Constitution and Democracy

Bern, Bundeshaus, Ständeratssaal. Foto/Photo: Wikipedia.

The Council of States

The parliamentary system consists of two chambers. This article focuses on the Council of States or Ständerat (Kantonskammer, Zweite Kammer, Kleine Kammer, Senate, Chambre de réflexion). The other chamber, the National Council, Nationalrat,  (or Volkskammer, Erste Kammer, Grosse Kammer) will be discussed in the next article. In this contribution, a brief review is given of the history, role, and place in the constitutional system and functioning of the Council of States.

When the new Constitution was written in 1848, it was not self-evident that the Council of States would be created. It owes its existence in particular to the Sonderbundskrieg of 1847. In this last (civil) war on Swiss territory, Catholic-conservatives from predominantly rural cantons (Uri, Schwyz, Unterwalden, Wallis, Zug. Lucerne, and Fribourg) opposed the liberal (which is different from democratic) Protestant trading and industrial cantons (led mainly by Bern, Basel, and Zurich) of the Eidgenossenschaft (Vaud and Neuchâtel were neutral).

In 1848 Switzerland was not yet the service and industrial nation that it would become in the decades after 1848. Agricultural was opposed to trade, Catholic to Protestant, (rural) conservative to (urban) liberal. However, the Swiss civil war was to have a little number of casualties and numbered even fewer days of warfare, mainly due to the reconciliatory attitude of the victors.

After this civil war, the insight grew that the losers, the minority of (Catholic) rural cantons, also had to have a real voice in the confederation, as did the linguistic minorities (French and Italian, Romansh was only recognised as the fourth language in 1938). The federal counterweight of the representative federal parliament, chosen by the male population in general elections, was the Council of States, chosen by the (male) inhabitants of each canton. There were 44 seats for the twenty-five cantons. Two seats for the nineteen cantons and six seats for the six half cantons. The new canton of Jura has two seats (1979), bringing the total of seats to 46.

Men and women directly elect the Council of States according to the electoral law of each canton (nowadays based on the Majority system (Majorzsystem (the absolute majority wins) except in Vaud and Neuchâtel where there is the proportionality system (Proporzsystem, the proportionality of the votes). The political parties will not be discussed now, but people vote on members of political parties, mostly the same as the parties in elections for the National Council. The Council of States is formally based on the Milizsystem with half-time politicians. The trend, however, is towards more full-time politicians.  Each canton has the same vote regardless of religion, number of inhabitants, or the economy.

What is unique about the Swiss Council of States is the full equality with the National Council: in legislation, federal budget, control and the appointment of the government and federal administration, and the appointment of federal judges. The Council of States is indeed the cantonal federal counterpart of the federal representative National Council. Whether the Council of States fulfills the expectations of the founders in political life is another question, to be discussed in subsequent articles.

The Council of States meets separately from the National Council (except when electing the government, federal judges/administrators, and, in times of war, the Supreme Commander (General) of the armed forces). Both bodies meet quarterly in the Federal Palace (Bundeshaus/Palais fédéral) in Bern. Federal laws are not subject to constitutional review by the (highest) judge. The parliamentary instruments of the Council of States are discussed in the article on the National Council because they are identical. In both bodies, there are nine committees, which work together with the Federal Council, experts, departments and (interest) organisations, and two committees of (financial) supervision. Both bodies elect a president and vice-president for a maximum period of one year—the consistent and successful choice in the Swiss Constitution to counter the concentration of power.

The Council of States holds a prominent place in the legislative and decision-making process and the monitoring of and cooperation with the government and its (seven) departments. The political relationship with the cantons, the cantonal governments, and the cantonal parliaments will get attention in other articles. The members of the Council of States vote as independent members of a federal body without any instruction of the cantons (Instruktionsverbot). It is precisely on this point that the Konferenz der Kantonsregierungen (KdK) in Berne, founded in 1993, has a vital role to play. The complaint was that members of the Council of States were rather independent federal politicians than representatives of the cantons. As a result, the cantons often had too little, too late, and too limited influence in the national legislative process. The KvK proved to be an excellent remedy for this shortcoming.

The Council of States can be the initiator of legislation or can be the first to deal with a proposal or decision of the Government. The Council of States is then the Erstrat, but Zweitrat when the National Council is the first in this respect. The presidents of the Council of States and the National Council draw up a schedule. Over the last decades, the Council of States has taken a small lead over the National Council and is Erstrat in 55% of the cases (many hundreds a year).

Both chambers must fully agree on every letter and comma. In case of disagreement, there is first a Differenzbereinigungsverfahren, a procedure to reach an agreement with a maximum of three subsequent efforts. They usually succeed to bridge the differences. If this is not the case, an Einigungskonferenz is the last resort to agree. Thirteen members of each body discuss, compromise, and almost always reach an agreement. It is the end of the legislation when they fail, which rarely happens. These lengthy consultations are necessary because direct democracy always lurks.

The Council of States plays an equally or even stronger political role nowadays as the National Council. Its political importance and prestige are also shown by the number of former members of the National Council who have a seat in the Council of States. The opposite hardly happens anymore.

Like any democratic system, this system and the Council of States have shortcomings and gaps, It is not disputed, however, that this federal body plays an indispensable role in the parliamentary system and cohesion of the multicultural society. It shows, once more, the value of the functioning of (direct) democracy in Switzerland.