Governing by commission: A way to more effective governance or a loss of democratic accountability?

VerfasserBlumenthal, Julia von

1 Introduction

The different forms of political advice, its relevance for the decision-making process, and its normative implications have gained widespread academic attention. In Germany, this discussion has been particularly stimulated by the first and second German government led by Gerhard Schroder. Think tanks not being as common and as influential as in other countries like the United States, other institutionalized forms of permanent and temporal political consultancy have fostered the debate on the role political advice can and should play. Especially non-permanent commissions installed by the government as an instrument to prepare political decisions and/or to negotiate policies with private actors have become popular and raise questions concerning their practical relevance and their effect on the legitimacy of the democratic decision-making process. Schroder's so-called Council-Republic ('Rate-Republik') has been seen either as a means to come to a broad societal consensus to allow for necessary fundamental reforms (Steinmeier 2001) or as a threat to parliamentary democracy and the principle of political accountability (Papier 2003).

The use of commissions as a means of governing can also be discussed under the question of the implications of a changing role of the state often marked by the term of "Governance" (Benz 2004: 14). As the research on the many different bodies providing political advice or serving to prepare political decisions has not agreed on one coherent typology so far, I will, firstly, outline a typology of commissions. Secondly, I will present empirical findings which provide an answer to the question under which conditions and to what extent commissions have relevant influence on the decision-making process. Finally, I will discuss the effect of commissions on the legislative process in the light of different theories of democracy.

2 A Typology of Commissions

Neither governmental commissions nor other informal forms of institutionalized political advice or negotiations between the government, the governing majority in parliament, the opposition, and private actors are new phenomena or peculiar to the German political system. Corporatist negotiations between the state and interest groups have been taking place for decades. But the composition of the individual commissions and the reason for their existence differ. As a result, the scientific research has come up with various classifications based on the formal status (Gross 1999; Unkelbach 2001) or on a set of criteria which includes the permanent or non-permanent character, the mandate and the composition (Siefken 2006: 560). Other authors concentrate on the structure, the mode of arguing and the type of policy the respective commission deals with (Sebaldt 2004: 190).

The following typology of commissions is based on the role of commissions within the constitutional framework and their composition because applying these criteria we come to a differentiation adequate for the following normative discussion of the effect of commissions on the input- and the output-dimension of democratic legitimacy (Schmidt 2003). The typology only includes commissions that are formed by the government and in which actors from outside the government participate, be it from the private sector or public sectors outside the government (Blumenthal 2003: 9-10). It concentrates on temporary commissions that are created for a certain purpose. Permanent commissions do exist in a broad range of political fields but their effect on the political process is often less obvious because they act as purely advisory bodies. Their creation follows different rules and aims, their character is often less political. Therefore, they do not raise the same normative questions as do the nonpermanent commissions discussed in this paper. The same is true for expert commissions called into being by the parliament because they remain under parliamentary control. Their political effect is limited by the antagonism between governing majority and opposition and normally does not go further than opening up the parliamentary discourse, fostering parliamentary consensus, and preparing parliamentary decisions (Altenhof 2002: 337, 339f.).

The first type of commission follows the principle of pluralistic corporatism which means the inclusion of organized interests both in the older form of tripartite corporatist arrangements and in the more recent form of including interest groups from various spheres of the society (Czerwick 1999: 424). The aim of such commissions consisting of representatives of the state and of interest organizations is to provide a forum for negotiations and consensus-seeking on future projects of legislation and/or the implementation of existing laws. The idea is to integrate the affected parties in order to either diminish their resistance against planned measures or find a negotiated way out of a deadlock. In some cases the agreement may include self-obligations of the private actors which cover questions that either lie outside the competence of the state or take the place of binding regulations. The underlying reason for the government to choose this strategy is the vanishing steering capacity of the state especially in the field of economic policy. Therefore, the appearance of this kind of commission is part of the overall tendency towards less hierarchical modes of governing and more participation of private actors, i. e. the growing relevance of governance as opposed to governing (Benz 2004: 19). Pluralistic corporatism is also linked to the idea of achieving better political results and improving legitimization by enhancing participation (Czerwick 1999: 424f.). On the other hand, these commissions raise criticism as such informal decision-making procedures may have a negative effect on the political accountability of parliament and government.

Recent examples for commissions following the principle of pluralistic corporatism are the Alliance for Jobs, which represents the traditional form of tripartite corporatist arrangements (Schroder 2003: 107f.; Siegel 2003: 148f.), and the bilateral negotiations between the Red-Green government and the atomic industry which led to an agreement about the long-term abandoning of the use of nuclear energy in Germany.

The second type of commission is characterized by its composition mainly of experts in the respective field of policy. At first glance, they seem to be pure instruments of consultancy and therefore may not raise any criticism from the perspective of democratic theory. The government seeks to gain expertise, which is not present within the administration, and may be interested in fostering public discourse on the subject in question. Recent examples are the 'Wehrstrukturkommission' which held its meetings in 1999/2000 under the chair of the former German president Richard von Weizsacker and outlined perspectives for the reform of the German army, and the Su[szlig]muth-Commission which dealt with immigration policy and presented its report of more than 300 pages in July 2001. Two other commissions, which where installed to design reform concepts for the labor market and the social insurance system (Hartz-Commission, Rurup-Commission), show that this kind of commission can only rarely be composed without the participation of groups affected by the coming policy. Therefore, its effect is not limited to pure political advice. It may also aim to involve interested groups. In this case, these commissions raise the question of participation and political accountability in almost the same manner as pluralistic corporatist negotiations do. Regarding the advisory function, the effect commissions have on the political process becomes interesting as soon as the government declares its willingness to implement the recommendations unchanged--'1:1' as Schroder stated concerning the reform-concept for the labor market presented by the Hartz-Commission.

The third type of commission which is often discussed in this context and meets with criticism especially from the perspective of constitutional law are informal consensus talks between governing majority and opposition in order to overcome the deadlock which often results from differing majorities in the lower ('Bundestag') and upper chamber ('Bundesrat') of the German parliament. These partly institutionalized informal negotiations are not subject of this article. They are inherent in the German political system, which is characterized by joint decision-making ('Politikverflechtung'; Scharpf 1994: 59), and are deeply rooted in the constitutional setting. In this case, the necessity of negotiations between government and opposition is not in question, it is rather a question of timing and of the formal or informal way of decision-making as part of the chancellor's leadership style (Helms 2005: 80). From the perspective of democratic theory a mostly informal way may be questionable in the light of the principle of transparency and/or clear democratic accountability but the government's choice is either negotiation or non-decision (Czada 2000:44). The participants of these talks come almost exclusively from the formal political institutions, sometimes including representatives from the party organizations. Experts may be asked for advice but their influence is very limited as was clearly demonstrated by the proceedings of the recent commission on the reform of the German federal system which failed to reach a consensus mainly due to political self-interest of the actors involved (Lhotta, Hoffken, Ketelhut 2005: 40).

3 Governing by Commissions: Empirical Findings

As mentioned above, the first and second Red-Green governments led by Gerhard Schroder provide rich empirical data on the functions and effective results of different types of commissions. In the following section I will examine the composition and the effect of the first and second type of commissions...

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