Two Steps Forwards, One Step Back? Party Competition, Cooperative Federalism, and Transport Policy Reforms in Germany

doi:10.21203/rs.3.rs-2120380/v1

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Research Article

Two Steps Forwards, One Step Back? Party Competition, Cooperative Federalism, and Transport Policy Reforms in Germany

https://doi.org/10.21203/rs.3.rs-2120380/v1

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published 12 Jun, 2023

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Background

As part of the Verkehrswende, the extensive transition towards sustainable transport and mobility in Germany, the federal government proposed the reform of two key ordinances to implement provisions at the expense of car drivers and, at the same time, in favor of cycling and walking. Due to cooperative federalism, the Bundesrat as the de facto second chamber had to adopt the reform. In the legislative process, the reform ultimately failed in its original scope. Using it as a particularly instructive case study, we show how and why party competition and cooperative federalism hamper comprehensive transport policy reforms in Germany.

Results

Based on our process-tracing approach, we find that political parties make use of their power in the Bundesrat to influence legislative procedures in accordance with their agenda. Moreover, the political majority constellations in the Bundesrat hinder major transportation reforms and allow for only incremental steps based on the lowest common denominator among decision-makers.

Conclusions

The case study provides novel empirical evidence for a ‘traditional’ critique of cooperative federalism in Germany, namely that it is prone to blockades and hence political standstill if partisan encroach on federal decision-making. Transport policy has become re-politicized in German party competition. Compromises on the lowest common denominator thwart major reforms and allow for only incremental change.

mobility policy

transport

Bundesrat

political parties

cooperative federalism

Verkehrswende

process-tracing

Transportation policy has become a major line of conflict in German politics and society that is connected to fundamental challenges such as climate change and sustainable cities. While some actors cling to the status quo of privileging cars, others argue for a fundamental reform (Verkehrswende) granting a fair share of scarce space to pedestrians and cyclists. In the German political system these different interests interact in the complex web of cooperative federalism. Using process-tracing, our article analyses how political actors bargained and decided in this complex web about new regulations balancing the rights and sanctions on streets and roads. We show that Germany’s federalism with the second chamber, Bundesrat, proliferates multiple vetoes favoring the status quo in transportation policy. This is likely to hamper reforms towards more sustainable transportation policies.

In Germany, transport policy was long considered an issue with little potential for party conflicts. This situation has changed. On the one hand, infrastructure projects have been in the middle of public debates as their completion was delayed, and their costs were significantly exceeded. Most prominently, the reconstruction of the central train station in Stuttgart had caused mass protests, rallying against the project (e.g., Nagel and Satoh 2019; Novy and Peters 2012). On the other hand, the federal government has calculated that climate neutrality can only be reached by revamping the transport sector because it accounts for around one-fifth of greenhouse gas emissions. In 2019, most transport-related emissions, namely 96 percent, were caused by road traffic (Bundesregierung 2022; Canzler 2018, p. 492). Therefore, the transition towards sustainable transportation and mobility – the “Verkehrswende” – has become a key issue in German party competition (Lehmann et al. 2022, pp. 43–57).

The Verkehrswende goes beyond the electrification of cars. It is also about strengthening alternatives to the car and, therefore, touches upon the cultural hegemony of automobility (Canzler and Radtke 2019). In 2019, the Federal Ministry of Transport and Digital Infrastructure proposed the reform1 of two key ordinances (‘Rechtsverordnungen’) to implement numerous provisions at the expense of car drivers and, at the same time, in favor of cycling and walking. For example, it was planned to better protect cyclists by prescribing a mandatory distance of 1.50 meters when cars overtake bicycles in cities. Driving bans were to be imposed for speeding at 21 km/h in town and 31 km/h out of town, while both speeding fines and fines for parking violations were significantly increased. Although rather technical in its appearance, the amendment of the ordinances appeared to be another “crack in car hegemony” (Haas 2020). To come into force, it must be approved by the governments of the constituent units (Länder) in the Bundesrat, the de facto second chamber in Germany. Eventually, the amendment failed in its original scope. Using the amendment as a particularly instructive case study, we intend to understand how and why party competition and cooperative federalism hamper comprehensive transport policy reforms in Germany.

Unlike the United States or Switzerland where the federal level and the constituent units are each vested with a large degree of autonomy, Germany’s cooperative federalism features the entanglement of the different tiers of government. In most policy areas, including transport (Fichert 2017, p. 2), legislation is predominantly made at the federal level, while the execution of the laws and the administration fall within the remit of the 16 Länder (Behnke and Kropp 2021, p. 35). At the federal level, the Länder participate in decision-making via the Bundesrat that has a decisive say up to an absolute veto. Therefore, policies of the federal government can be blocked in the Bundesrat (for historical examples in transport policy: von Beyme 2007, p. 131). This makes comprehensive reforms complicated, especially when partisan majorities differ in the federal parliament (Bundestag) and in the Bundesrat (Kropp 2021, p. 125). This distinct institutional design of co-decision tends to narrow the scope for political action and has been blamed for thwarting “major policy changes that were seen as adequate responses to the social and economic challenges Germany faced since reunification” (Stecker 2016, p. 606).

As a research field, transport policy has been long neglected by political science in Germany. The research gap can be explained by the fact that 20th-century transport policy has traditionally lain with the distribution of considerable financial resources to build roads, railways and airports; this has directed scientific curiosity to the economic output by economists. In addition, transport policy in Germany is harder than most policy fields to pin down, because of its high degree of multi-level governance (Jungjohann 2019, p. 40).

In our study, we present novel empirical evidence that this claim on the limited capacity of the German federal state to implement and steer wide-ranging policy reforms also applies to transport policy. The analysis unfolds in three steps: First, we present process-tracing as a method in the social sciences and as a tool to unpack decision-making in the Bundesrat. Second, we present the empirical investigation that draws on an extensive collection and analysis of primary sources, including the initial proposal of the amendment by the Federal Ministry of Transport and Digital Infrastructure, the recommendations of the Bundesrat committees and the plenary protocols. Third, we discuss both the process-tracing approach and our findings. The analysis underlines that transport policy has become re-politicized in Germany. First, we find that political parties have made use of their power in the Bundesrat, at both the committee and the plenary level, to influence legislative procedures in accordance with their political agenda. Second, the partisan majority constellations in the Bundesrat have hindered a major reform and allowed for only incremental steps based on the lowest common denominator amongst the political parties. In the conclusion, we outline the implications of our study for transport policy reforms in Germany.

[1] BR-Drs. 591/19.

Process-Tracing in the Social Sciences

Process-tracing has become a prominent method in the social sciences and a “fundamental tool of qualitative analysis” (Collier 2011, p. 823). According to Beach and Pedersen (2013, p. 1), process-tracing aims at analyzing and revealing causal mechanisms in single-case studies. The research interest focuses on the causal mechanisms linking independent variables (X) and outcomes (Y). What is a mechanism? Machamer, Darden and Craver (2000, p. 3) define mechanisms as “entities and activities organized such that they are productive of regular changes from start or set-up to finish or termination conditions.” This definition points to two key elements of any mechanism: entities and activities. Entities are the objects that perform activities due to distinct properties. Activities produce change, moving the mechanism from a starting point to the finish (ibid., pp. 4–5). The interplay of entities and activities characterizes any mechanism.

Drawing on this understanding of mechanisms, Beach and Pederson (2013) advance their popular conceptualization of process-tracing as a social science research method: political actors – in our case, the delegates of the Länder in the Bundesrat and its committees – are the entities that perform certain activities. From the authors’ perspective, the entities can be understood as toothed wheels. Activities, such as voting in the plenary of the Bundesrat, transmit the causal forces through the mechanism, moving the toothed wheels towards a specific outcome. The combination of an entity and an activity constitutes one part of the mechanism. The individual parts of the mechanism, for example part I (composed of entity I and an activity) and part II (composed of entity II and an activity), should be causally linked. Moreover, part I must lead to part II. Otherwise, the mechanism does not work in such a way that it produces the outcome Y (ibid., p. 29f.).

The specific approach to process-tracing depends on the research goal. Therefore, it must be defined at the outset (ibid, p. 11f.). Our goal is to evaluate a theoretically specified causal mechanism considering empirical evidence. That is, a mechanism, linking the strategic interests of political parties in the federal system (X) and the party politicization of Bundesrat decisions (Y). In doing so, we aim at providing empirical evidence that the mechanism works as expected. In the classification of Beach and Pedersen (ibid.), we use “theory-testing process-tracing”. There are two preconditions of this approach: “we know both X and Y and we either have existing conjectures about a plausible mechanism or are able to use logical reasoning to formulate a causal mechanism from existing theorization” (ibid., p. 14). In our case, these preconditions are met. Previous studies have empirically demonstrated the influence of political parties on decision-making in the Bundesrat (e.g., Harle and Stecker 2011; Finke et al. 2020; Souris and Müller 2020). Other contributions have investigated the decision-making procedures in the Bundesrat, mapping the various opportunities for partisan influence (e.g., Jungjohann 2017; Lennartz and Kiefer 2014).

Tracing Decision-Making in the German Bundesrat

For unpacking the causal mechanism, Beach and Pedersen (2013, p. 21) suggest three specific research steps. In the first step, both the mechanism and the context, in which it operates, must be specified. The activities and the units as well as the individual parts of the causal mechanism are conceptualized. In the second step, all elements of the mechanism are operationalized. In the third step, the empirical evidence is gathered and compiled. These three steps allow the researchers to evaluate whether the mechanism works as expected.

Specifying the causal mechanism, we need to identify the relevant actors (and, for collective actors, their composition), their goals and the decision-making rules under which they interact. To identify these components, it is worth considering the official schedule of the Bundesrat that is characterized by a three-weeks-long process. In the first week (“committee week”), the standing committees of the Bundesrat come together and scrutinize the legislation. In the second week (“coordination week”), the Länder governments coordinate their positions on the legislation based on the committee recommendations. This coordination takes place both within the respective governments and between the governments. In the third week (“plenary week”), coordination continues, also at the highest political level and on-site in Berlin. On Friday in this week, the Bundesrat plenary makes the final decisions (Jungjohann 2017, pp. 35–37). The chronological sequence of events does not imply causal relationships. However, it can serve as the framework for more in-depth analyses of causal relationships (Siewert 2017, p. 242).

Starting with the first research step, unpacking the causal mechanism, we propose two parts, each one with different entities and activities. The two-part mechanism is expected to operate in any decision-making procedure in the Bundesrat (Fig. 1). Part I refers to the Bundesrat committees. Most of the substantive work in the Bundesrat takes place at the committee stage. The committees are comprised of the ministers who are responsible for the respective departments in the Länder cabinets. The members of the Environment Committee, for example, are the 16 Länder ministers of the environment. According to the constitutionally enshrined departmental principle (‘Ressortprinzip’), the ministers are responsible for the Länder positions in ‘their’ committee. In the Environment Committee, for example, the positions of the respective ministers of environment are crucial for deliberation and decision-making and not those of the entire Länder governments (Finke et al. 2020, pp. 217). Regarding the operation of Bundesrat committees, the functioning of coalition governments in the Länder comes, hence, close to the analytical idea of

“ministerial dictatorship” (Laver and Shepsle 1990).

The politicians delegate most of the committee work to civil servants in the ministries, who prepare the positions on their behalf and represent them in the meetings. As representatives of their ministers, the civil servants act in compliance with their instructions and must discuss sensitive issues with the management level in the ministries. There is an interplay between bureaucracy and politics. Political parties have established strategies for mutual information and coordination, both at the political and at the working level. Prior to the committee meetings, civil servants meet in groups defined by the party affiliations of their ministers to coordinate partisan positions. Next to technical and territorial considerations, partisanship, therefore, plays a central role in the (voting) behavior at the committee stage (Finke et al. 2020, pp. 217f.). Bundesrat committees make decisions with a simple majority. As the ministers, even from one Länder government, may come from different parties, there may be different party-political majorities in different committees.

Part II of the mechanism refers to the plenary level and encompasses the “coordination week” and the “plenary week”. The Bundesrat committee system is characterized by multiple referrals (Alter 2002), that is, legislative proposals may be considered by different committees. In conjunction with the different party-political make-up of different committees, Länder governments are often confronted with different, sometimes conflicting committee recommendations. In the Bundesrat plenary, the Länder governments must cast their votes en bloc. It is not possible to find a coalition compromise in form of a split vote.

Therefore, the coalition partners need to coordinate how to deal with these conflicts, especially if they have advocated different positions at the committee stage. The internal coordination, as Jungjohann (2017, p. 36) notes, “is overlapped and partly influenced by the simultaneous cross-state coordination of the parties in Berlin. At the end of the week remaining conflicts need to be resolved solely at state secretary or cabinet level.” If coalition partners cannot find a common position, the government will abstain in accordance with the so-called “Bundesrat Clause” that is formalized in the coalition agreements (ibid., p. 27f.). In the Bundesrat plenary, abstentions formally work as ‘no-votes’ as it operates under absolute majority rule.

The plenary makes decisions with an absolute majority. As the Bundesrat is comprised of 69 seats, a proposal requires a minimum of 35 votes to be adopted. The number of votes that each Land has in the Bundesrat plenary ranges from three to six. This distribution depends on population size – but with a large degree of malapportionment (Samuels and Snyder 2001). North-Rhine-Westphalia, with 18 million inhabitants Germany’s most populous state controls 6 votes, while the Saarland, with one million inhabitants, controls three votes. According to the ideas of the framers of the German constitution, this malapportionment shall safeguard the principle of territorial representation (Swenden 2006, p. 75).

The next two research steps refer to the operationalization of the mechanisms and the gathering of empirical evidence. For identifying the party positions on the legislation at stake, we may draw on secondary literature, media reports and manifestos. Regarding our first part of the mechanism, the committee level, data availability is a challenge. The Bundesrat does not publish the latest minutes of the committee meetings (Finke et al. 2020, pp. 222f.). These minutes, comprising the debates among the Länder representatives and their voting behavior, would reveal the extent to which party positions are advocated at the committee stage.

Nevertheless, we can make plausible conjectures about it. While legislation is normally referred to several committees, all of them have equal reporting rights (Alter 2002, p. 301). In contrast to the plenary sessions, each Land has only one vote in the committees and the decisions are made by a simple majority. This results in committee-specific majorities depending on the party affiliations of the ministers in the Länder cabinets (Finke et al. 2020, pp. 218). For example, in September 2020, the Greens participated in 11 of 16 Länder governments. In all these cabinets, the Greens were responsible for the environment portfolio. In 5 of them, the ministers of transport were party members of the Greens. In the Bundesrat, they had a majority in the Environment Committee (11 out of 16 votes), but only 5 votes in the Transport Committee.

Political parties are expected to leverage on their majorities in the committees to push through their preferred positions. Therefore, we analyze both the partisan majorities in the individual committees and the substantive content of the recommendations. The relevant information is publicly available. The document, comprising all committee recommendations (‘Empfehlungsdrucksache’) is accessible via the legal database2 of the Bundestag and the Bundesrat. The committee members and their respective party affiliations can be found on the website of the Bundesrat (the current composition only) and in its annual handbooks.

At the plenary level, the second part of our mechanism, data availability presents a mixed picture. The political coordination in the run-up to the plenary session is ‘a blind spot’, taking place behind closed doors. The stenographic protocols of the plenary sessions are publicly available, but they do not register the individual voting behavior of the Länder. This only occurs in the rare cases when the roll-call votes are requested or obligatory for constitutional amendments (Bräuninger et al. 2010). Recently, Länder governments have started to publish their voting behavior online. These lists have a varying degree of detail, but usually comprise the relevant information. As the last choice, we can also watch the plenary sessions on the Bundesrat’s YouTube channel,3 trying to get a glimpse of the governments’ voting behavior (as they raise their arms in case of support). Combining these different sources, we can evaluate whether the Länder politicians have coordinated party positions on the legislation prior to the plenary session and advocate them there.

[2] The database is available online: https://dip.bundestag.de. Accessed 26 Aug 2022.

[3] https://www.youtube.com/bundesratdeutschland. Accessed 26 Aug 2022.

In the Bundesrat, the amendment of the two ordinances proposed by the Federal Ministry of Transport caused party conflicts. The positions of the political parties differ significantly in the extent to which they aim to cut the privileges of cars in road traffic and want to implement the Verkehrswende by giving priority to alternative means of transportation, especially bicycles. The party manifestos for federal elections in 2021 reveal two sides of the conflict, reflecting the traditional left-right divide (Lehmann et al. 2022, p. 54). On the one side, Alliance 90/The Greens (the Greens), the Left Party and, to a lesser extent, the Social Democrats (SPD) support a comprehensive Verkehrswende. On the other side, the Christian Democrats (CDU/CSU) and the Liberals (FDP) advocate reforms but hold on to the privileged status of the car.4

Using process-tracing and the causal mechanism (Fig. 1), we scrutinize how partisan interests are imprinted on decision-making in the committees and the plenary of the Bundesrat. The analysis is divided into two sections. First, we investigate decision-making in February 2020 when the initial proposal for the amendment of the Federal Ministry of Transport and Digital Infrastructure passed the Bundesrat. Then, we analyze the second round of decision-making in September 2020 that became necessary due to a legal error that was found after the adoption of the original amendment.

Decision-Making in February 2020

The first part of the mechanism refers to the committee stage. To begin with, five Bundesrat committees were involved in deliberations: Transport, Internal Affairs, Legal Affairs, Environment and Agriculture. Figures 2 and 3 present the partisan composition of the committees as well as the partisan majorities. The relevant information was retrieved from the website of the Bundesrat. In each of the committees, there were different majorities. Only in two committees, Environment and Legal Affairs, a single political party had a majority of more than eight votes. The Greens were responsible for the environment portfolio in all Länder governments they participated in. Consequently, they had 11 of 16 votes in the Environment Committee. As 10 of the 16 Länder ministers of justice were affiliated with the CDU/CSU, the party had a majority in the Legal Affairs Committee.

In the other Bundesrat committees that were involved in the deliberation of the amendment, the partisan majorities are more ambiguous. Based on common preferences, there are likely voting alliances that could be formed by the political parties. However, without knowing the committee protocols and the voting results, we cannot be certain whether the political parties have done so and – if there were several options for alliances – which one they have opted for. For example, in the Transport Committee, the two political parties in favor of an ambitious and comprehensive Verkehrswende, the Greens and the Left, would have a majority with the SPD. Yet, the SPD could also forge an alliance with the CDU/CSU – its coalition partner at the federal level at that time. SPD and CDU/CSU would also have a majority in the Internal Affairs Committee.

Another ambiguity results from the fact that Länder governments may appoint several ministers as members of one committee if its issues affect several ministerial portfolios on the Länder level. Nevertheless, the Land has only one vote in the committee. It then depends on the voting matter of which minister is responsible for casting the vote of the Land (Lennartz and Kiefer 2014, p. 182). In the case of coalition governments, the appointed ministers of the Land regularly have different partisan affiliations. In such situations, we cannot assign the vote of a Land to a political party with a sufficient degree of certainty. Therefore, Fig. 3 contains the (fictive) category “mixed”, comprising the Länder which have appointed at least two ministers with different partisan affiliations as members of the same committee.

In one case, we can at least make a plausible conjecture regarding the responsible minister. In the Internal Affairs Committee, the CDU/CSU lacked one vote for a majority. North Rhine-Westphalia had appointed three committee members, two of the CDU and one of the FDP. The latter was responsible for immigration and, hence, for a policy area that has no links to traffic regulation. It is plausible to assign the vote of North Rhine-Westphalia to the CDU/CSU which, under this assumption, had the majority in the Internal Affairs Committee.

Based on this analysis of the partisan composition of and majorities in the committees, we have conducted a content analysis of the legal document5, containing all their 71 recommendations. We coded each committee recommendation on a simplified policy dimension with the poles “pro Verkehrswende” and “against Verkehrswende”. As the committee recommendations aim to amend the proposal of the Federal Ministry of Transport and Digital Infrastructure, this is also the reference point for our coding decisions.

We have categorized all recommendations that change the rights, obligations, and sanctions in favor of pedestrians, cyclists, and environmental protection but to the detriment of motorized private transport as “pro Verkehrswende”. These include, for example, the introduction of a general speed limit and the (further) increase of fines for parking violators. Recommendations in favor of motorized private transport, such as the softening of the distance rules when overtaking cyclists, have been classified as “against Verkehrswende”. Finally, we include a third category, “technical recommendations”, where recommendations are driven by administrative considerations of the Länder ministries. Evaluating the content of the committee recommendations is often challenging and presupposes both substantive and legal knowledge. Hence, three researchers read and coded all proposals independently from one another. Conflicting cases were discussed in the team. Figure 4 presents the result for each committee. Several recommendations were adopted by more than one committee. These joint committee recommendations are listed separately in Fig. 4.

The Environment Committee, dominated by the Greens, only passed “pro Verkehrswende” recommendations. Most prominently, it recommended – as the only committee involved – the introduction of a general speed limit. By contrast, our content analysis shows that all recommendations of the Legal Affairs Committee, in which the CDU/CSU had a majority, were “against Verkehrswende”. The results for the Transport Committee and the Internal Affairs Committee present a mixed picture. While both committees adopted numerous technical recommendations, we register for the Transport Committee more recommendations “pro Verkehrswende” than against it. The recommendations in favor of the Verkehrswende mainly refer to further increases in fines for parking violations. For the Internal Affairs Committee that was dominated by the CDU/CSU, we register more recommendations “against Verkehrswende” than in favor of it. These include demands to roll back crucial improvements for cycling, such as the mandatory minimum distance of 1.50 meters for cars when overtaking cyclists in cities. Taken together, the analysis of the available empirical evidence shows that partisan interests played a central role in the decision-making at the committee stage.

The second part of the mechanism refers to the plenary level. Due to the different voting rules (absolute majority; weighted votes) and the need of the Länder governments to cast their votes en bloc, partisan majorities in the plenary differ from the ones in the committees. Figure 5 summarizes the majority situation in the Bundesrat plenary at the time of our analysis. The Figure reflects the unique interplay of decision rules and political convention, that enables each coalition party to force an abstention and thereby block all votes of the Länder in which it participates in the government.

To recall, this interplay works as follows: The Länder governments must seek an agreement within the cabinet prior to the plenary sessions. The coalitions bring together political parties which advocate different policy positions on the Verkehrswende. If the Länder governments cannot find a common position, they abstain from the plenary sessions. This abstention is agreed upon in the coalition contracts of Länder governments (‘Bundesrat Clause’). As the decisions in the plenary are made by an absolute majority, abstentions de facto count as nays. By invoking the ‘Bundesrat Clause’, each coalition partner can force the government to abstain from the plenary session. For example, the Greens in Saxony-Anhalt, then the smallest coalition partner with 5.2 percent of the electoral vote, can block the four Bundesrat votes of the Land. Figure 5 illustrates that at the time of our analysis, three parties had accumulated veto power in the Bundesrat plenary: the SPD, the Greens and the CDU/CSU.

In the plenary session, there were two speeches on the amendment. Winfried Hermann (the Greens), the Minister of Transport of Baden-Württemberg, called for a paradigm shift in the regulation of road traffic that needs to go far beyond the amendment. Nevertheless, he highlighted the specific improvements of the amendment, especially for cyclists. For the federal government, Enak Ferlemann (CDU), Parliamentary State Secretary to the Federal Minister of Transport and Digital Infrastructure, praised the amendment for its better regulations for cycling and as a good first step towards the comprehensive reform of road traffic.6 In the run-up to the plenary sessions, the political actors appear to have struck a compromise that satisfied all sides.

The Bundesrat adopted seven of 13 recommendations that we coded as “against Verkehrswende” and 21 of the 27 “pro Verkehrswende” recommendations, mainly the ones that refer to increases in fines. The introduction of the general speed limit was not adopted. Figure 6 presents the voting behavior related to the respective recommendation of the Environment Committee. Only two Länder, Berlin and Bremen, which were both governed by a coalition of SPD, Greens and the Left Party, voted in favor of the recommendation. The other Länder abstained due to the ‘Bundesrat Clause’, i.e., the coalition partners could not find a common position7, or voted against the recommendation. CDU/CSU (together with the FDP) successfully vetoed the introduction of the general speed limit.

In summary, partisan interests imprinted on the Bundesrat’s final decisions on the amendment. Decision-making was no zero-sum game of party politics, but it reflected the willingness to compromise that characterizes cooperative federalism in Germany. The final compromise was a carefully crafted and toughly negotiated agreement between the CDU/CSU, the SPD and the Greens. It thus reflected a major political breakthrough.

Decision-Making in September 2020

Just a few months later, the German Automobile Association (ADAC) discovered a formal error in the legal text of the adopted reform. According to the lawyers of the ADAC, the error rendered parts of the reform legally void, namely the newly introduced driving bans and increases in fines for car drivers. This came as a huge surprise and put the ‘bicycle amendment’ back on the agenda of the Bundesrat. Article 80 (1) sentence 3 of the Basic Law requires the legislators to specify the legal basis of ordinances. The ‘bicycle amendment’ did not mention § 26a Number 3 of the Road Traffic Act (‘Straßenverkehrsgesetz’) that is relevant to driving bans. Therefore, the amendment must be legally fixed. Quickly, the question emerged if this fix should only repair the small legal error or if it allows adding even more changes, basically modifying the former compromise.

In September 2020, the Bundesrat again dealt with road traffic regulations. To begin with the first part of the mechanism, four committees were involved in deliberations: Transport, Internal Affairs, Environment and Agriculture. According to the legal documentation8, The committees adopted 21 recommendations. The first 19 recommendations refer to technical questions of implementing new requirements of the European Union. The last two recommendations, 20 and 21, were the controversial ones as they deal with fixing the error regarding the legal error of the ‘bicycle amendment’. One recommendation was adopted by both the Transport Committee and the Internal Affairs Committee, while the other one by the Environment Committee.

The recommendation of the Transport Committee and the Internal Affairs Committee aimed to repair and modify the ‘bicycle amendment’. Prior to the decision-making in the Bundesrat, the CDU/CSU and SPD had agreed on a compromise that would weaken the penalties originally envisaged for speeders. While fines for speeding should still be raised marginally by €25 to €120, the driving bans were considerably rolled back: In the original proposal driving bans were applied for all speeders exceeding the limit by 21 km/h within cities. According to the compromise of the CDU/CSU and SPD, this should only apply to repeated violations or to violations in designated areas, such as schools and kindergartens. The SPD and CDU/CSU jointly had a majority in both committees (see Figs. 2 and 3) which pushed for this ‘reform of the reform’. On the contrary, the Environment Committee, dominated by the Greens, pleaded for the 1:1 repair of the original ‘bicycle amendment’ – with a new entry formula without the legal error. To sum up: The two committee recommendations clearly reflect the respective partisan majorities.

Based on these conflicting committee recommendations, there are clear expectations for the plenary level, the second part of our mechanism. Unless the political leaders strike an eleventh-hour deal, both recommendations would be voted down in the Bundesrat plenary (see Fig. 5). The Greens would veto the compromise of SPD and CDU/CSU, while these two would block the 1:1 repair.

In the plenary debate9, Hermann (the Greens) pointed out that the Bundesrat decision in February 2020 was already a compromise that had resulted from comprehensive intergovernmental and cross-party coordination. According to Hermann, it was “quite astonishing […] that a decision, which was made after long discussion by almost everyone in full awareness, is called into question again after a few weeks, as if the decision had been made unconsciously, without knowing the objections” (translation by the authors). On the other hand, Hermann announced on behalf of the Greens that they would not support the compromise proposal of SPD and CDU/CSU. Anke Rehlinger (SPD), Minister of Economics, Labor, Energy and Transport of the Saarland, countered that the fines for car drivers had gone too far in the ‘bicycle amendment’ and defended the joint proposal of SPD and CDU/CSU.

This time, the political leaders would not strike a compromise. As the political parties insisted on their respective positions, both committee recommendations eventually failed in in the Bundesrat plenary. The proposal of SPD and CDU/CSU was supported by the, at that time, five Länder governments without the participation of the Greens. Berlin and Bremen, both governed by SPD, Greens and the Left Party, were the only Länder which voted in favor of the 1:1 repair.

To overcome the political standstill, decision-makers aimed at striking a compromise outside the Bundesrat. Delegating politically sensitive issues to ministerial conferences has traditionally been a promising strategy to resolve ‘blockades’ in the Bundesrat (Hegele and Behnke 2017). The ministerial conference of the Länder transport ministers eventually reached a compromise (Verkehrsministerkonferenz 2021, p. 73–76). In September 2021, the legally non-binding, political agreement of the conference of the transport ministers was formalized in the Bundesrat (BR-PlPr. 1009, pp. 424–427).

[4] The Alternative for Germany (AfD) does not participate in any government in the Länder. Hence, it is not represented in the Bundesrat. Regarding the Verkehrswende, the AfD is committed to keeping everything as it is, especially the privileges for motorized individual traffic (Lehmann et al. 2022, p. 47).

[5] BR-Drs. 591/1/19.

[6] BR-PlPr. 985: 36ff.

[7] A special case was Thuringia. Due to a government crisis, Thuringia had no representatives sent to the plenary session of the Bundesrat. The Land did not participate in voting at all.

[8] BR-Drs. 397/1/20.

[9] BR-PlPr. 993: 329-331.

The process-tracing approach has proven useful in capturing and analyzing decision-making in the Bundesrat. Due to the opaque or even lacking documentation of its internal procedures, which complicates the attribution of responsibility to individual actors, the Bundesrat has been described as a ‘black box’ (Souris and Müller 2020, p. 2). Process-tracing allows for a fine-grained investigation of how and to what extent political parties influence decision-making at the various stages. The mechanism worked as expected: political parties make use of their majorities in the committees to push through recommendations in accordance with their agendas. In the run-up to the plenary, the politicians aim at balancing the various (partisan) interests, both within the Länder governments and between the governments. The first round of decision-making on the amendment reflects the political culture to compromise inherent to cooperative federalism that traditionally characterizes Germany. While the decision of the Bundesrat plenary on the amendment was subject to a certain degree of party politicization, it did not reflect a zero-sum game of party politics.

In September 2020 when crucial parts of the amendment were again on the agenda of the Bundesrat, decision-making was highly politicized. Interest groups and lobbyists, especially the ADAC, weighed in the political debate, while both the legal error and the consequences for car drivers in the original proposal were broadly covered in the media. Moreover, the political parties already prepared their election campaigns as in 2021, several Länder elections and the federal election were scheduled. As the Greens, the SPD and the CDU/CSU insisted on their respective positions, the Bundesrat was unable to fix the legal error of the originally adopted amendment. Ultimately, the Länder ministers of transport bargained a compromise on the lowest common denominator that fell significantly short of the original proposal.

Our analysis highlights how transport policy as a politicised policy area has been dealt with in the federal system of Germany. Transport policy is characterized by divergent partisan interests. While conservative parties adhere to the status quo, that is privileging cars over cyclers and pedestrians, left and green parties favor a Verkehrswende, a fundamental shift of the current policy paradigm. Legislations and regulations on traffic stand in the center of the political conflict as they affect almost all citizens in their daily lives.

For implementing a Verkehrswende via legislation, the federal system proves to be both a curse and a blessing. On the one hand, it can be an advantage to design extensive and complicated reforms such as the ones envisaged by the Verkehrswende. The Länder governments and administrations can contribute their expertise and local experience to the federal legislation via the Bundesrat and its committees. As the legislation is adopted at the federal level, it ensures coherent rules and provisions across the country. On the other hand, our case study on the amendment of the traffic regulations finds novel empirical evidence for a ‘traditional’ critique of cooperative federalism in Germany (Lehmbruch 2000), namely that it is prone to blockades and hence political standstill if partisan politics encroaches on federal decision-making. Compromises on the lowest common denominator thwart major reforms and allow for only incremental change.

The dispute over road traffic regulations has not been settled in the long term and will remain a contentious issue.

Acknowledgements

The authors thank the participants of the conference “Renaissance der Verkehrspolitik” (Renaissance of Transport Policy) for the fruitful discussions and valuable feedback on an earlier draft of the paper. We also thank Thilo Dieing, Isabelle Kohl and Tim Rieth for valuable research assistance and helpful discussions.

Funding

Not applicable.

Author contributions

AS is the lead author of the paper. He drafted the Background. AS and CS implemented the empirical analysis and interpreted the results. AJ revised and complemented the empirical analysis. AS and CS drafted the Discussion and Conclusion. All authors revised the manuscript prior to submission.

Availability of data and materials

Data available by the corresponding author upon reasonable request.

Ethics approval and consent to participate

Not applicable.

Consent for publication

Not applicable.

Competing interests

The authors declare that they have no competing interests.

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Two Steps Forwards, One Step Back? Party Competition, Cooperative Federalism, and Transport Policy Reforms in Germany

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Abstract

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Summary

Background

Methods

Process-Tracing in the Social Sciences

Tracing Decision-Making in the German Bundesrat

Results

Decision-Making in February 2020

Decision-Making in September 2020

Discussion

Conclusions

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References

Additional Declarations

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Journal Publication

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