Second Chambers as Federal Chambers

In one line

A second chamber is a federal safeguard only if the units control who sits in it and if it can stop what they object to, and only two of the six meet both tests.

In the wording a student can write in an exam: the federal function of a second chamber depends on three things, whether its composition gives the units equal or weighted representation, whether the units control the selection of its members, and whether its consent is required for measures affecting them.

The three tests

Composition: equal or by population? Equal representation treats the units as units; representation by population treats them as collections of people and reproduces the lower house.

Selection: who chooses? If the people choose, the chamber represents the people of the unit. If the unit's government or legislature chooses, it represents the unit as a polity.

Power: can it stop anything? A chamber that can only delay is a revising chamber whatever its composition.

Applying the tests

United States Senate. Equal: two per State regardless of population, and Article V protects that against amendment without the State's consent. Selected by the people of the State since the Seventeenth Amendment, which weakened the federal character, since senators were previously chosen by State legislatures. Powerful: equal legislative power with the House under Article I section 7, and exclusive powers of confirmation, treaty consent and trying impeachments.

Two tests passed clearly, one qualified.

German Bundesrat. Weighted: three to six votes by population under article 51. Selected by the Land governments, which appoint and recall its members and whose votes must be cast as a block, so it represents the units as polities more completely than any other chamber here. Powerful: its consent is required for a large class of legislation affecting the Lander, and article 77 provides for the Mediation Committee where the two chambers differ.

All three tests passed, and it is the model federal chamber.

Swiss Council of States. Equal: two per canton, one per half-canton, under article 150. Selected as each canton determines, which in practice means popular election. Powerful: article 148(2) makes the two Councils equal and article 156(2) requires the agreement of both.

Two passed clearly, one qualified for the same reason as the Senate.

Indian Rajya Sabha. By population: the Fourth Schedule allocates thirty one seats to Uttar Pradesh and one to several small States and Union territories. Selected by the elected members of the State Legislative Assemblies under article 80(4), which is a federal method, though members vote on party lines and the residence requirement was removed in 2003. Weak: a Money Bill under article 109 gets fourteen days and recommendations only, and any other disagreement can be resolved against it in a joint sitting under article 108.