Constitutional Policy in Multilevel Government: The Art of Keeping the Balance. Benz, Arthur In collaboration with DominicHeinz, EikeHornig, AndreaFischer‐Hotzel, JörgKemmerzell, and BettinaPetersohn. Oxford, Oxford University Press (2016), 270 p., ISBN 978‐0‐19‐878607‐8

Scholars of federalism and multilevel governance have shown a long interest in the question of stability and instability (e.g., Bednar 2009; Braun et al. 2017; Filippov et al. 2004; Landau 1973; Riker 1964). In this book, Arthur Benz examines how constitutional policy affects the stability of federal and multilevel systems. In this sense, the book is another outcome of Benz’ interest of many years in the dynamics of federalism (see also Benz and Broschek 2013a). Claiming “that the key to maintaining a flexible balance of power lies in constitutional policy” (p. 3), Benz aims to identify explanations of successful constitutional change. Drawing on the comparison of failed and successful constitutional reforms in federal (Austria, Belgium, Canada, Germany, Spain, Switzerland) and regionalized (France, Italy, UK) states that vary in their constitutional set-up, amendment rules, and the constitutional problems they faced, the book contributes to building theory on the dynamics of federalism. The author relies on official documents, interviews, questionnaires distributed to experts, written reports, and Benz’ own participation in reform negotiations to trace processes of constitutional reform in the 1990s and 2000s. Within this qualitative approach, assessments and evaluations rely on the in-depth case knowledge of the contributors involved in the book project. The author explicitly states in the introduction that the book aims to enhance our understanding of federalism and not to provide advice to policy makers – though, of course, there are lessons to be drawn from the findings. Refuting the arguments of historical and actor-centered institutionalism that constitutional policy is doomed to either gradual change or deadlock, Benz contends that considerable constitutional change is possible. However, the extent to which it is effective is contingent on a number of factors that the book seeks to identify. The main argument is that “the way constitutional negotiations are framed and organized” (p. 5) determines the extent to which constitutional change effectively restores the balance of power. Chapter 2 poses the theoretical framework guiding the empirical analyses in the remaining parts of the book. It recalls the basic problem of multilevel systems that Benz has already examined elsewhere (e.g., Benz and Broschek 2013b), namely the ongoing quest for the right balance of power and the need to adjust it to “public opinions, political judgments and collective decisions” (p. 9). Constitutional policy is considered a crucial means to keep such systems in balance. Facing a trade-off between rigidity and flexibility, however, it can only be successful if it produces “a balanced but flexible structure” (p. 16). The theoretical framework largely builds on the idea that constitutional policy needs to be distinct from ordinary policy-making and be organized in such a way that favors consensus building over bargaining and confrontation – even though this comes with a trade-off regarding ratification chances. In line with his argument regarding the weak explanatory power of amendment rules and veto players, the author contends that constitutional policy can restore the federal balance of power even when formal amendments of the constitution are rejected in ratification. In short, chapter 2 builds the argument to be tested that the way negotiations are organized determines the effectiveness of constitutional policy as measured by the scope of a reform and its substance. Claiming that the effectiveness of constitutional reform needs to be assessed in reference to the initial reform agenda determined by the constitutional problem faced by a federal or regionalized system, chapter 3 finds performance problems leading to suboptimal policy outputs in Austria, France, Germany, Italy, and Switzerland. Belgium, Canada, Spain, and the UK are found to be faced with integration problems emanating from the divided character of their societies mostly. Chapter 4 constitutes the main part of the book. By carefully tracing the reform process in each country to identify the constitutional problem, the coupling of arenas, the sequencing of negotiations, and bargaining modes, Benz shows how Canada and Switzerland successfully restored the federal balance of power, despite ratification failure in Canada. In all the other cases, integration or performance problems persisted. He then compares the outcomes of the different reforms. While the scope of reform was modest in Austria, Belgium, France, Germany, and partially in Spain and the UK, reforms in Canada, Italy, and Switzerland led to significant changes. As for their substance, the constitutional reforms adopted in France, Germany, and Italy left several aspects of their respective performance problems unresolved. What is more, in all three cases constitutional reform has enhanced the rigidity of the constitutional framework, which is yet another indicator of the lack of effectiveness of these reforms. Reform in Canada, on the other hand, has ensured the flexibility of the federal system while solving the integration problem. In Belgium, Spain, and UK, finally, constitutional reform even intensified integration problems and is thus considered unsuccessful. As a preliminary conclusion, the author considers the Canadian and Swiss cases to confirm his expectation that arena and sequence differentiation are conducive to effective reform. Party competition was largely absent – in contrast to the other cases, where party confrontations reduced the scope and substance of constitutional policy. Having established this, Benz takes a closer look at the effect of amendment rules. Chapter 5 draws on the empirical evidence presented in chapter 4 and complements it with data on amendment procedures and veto players to show that ratification rules cannot explain the effectiveness of constitutional policy; they merely determine the likelihood of ratification. What is more, “exactly those conditions identified for favoring successful negotiations increase the risk of ratification failure” (p. 230): a loose coupling of arenas reduces the control of the ratification process by the actors participating in the negotiation of reform proposals. Negotiators thus must produce a large consensus to sell the reform and ensure ratification by popular vote. Again, Switzerland stands out as a positive example. Party politics can tighten the coupling of negotiation and ratification, as was the case in Austria and Belgium, for example. Such tight coupling is likely to reduce the effectiveness of constitutional policy since veto anticipation leads to package deals and agreements at the lowest common denominator. Because arena and sequence differentiation foster consensus building in the negotiation process, effective constitutional negotiations can successfully restore the federal balance of power even when ratification fails. In chapter 6, Benz uses the Canadian example to show that implicit change is effective if it can draw on norms and principles agreed upon in constitutional negotiations aiming at formal amendment. Such implicit change formalized in intergovernmental agreements, for example, “made it easier for Quebec to remain in the Canadian federation” (p. 182). Despite the formal rigidity of the Canadian constitution, implicit change increased the flexibility of constitutional policy and made Canadian federalism more robust. The German case is studied in-depth as an example of “(h)ow a constitution evolved in processes of implicit constitutional change when no guiding norms or principles have been negotiated” (p. 185). In contrast to Canada, the interplay of implicit change and formal amendment made German federalism more rigid because arenas were tightly coupled and sequence differentiation lacked: implicit change spurred by judicial interpretation led to the de-politicization of constitutional politics and over-regulation of the constitution. Wrapping up the findings of the previous chapters, chapter 7 contrasts the findings of the empirical part with the theoretical framework. Drawing on Qualitative Comparative Analysis, configurations of the different conditions relating to the organization and context of the negotiation process are examined. The results confirm the initial assumption that the loose coupling of arenas, arena differentiation, and the sequencing of negotiation processes are the main conditions for effective constitutional policy. This is with the exception of regional differentiation, which leads to asymmetric solutions that, when not underpinned by a large consensus on principles, induce instability. Context factors such as the type of problems, features of the party system, government turnover, and time pressure do not have a systematic effect. The book thus identifies features of constitutional negotiations that are conducive to effective constitutional change. Bringing them about is considered an art, namely the art of designing negotiation processes that do justice to the complexity of constitutional policy in multilevel settings. By studying constitutional policy as a complex process and by focusing on the organization of constitutional negotiations, the book makes a valuable contribution to the quest for federal robustness (Bednar, 2019), a research agenda that is still in the making. Because the book leaves implementation aside it is difficult to determine the extent to which constitutional policy restored the federal balance in the long run, however. Indeed, the success of constitutional change ultimately depends on the degree to which normal policy-making adjusts to a changed constitutional framework. The book refers to federal stability as a rather abstract concept – as most contributions to the topic do. Though certain processes can be clearly detected as instances of instability, others are more difficult to assess. Future research could focus on the operationalization of federal stability and aim to provide measurements based on clear indicators that increase the reliability and replicability of assessments.

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