Federalism, Feminism and Multilevel Governance

Marian Sawer, Melissa Haussman

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9780754677178
• eBook ISBN:
  9781317136088
• Topic: Politics & International Relations
• Subtopic: Comparative Politics
• Index: Politics & International Relations

Until recently, few gender scholars took notice of the impact of state architecture on women's representation, political opportunities, and policy achievements. Likewise scholars of federalism, devolution and multilevel governance have largely ignored their gender impact. For the first time, this book explores how women's politics is affected by and affects federalism, whether in Australia, Canada, India, Mexico, Nigeria, Russia or the US. Equally, it assesses the gender implications of devolution and multilevel governance in the European Union, including case studies of the UK and Germany. Globally, multilevel governance is providing new arenas for women's politics. For example, CEDAW (the UN Convention for the Elimination of All Forms of Discrimination against Women) has led most governments to adopt gender-equality norms while other UN instruments have supported Aboriginal self-government. Gender scholars will find especially valuable what is revealed about the impact of political architecture on a broad range of policy issues, including gay marriage, reproductive rights and childcare. Federalism scholars will benefit from the book's wide range of cases, comparative themes and combination of gender and federalism perspectives. Written by leading experts, this book fills an important gap in both literatures.

Part I

Chapter 1 Introduction: Political Architecture and its Gender Impact

Marian Sawer and Jill Vickers

DOI: 10.4324/9781315582085-1

The global challenges of the twenty-first century, from climate change to biosecurity and international financial crisis, are generating new perspectives both globally and locally. There are new literatures on multilevel and global governance, the spatial dimension of politics and the nesting of institutions at national, transnational and supranational levels. To what extent have these literatures addressed the gender issues involved in political architecture? A burgeoning literature has indeed appeared on how women's movements have adapted to new political opportunity structures, whether these come from the transfer of decision-making upwards to supranational bodies, downwards to regional or local bodies, or from the off-loading of functions to non-government actors (Banaszak et al. 2003a, Meyer and Prügl 1999). Relatively little attention, however, has been paid by feminist scholars to other aspects of political architecture, such as how functions are shared or divided between different levels of government, in unitary, devolving or federal systems; or the effects of such arrangements on women's politics. Moreover, despite the huge literature on federalism, and the fact that federalism is often proposed as a means of managing conflict in new democracies and plural societies, the impact of federalism on women's politics is largely neglected. Exceptions are noted by Gwendolyn Gray in this volume.

Our book stresses the importance of differing institutions, practices and discourses at the various levels of multilevel governance systems. It explores the influence of political architecture on how women's movements organise and the language they use when they make gendered claims. It focuses especially on how changes in political architecture affect women, whether these changes involve downloading, uploading or off-loading. It also observes the importance of timing in the creation of new institutions and whether processes such as devolution or regional integration occur at a time of feminist mobilisations inside and outside political institutions.

There is little existing theoretical work on which to draw for the purpose of analysing the gender impact of state architectures. The long-established federalism literature ignores issues of gender while for the most part feminist political science has neglected political architecture. For example, accounts of the ‘women friendly’ Nordic democracies rarely mention their relatively powerful and autonomous local government (but see Stokes 2005: 194–6). Taking for granted or naturalising our own system of government, while a common human failing, distorts how we perceive the institutional choices available to women in the world of politics. The advantages and disadvantages of a specific political architecture aren’t assessed from a feminist perspective; nor are the gender impacts of federalism or multilevel governance sufficiently explored.

Federations and federalism theory

Of the various forms of multilevel governance considered in this volume, powers, responsibilities and resources are most formally allocated between levels in federations, or at least between those levels that are parties to the federal compact. From the formation of modern federations, in the eighteenth century, their properties have involved a formal power-sharing agreement between a federal government and constituent units such as States or provinces, recorded in a written Constitution. An umpire is appointed – usually a superior court – to resolve conflicts. Federations may have a parliamentary system, with power concentrated in a fused executive and legislature, or a congressional system where power is separated between legislature and executive. The older federations date from long before women were able to exercise political influence and often have ‘rigid’ Constitutions that are difficult to change.

Federations have several additional characteristic features. To begin with, the differing government units that were party to federation have some guarantee of continued existence. Where resources such as taxation powers are divided between government levels, the autonomy of constituent governments is greater. But this can also cause imbalances between rich and poor parts of the country and requires policies of fiscal equalisation from the centre, if there is to be equitable access to services across the country.¹

1 In Australia, which has the most comprehensive system, fiscal equalisation is administered by an arms-length body that takes into account not only the differing capacity of the constituent governments to raise revenue, but also the differing costs of providing services, given geography, the age structure of the population and the proportion from culturally and linguistically diverse backgrounds.

In addition to fiscal equalisation, which determines the level of general purpose grants to constituent units, federal governments also use their superior financial resources to make ‘special purpose grants’ with conditions attached. Extensive use of conditional transfers, results in many responsibilities becoming shared.² Feminists are likely to support such use of financial power if it is tied to, for example, the provision of women's services or the application of gendered performance indicators. Feminists who identify with a regionally-based nationalism, however, may place greater trust in the ability of the government in which their community forms a majority to deliver women-friendly outcomes.

2 In the US, as shown in this volume by Miriam Smith and Melissa Haussman, important decisions of the Supreme Court have vetoed such sharing on federalism grounds in several important policy areas.

Based on hypotheses from comparative federalism scholarship, there are at least seven systems effects resulting from the existence of multiple levels of government: (1) relations between governments at different levels are either predominantly competitive or collaborative, perhaps depending on the party composition of the respective governments; (2) relations among constituent governments at the same level are also either predominantly competitive or collaborative (again affected by party or by resource issues such as access to water); (3) multiple governments create more sites and opportunities for citizens’ participation and more points of access to decision-makers; (4) competition between governments may produce policy innovation; (5) more governments mean more candidates and officeholders are needed; (6) with more sites for activism, movement organisations must either find ways to address all levels, or make strategic choices about which level they will focus their activism on; (7) the specific division of powers between levels or the existence of resources also affects where organisations focus their efforts.

Some scholars think federalism enhances citizenship because more public authorities, governing the same number of people, provide more sites for participation and more opportunities for representation. The idea that federalism offers the possibility of dual citizenship is usually accompanied by the notion that the smaller scale of constituent units of government will promote more socially inclusive participation, particularly by women with family responsibilities. While the subsidiarity principle was articulated and given legal substance in Europe, it has been of much broader influence.

The idea that federalism multiplies the possibilities for political participation overlooks two points: first that local or regional government may be weaker in federal systems; second that women may not be more attracted to ‘local’ rather than ‘national’ levels of government.

It is the nature of their Constitutions that differentiate federations from other multilevel systems. There is a written pact which records the agreement regarding the division of powers between levels; how constituent governments will be represented in the institutions of the federal government; and the dispute-resolution mechanism the parties agree to establish; usually a superior court. In a federation sovereign power is shared between the federal government and constituent units.³ The written pact may or may not specify details of the system of government; but it must specify details of the federal system if the power-sharing ‘deal’ is to outlive its founders, because it conveys their intentions to future generations.

3 In more recent federations, the powers of local governments may also be included in the written Constitution.

Changes in the formal power-sharing arrangements expressed in the written Constitution may not be easy to achieve, requiring the consent of the parties, judicial reinterpretation or complex amending processes, often including referenda. Some political scientists (e.g. Sawer and Vickers 2001, Chappell 2002b) have begun to explore organised women's experiences with this formal process of changing written Constitutions. Effective engagement is of great significance, given that some gender scholars believe women's policy demands will never fit into the jurisdictional policy boxes constructed by the Constitutions of the old federations (e.g. Trimble 1991: 87).

Federations also have characteristics that distinguish them from each other. They include: the federation's age; uniformity or diversity in relations between regional and federal governments; the saliency of territory; the extent to which powers are concurrent or exclusive; the number of constituent governments and whether their interests are advanced through the intergovernmental institutions of federalism (premiers’ and ministerial conferences and standing committees of officials) or through parliamentary institutions such as senates. Divisions of powers differ across federations, but the key differentiating feature is whether government powers are mainly compartmentalised, as in classic ‘layer cake federalism’, or mainly concurrent as in ‘marble cake’ federalism, the more common form today.

The superior financial resources of the federal level and the pressures of globalisation mean that in many federations (as in other forms of political architecture) decision-making is increasingly of a shared nature. Intergovernmental decision-making generally takes place behind closed doors without community consultation or legislative deliberation, despite attempts in federations such as Australia and Canada to establish some parliamentary oversight (Sawer et al. 2009: 304–5, 310).⁴ Such intergovernmental decision-making may or may not serve women's interests, depending who is behind the door.

4 In Canada, limited consultative mechanisms with non-government actors have also been instituted by two intergovernmental bodies, the Council of the Federation and the Canadian Council of Ministers of the Environment (Simmons 2008).

An important characteristic that differentiates federations is whether power is shared symmetrically between the federal and constituent governments; or asymmetrically with one or several constituent governments having more or different powers. Asymmetrical relationships usually reflect the importance of ‘incongruent’ territorially-based identities or nationalisms in one or several regions, while symmetrical relationships tend to reflect socio-cultural ‘congruence’ among the constituent units. The salience of territorially-based identities has an important impact on women's politics. Indeed, the more salient territory is, the harder it is to insert gender into federal political discourses as a political variable (Vickers 1994).

Women's experience of federations is affected by whether specific powers, such as social policies, welfare programmes or family law, are assigned to the federal or constituent State governments and women's activism may be prompted by proposed shifts of responsibilities. Many feminists support the assignment of social welfare functions to federal governments, to ensure national standards and uniform social and economic rights and prevent the ‘post code lottery’ determining women's access to services. Such preferences may also be influenced by perceptions that constituent unit governments lack the financial resources to ensure that issues important to women are properly addressed.

The ability of federal governments to safeguard the human rights of all citizens has also been important for feminists. In the US, evidence mounted that at the State level there was insufficient investigation and prosecution of gender-based violence. A federal Violence Against Women Act was enacted in 1994, but six years later, the Supreme Court struck down that part of the Act that provided a civil remedy, on grounds that it exceeded the enumerated powers of Congress. Some feminists argued that this decision, and the theory of limited government it was based on, denied women the full civil rights protection they were owed as citizens (Resnick 2001). As Miriam Smith's chapter in this volume shows, the centralisation of human rights protections, as in the Canadian federation, can facilitate equal citizenship both for women and for sexual minorities.

On the other hand, feminists who identify strongly with a territorially-based nationalism may prefer responsibilities for rights and social programs to be in the hands of a regional or provincial government (Vickers 1991, Vickers 1994, Rankin and Vickers 2001). In Canada, francophone Québec feminists supported the Québec government's efforts to have family law devolved to the provinces. But English–Canadian feminists successfully resisted, arguing that where family law differs by province, women face many difficulties getting custody and support orders or property rights enforced. In Australia, women's organisations campaigned for many decades for the federal government to take up its family law power, for the same reasons.

Many advocates of federalism value the scope it provides for policy innovation and policy experimentation. Testing policy at the State or provincial level, where the ‘risks’ are smaller, may facilitate subsequent transfer of successful policies to other jurisdictions, including the ‘national’ level, as happened with Medicare in Canada. In Australia, as noted by Deborah Brennan in this volume, State-level innovations in areas such as anti-discrimination legislation or responses to domestic violence were then used by feminist advocates as models for other jurisdictions. Intergovernmental women's policy bodies facilitated such transfers, both horizontally and vertically. On the other hand, as shown in this volume by Melissa Haussman in relation to the US and by Laura Macdonald and Lisa Mills in relation to Mexico, federalism may also provide scope for policy-making by counter-movements and greatly increase the efforts required to preserve or promote reforms, when this must be undertaken in multiple jurisdictions.

Another defence of federalism is that it offers citizens the right of choice and exit, as citizens can compare policies and programmes and move from one jurisdiction to another in pursuit of their preferences. This argument, that citizens can ‘vote with their feet’, is particularly gender blind since women's lack of mobility because of family ties and responsibilities for caring for children and elders makes it difficult for them to take advantage of jurisdictional choice. Moreover, in incongruent federations, mobility is often hindered by language and other differences.

Multilevel governance

Traditional theories of federalism assume statist, hierarchical forms of authority and decision-making. But an increasingly interdependent and globalised world has made decision-making more complex and diffuse and many nation-states more porous. Decision-making is more likely to be shared between different levels of government and with non-state actors and actors beyond nation-state borders. Local and municipal governments often play more important roles, although these roles are unspecified in the Constitutions of the older federations. Increasingly government responsibilities are also being shared with multiple non-state actors. Some theorists simply added extra levels or scales to the model of federations. Others, influenced by the emergence of new modes of decision-making, particularly in the European Union (EU), introduced the concept of multilevel governance.

Multilevel governance has both a general meaning and a specific association with the EU as the most developed form of transnational governance so far. In the EU, the powers/responsibilities former...

Table of contents

• Cover Page
• Half-Title Page
• Series Page
• Title Page
• Copyright Page
• Table Of Contents
• List of Tables
• Notes on Contributors
• Series Editors' Preface
• Acknowledgements
• List of Abbreviations
• Part I
• Part II Older Federations: Australia, Canada, United States
• Part III Europe: Germany, Russia, the UK
• Part IV Newer Federations: India, Mexico, Nigeria
• Part V
• Bibliography
• Index