J. Rosenthal (ed.): Constitutionalism and rights, New York 1990, pp. 199-215 and Martin J. Hillenbrand: The United States and the Formation of the Bundestag, in: Thaysen, Uwe/Davidson, Roger H./Livingston, Robert Gerald (ed.): The United Stated Congress and the German Bundestag. Comparison of Democratic Processes, Boulder/San Francisco/Oxford: Westview Press, 1990.

[10] Wolfgang Rudzio: Das politische System der Bundesrepublik Deutschland, 4. Auflage, Opladen: Leske & Budrich, 1996, pp. 48-49, and A.J. Nicholls: The Bonn Republic. West German Democracy, 1945-1990, London/New York: Longman, 1997, pp. 74-80.

[11] Nevil Johnson: State and Government in the Federal Republic of Germany. The Executive at Work, Second Edition, Oxford and others: Pergamon Press, 1983, p. 49.

[12] William J. Keefe/Morris S. Ogul: The American Legislative Process. Congress and the States, Tenth Edition, Upper Saddle River, New Jersey: Prentice Hall 2001, p. 21.


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Title: The Legislatures of the United States And Germany. A Comparison