Home Law Constitutional Sunsets and Experimental Legislation: A Comparative Perspective
To Improve the Effectiveness of Public Administration
Sunset clauses were originally depicted as ‘a cure-all to the ills of inefficient government’. A general discontentment with the performance of government and the uncontrolled growth of administrative agencies was at the root of the enactment of sunset clauses. However, the United States was not the only country facing problems at this level.
Since the late 1980s, there has been a growing awareness of the multiple problems of the German public administration: excessive administrative burdens, budgetary problems and lack of transparency. A deep reform of the German public administration was put into practice, especially in the 1990s. There was an essential shift from the so-called ‘control perspective’ (strict legislative standards imposed on the public authorities and control by courts for the safeguard of individual rights) which prevailed in administrative law until that time, to a governance perspective (Steuerung). According to this new insight, administrative law should provide public actors with the means and tools to effectively implement legal principles and rules and, at the same time, allow them to use their resources as efficiently and economically as possible. This explained the emergence of the ‘New Public Management’. In the German context, the practical implementation of this public administration management focused on the autonomous administration of municipalities.
In the 1990s, German municipalities (Kommunen) were facing two types of growing challenges: on the one hand, financial problems, and, on the other, increasing demands to develop a closer relationship with citizens. The modernization of local municipalities conducive to more ‘citizen-friendly’, flexible and transparent policies was then required. The solution to the mentioned problems resided in an enhancement of local autonomy, in other words, municipalities could administrate their own finances according to their needs. The Neues Steuerungsmodell, as a new output-oriented model based on the self-government of municipalities, was suggested in this context.
Two experimental legislative instruments were used by municipalities in Germany to proceed to experiments: Experimentierklauseln and Stand- ardoffnungsklauseln. Municipalities highly in deficit opted for these dispositions, which, in most cases, exempted them from observing stricter rules or legal standards contained in state regulations and gave them more leeway to determine their own policies.
The use of experiments at the local level aimed at diminishing the burdens faced by private actors and improving the relationship between the local administration and citizens. An example can be found in Brandenburg: the Standard-erprobungsgesetz of this state was designed to reduce the administrative burdens faced by citizens and companies, and tackle the excessive bureaucracy and inefficiency of public administra- tion. This Act allowed municipalities to derogate from state regulations and experiment with new forms of executing state standards. They were still bound by the state goals but not by the means to achieve them. By granting this possibility to municipalities, it was expected to spur entrepreneurial action and stimulate business start-ups. Budgetary problems have been one of the grounds for the enactment of experimental legislation, not only in Germany but also in other countries. It is thus important to explain how and why these experiments have performed an important role in this context.
The choice of experimental legislation has not always been unreservedly accepted in Germany. Former Minister of Justice of Saxony, Steffen Heitmann, once stated that deregulation and the reform of public administration did not require the use of temporary laws, because unnecessary laws could just as easily be abolished without deadlines. According to Heitmann, this ‘deadline’ inserted in temporary laws would inevitably damage legal certainty and constituted a considerable threat to the Rechtsstaat. This objection will be further analyzed in Chapters 3 and 4 as two of the possible arguments against a broader use of experimental legislation.
German municipalities were not the only local authorities turning to experimentation in order to overcome their financial problems. The same tendency is being observed in the last decades in the United States. As illustrated in example 2.8, the adoption of charters by cities and county governments has granted them more autonomy and created more room for experimentation with the organizational instruments and programmes that fit their budgets and needs.
EXAMPLE 2.8 EXPERIMENTS WITH
OUTSOURCING PUBLIC ADMINISTRATION
In recent years in California, a number of municipalities have been trying to avoid bankruptcy by experimenting with outsourcing of traditional public services. This is the case of Maywood, which even outsourced its police department. The aim of this experiment was not to verify whether outsourcing is ‘a good idea’, but rather to provide information on the possible functioning of small municipalities without public services. This is an ongoing experiment which might potentially lead to an improvement in the quality of services such as police and education and to a reduction in the budgetary deficits of municipalities with financial problems.
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