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Citation: 1999 Utah L. Rev. 957 1999
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https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0042-1448 Uneasy Riders*: The Case for a Truth- in-Legislation Amendment
Brannon P. Denning" & Brooks R. Smith'
I. INTRODUCTION
The electorate's frustration with congressional "gridlock"-the perceived paralysis of governmental operations occasioned by divided government and partisan bickering-has become a cliche in the literature on American politics.' However, as Jonathan Rauch noted, the description of "gridlock' during the late 1980s and early 1990s was inaccurate, since "the number and page count of laws enacted. . remained well in line with the post-1970 norm."' 2 This fact led Rauch to conclude that the real issue was not "the quantity of activity, but how effectively a given amount of activity solves problems on net."3 The real root of public dissatisfaction, then, seems to be a distinct, but related feeling that what does get through Congress is either merely legislation designed to service special interest groups that ensure lawmakers are reelected, or unnecessary spending measures for members' home districts.
With apologies to The Charlie Daniels Band, Peter Fonda, and Dennis Hopper. See THE CHARW DANIES BAND, UNEASY RIDER, on DECADE OF HiTs (Sony Music 1987) (describing hirsute motorist's altercation with "five big dudes... [,] one ol' drunk chick, and some fella with green teeth"); EASY RIDER (Columbia Pictures 1969) (chronicling hirsute motorcyclists' adventures across America). *'Assistant Professor, Southern Illinois University School of Law, Carbondale. LL.M., Yale Law School, 1999; J.D., The University of Tennessee, 1995; B-A, The University of the South, 1992. -Associate, Boult, Cummings, Connors & Berry, PLC, Nashville, Tennessee. J.D., The University of Tennessee, 1996; BA, The University of the South, 1993. The authors thank the following people for comments on and criticisms of earlier versions of this work: Alli Denning; Marilyn Drees; William N. Eskridge, Jr.; Philip Frickey, Beth Garrett; Pat Kelley, Dave Kopel; Nick McCall; Abner Mlkva; Glenn Reynolds; J. B. Ruhl; Gov. Carl E. Sanders; Janna Eaton Smith; and John R. Vile. 'See, e.g., WHY PEOPLE DON'T TRUST GOVERNMENT 3-6 (Joseph S. Nye, Jr., Philip D. Zelikow & David C. King eds., 1997); EJ. DIONNE, JR., WHY AMEICANS HAE POLITICs 10 (1991) (noting that Americans have been losing faith in democratic institutions); FRED R. HARRIS, IN DEFENSE OF CONGRESS 6 (1995) ("The worst of all public approval problems for Congress... is the noisy and notorious traffic jam at the intersection of policy proposal and policy action-the dreaded 'gridlock"); JOHN R. HIBBING & EaZABmrH THf=ss-MORSE, CONGRESS AS PUBuC ENEMY 2-3 (1995) (summarizing recentlitarature on voter dissatisfaction with Congress); JONATHAN RAUCH, DEMOSCLEROSIS: THE SILENT KniL OF AMERiCAN GOVERNMENT 9-10 (1994) (describing how "gridlock" became political elich6 as "[sleven in ten Americans [believed] that the government creates more problems than it solves"). 2RAUCH, supranote 1, at 11. 3Id.
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When the legislative juggernaut does get rolling, often under the specter of imminent government shutdown, impending adjournment, or both, the end product is often an omnibus mess, combining necessary legislation with goodies for legislators' home districts and controversial legislation passed without an opportunity for full debate. This state of affairs is the opposite of gridlock; and the legislative work product of an "active" Congress is arguably worse than that of a gridlocked one. For a recent example of what is "badly wrong" with our legislative process, one need look no further than the omnibus budget bill that passed the House and Senate toward the end of October 1998 and signed into law by the President. By all accounts, the bill is a Common Cause4 member's worst nightmare. The 3,825 page, sixteen inch tall, forty pound omnibus bill actually combined eight spending bills out of thirteen that Congress was unable to pass prior to the start of the October 1 fiscal year.5 Members of both parties, including those who voted for the bill, complained to reporters about the "ominously careless"6 process that spawned the bill.7 The "Dean of the Senate," West Virginia Senator Robert Byrd, called the end product "an elephantine monstrosity"' and compared it to "a Frankenstein creature...
4Common Cause "is a nonprofit, nonpartisan citizen's lobbying organization promoting open, honest and accountable government... Common Cause represents the unified voice of the people against corruption in government and big money special interests." About Common Cause (visited Dec. 23, 1999)
HeinOnline -- 1999 Utah L. Rev. 958 1999 No. 4] UNEASY RIDERS 959 patched together from old legislative body parts that don't quite fit."9 In an op-ed published in The New York Times, Arizona Senator John McCain complained that "negotiations were conducted behind closed doors-out of sight of the people as well as most members of Congress." 10 The Washington Times reported that changes to the bill were made right down to the time of the final vote, that a final draft of the behemoth was not available until the middle of the day the House was to vote, and that the final version "include[d] handwritten notes in the margin, e-mail printouts inserted into the bill, and misnumbered or unnumbered pages."" The result, as members acknowledged, was that the bill passed without anyone knowing for sure what was included-except perhaps "for that quick peek at page 2,216, Part B, subsection 3 [a], just to be sure that a wastewater-treatment facility and $4 million grant for the alma mater made it in." 2 New York Senator Daniel Patrick Moynihan said the bill "was not a deliberation of the Congress." 3 Senator Byrd exclaimed, "Only God knows what's in the monstrosity."'
in pork back to [West Virginia]"; likely, Byrd was "peeved at finding himself excluded from all the behind-the-scenes horse trading" Sean Paige, Rolling Out the PorkBarrel, 15 INSIGHT 32, available in 1999 WL 8673516. Evidence suggests this analysis is correct. Byrd, who last year excoriated both the process and its result, see supra notes 8-9 and accompanying text, has recently had a change of heart, seemingly occasioned by garnering part of a $20 million appropriation for prisons to house criminal aliens for his home state of West Virginia. "Too much of anything," Sen. Byrd said, quoting Mae West, "is simply wonderful" Tim Weiner, UnrelatedSpending Divides Conferees on EmergencyBills, N.Y. TIMES, Apr. 18,1999, at Al9 (quoting Sen. Byrd); see also Clinton Urged to Veto Rider-LadenAid Bill, CNN, May 7, 1999
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On the whole, however, individual members of Congress tended to care not so much what others managed to insert, as long as their own pet causes made it in2is As The Los Angeles Times aptly put it, "[t]he must-pass bill, needed to keep the government running for the next year, became a magnet for all manner of legislative desiderata-from major policy changes to parochial local projects."" The Washington Post called it "a vehicle for bills that members could not finish any other way, including measures to implement the international chemical weapons treaty and reorganize the nation's foreign policy agencies."17 Thus, most inembers held their noses and voted for it, even as they complained that Congress did too much, too quickly, and without fair warning to legislators or the public concerning what the bill contained, and also did so without meaningful debate on the merits of the various proposals."
process-were all present For coverage of the 2000 budget, see Reverse Rider,WASH. POST, Nov. 16, 1999, at A30 (criticizing riders aimed at limiting operation of environmental laws); Rider Time, WAH. PosT, Aug. 5, 1999, at A22 (same); Lizette Alvarez, Congress on Record Course for Pork, N.Y. TIMEs, Nov. 19, 1999, at Al (describing members' efforts to secure money for constituents); Juliet Eilperin & Dan Morgan, CapitolHill is Flush with Pork,WASH. PoST, Oct. 25, 1999, at Al (same); Alison Mitchell, On Budget, Everything in Moderation, N.Y. TIMES, Nov. 19, 1999, at A33 (assessing winners and losers in budget battle); Tn Weiner, FinalBudget Bill is Passedby House in Bipartisan Vote, N.Y. TMES, Nov. 19,1999, at Al. Ina hilarious Freudian slip, illustrative of the problem that our Amendment attempts to address, House Majority Leader Dick Armey declared at one point that the "store was still open" for wheeling and dealing on the budget See Weiner, Congress and the President,supra. Armey meant to say that the "floor" was still open, but the former is certainly more accurate. '5See supra text accompanying note 12. "6Hook, supra note 5. 17Hager, supra note 5. "3Sen. McCain compiled a fifty-two page list of projects he felt were wasteful, reprinting some in his New York Times op-ed. See McCain, supranote 10. Other widely reported projects included an extension for duck season in Mississippi, a ban on regulations mandating peanut- free zones on airlines, a $250,000 grant to an llinois company for caffeinated gum research, and a $750,000 grant for grasshopper research in Alaska. See Hager, supra note 5; Seelye, supra note 5; Godfrey, supra note 5. The appropriation most likely to arouse the interest of conspiracy theorists will no doubt be the $5 million dollars appropriated for an "International Law Enforcement Academy" to be located in Roswell, New Mexico. See McCain, supra note 10. Our favorite was the loan of money to Russia so that it could purchase poultry from Mississippi. See Godfrey, supra note 5. In both houses, rules to limit debate are especially common for must-pass legislation, especially when Congress is operating under time constraints. In the House, "special rules" are used to control debate and limit amendments, and generally to "set[] the terms for a measure's floor consideration." BARBARA SINCLAIR, UNORTHODOX LAWMAKING: NBw LEcIsLATIVB PROCESSES IN THE U.S. CONGRESS 21 (1997). Special rules "may restrict amendments, waive points of order (against what would otherwise be violations of House rules in the legislation or in how it is brought up), and include other special provisions to govern floor consideration." See id. The corresponding device in the Senate-where, unlike the House, majority rule does not always prevail-is the Unanimous Consent Agreement (UCA). "A UCA may specify time for general debate and time limits for the debate of specific amendments; it may bar
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Important policy measures were included simply because: (i) members could not agree on them otherwise; and (ii) by attaching them to the appropriations bill, members in opposition would be unable to kill the offending measures without scuttling the entire bill and risking another government shutdown.' 9 The combination of a lack of political will to make tough decisions and a lack of procedural discipline to restrain the increasingly familiar year-end appropriations orgy seems as much at the heart of congressional (and public) dissatisfaction with the legislative process and its results as any general perception of governmental gridlock. Various proposals, including campaign finance reform, term limits, the balanced-budget amendment, and the line-item veto,20 have been floated to encourage (or coerce) members of Congress to put aside self-interest and petty partisan bickering to "do the people's business." These schemes were eventually either rejected by Congress as unwise (the balanced budget and term limits amendments), or judged unconstitutional by the courts (line-item
nongenmane amendments or nongermane amendments that are not explicitly listed [in the UCA]; and it may specify the time for votes on specific amendments and on final passage." Id. at 40; see generally CHARLBES TEFE, CONGRESSIONAL PRACrICE AND PROCEDURE: A REEMENCE, RESEARCH, AND 1EGISLATrvE GUIDE 269-74,284-96,573-93 (1989) (discussing special rules and UCAs); SARAH A. BINDER & STEvEN S. SMnrH, PoLITICS OR PRINCIPLE?: FMUSTERING IN TH U.S. SENATE 76-78 (1997). "9One op-ed writer complained that "riders are a form of legal blackmail, where the proponents gamble that members of Congress and the president will let these special interest amendments slide in order to avoid another budgetary battle that could shut down the government...." John Rosapepe, Use of 'Riders' Hides Issuesfrom Debate, Public,IDAHO STATESMAN, Sept. 9, 1998, at 6B, available in 1998 WL 16489298. Neologists might prefer to term these tactics "legismail." "0 While the legislative line item-veto was declared unconstitutional by the Supreme Court, see Clinton v. City ofNew York, 524 U.S. 417,448 (1998), an argumentmade its rounds in conservative circles during the Reagan-Bush years that the President had an inherent line- item veto power. See LouIs FISHER, CONSTITUTONAL CoNFuCrS BETwEEN CONGRESS AND THE PRESIDENT 135-36 (Univ. Press of Kansas, 4th ed. 1997); L. Gordon Crovitz, The Line- Item Veto: the Best Response When Congress Passes One Spending "Bill" a Year, 18 PEPP. L REV. 43, 55 (1990) (presenting argument for inherent line-item veto power); J. Gregory Sidak & Thomas A. Smith, Why Did President Bush Repudiate the "Inherent" Line-Item Veto?, 9 J.L & POL. 39, 39 (1992) (arguing that Constitution provides president inherent "power to unbundle, and separately veto, non-germane parts of an omnibus piece of legislation'). The authors thank Professor Mark Tushnet for directing our attention to these articles. The argument went that the Framers understood a "bill" to contain only one subject; therefore, the President had discretion to veto parts of legislation containing more than one subject. See President George Bush, Remarks at Dedication Ceremony of the Social Sciences Complex at Princeton Universityin Princeton,New Jersey, (May 10, 1991), in 1 PUB. PAPERS OF THE PRESIDENTS: GEORGE BUSH, 1991, at 449 (1992) (remarking that forty-three state governors have a line-item veto and noting that "[s]ome believe that I already have that power under the Constitution"). On advice of the Office of Legal Counsel, President Bush never attempted to exercise this alleged power. See FISHER, supra, at 136.
HeinOnline -- 1999 Utah L. Rev. 961 1999 962 UTAH LAW REVIEW [1999:957 veto and state term limits on congressional officials 21). And yet because the feeling persists that something is badly wrong with our legislative process, the search for a silver bullet continues. In this Article, we propose a solution that should appeal to members of a Congress afflicted with what Dean Kathleen Sullivan calls "constitutional amendmentitis"': an amendment to the Constitution requiring that Acts of Congress deal with a single subject, and express that subject in the Act's title.23 Such an amendment-which we call "The Truth-in-Legislation Amendment"* - - will help ensure that Congress "enact[s] laws that reflect the best interests of all Americans, rather than the special interests of a few."25 If ratified, it would read:
Congress shall pass no bill, and no bill shall become law, which embraces more than one subject, that subject being clearly expressed in the title.
Like previous would-be fixes, it is calculated to correct deficiencies in the legislative process. Unlike the other proposed alterations to the Constitution, however, our proposal is intended to function as more than mere constitu- 26 tional graffiti. We borrow the wording of our proposal from the Constitution of the State of Tennessee: "No bill shall become a law which embraces more than one subject, that subject to be expressed in the title."' In the colorful words of the Tennessee Supreme Court, this provision, inserted into the Tennessee
2 See Clinton v. City of New York, 524 U.S. 417, 448 (1998) (striking down line-item veto); United States Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (striking down state-imposed term limits on members of Congress). 'See Kathleen M. Sullivan, ConstitutionalConstancy: Why Congress Should CureItself of Amendment Fever, 17 CARDozo L. Rv. 691, 691 (1996); Kathleen M. Sullivan, ConstitutionalAmendmentitis, AM. PROSPECT, Fall 1995, at 20. 'For similar suggestions, see Nancy J. Townsend, Comment, Single Subject Restrictions as anAlternativeto the Line-Item Veto, 1 NoTRE DAME J.L ETHICS & PuB. POL'Y 227, 247-57 (1985); Courtney Paige Odishaw, Note, Curbing Legislative Chaos: Executive Choice or CongressionalResponsibility?, 74 IOWA L. REV. 227, 240-48 (1988). We differ from both authors in that we are committed to the use of the Article V amending process, rather than the legislative process, to secure lasting change. 24We use the word 'Truth" here not as indicating a desire to see particular ends guaranteed, but rather as one might describe the label on a particular product as "true," that is, not containing false or misleading information. 25McCain, supra note 10. See also David Rogers, Lobbyists Hurry to Put Changes in Year-End Bill, WALL ST. J., Oct. 19, 1998, at A4 (describing various special interest amendments). 2"Brannon P. Denning, Editorial, This Amendment Would Be ConstitutionalGraffiti, LA TIMES, Feb. 5, 1997, at B9 (criticizing proposed balanced budget amendment for creating right without remedy). 27TENN. CONST. art IL § 17.
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Constitution in 1870, was intended "to cut up by the roots, not only the pernicious system of legislation, which embraced in one act incongruous and independent subjects, but also the evil practice of giving titles to acts which conveyed no real information as to the objects embraced in [their] provi- sions."' But this is not a constitutional innovation peculiar to the Volunteer State; as explained below, forty-three states have similar provisions in their constitutions,29 most of which were inserted in the second half of the nineteenth-century. Application by courts of the Amendment to legislation would be quite straightforward. The plain language of our proposal would require that each congressional bill contain only one subject and a title that expresses that subject clearly. Thus, an act listing more than one subject in the title-for example, one that aims to combat health care fraud and ensure portable insurance for persons changing jobs-would constitute a per se violation. Likewise, an act that specifies one subject in the title, but whose body clearly embraces more than one topic-such as an appropriations bill with some sort of non-germane rider attached-would also be forbidden. Here, though the title expresses only one subject, a check of the title with the body of the act would reveal the presence of multiple subjects. Once this is established, the court could either invalidate the entire act, or possibly elide the nonconform- ing provision. 30 Moreover, an act expressing an overly broad title ("The Anti- terrorism Act of 2000') should warrant a hard look from the judiciary, lest Congress be allowed to subvert the Amendment's intent by connecting disparate provisions with gossamer assertions of germaneness to a nonspecific 31 subject.
2sCannon v. Mathes, 55 Tenn. 504, 518 (1872). The Court also noted saying that the provision "is a direct, positive imperative plain, absolute and unconditional limitation upon legislative power." Id. at 517. 29See infra Appendix A & Appendix B. 3°It is possible that but for the inclusion of a particular rider, the bill would not have passed;3 in such cases, then, the invalidation of the entire law is probably preferable to elision. Recent commentators offering criteria by which proposals to amend the Constitution can be measured have stressed the importance of clear language that can be easily understood and applied. See CTINs FOR THE CONSTITUTION, "GREAT AND ExTRAoRDNARY OccASIONS": DEVELOPING STANDARDS FOR CONSTITTONAL CHANGE 15-16 (1997) (discussing importance of making amendments embody enforceable, as opposed to aspirational, standards, and anticipating unintended consequences of amendment) [hereinafter DEvELOPING STANDARDS FOR CONSTITUTIONAL CHANGE]; J.B. Ruhl, The Metrics of ConstitutionalAmendments: And Why ProposedEnvironmental Quality Amendments Don't. Measure Up, 74 NOTRB DAMl L. REv. 245, 275-79 (1999) (same). Those are important considerations, and the adoption of our Amendment would no doubt occasion some close cases. For example, how general can a title be before a court could conclude that it violates the subject-title requirement? Here we make no attempt to answer such questions, but rather respond in part that our Amendment is no more ambiguous than others in the Constitution and counter that an exclusive focus on the close cases risks mistaking the margin for the middle.
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In the parts below, we offer an explanation and a defense of our proposal. Part II features a short history of these "subject-tite" clauses, which became popular as constitutions were rewritten (or written, in the case of newly admitted states) during the nineteenth-century. In Part III, we explain how a subject-title requirement in the Federal Constitution would ameliorate problems with the federal lawmaking process. In Parts IV and V, we describe how our Truth-in-Legislation Amendment works in harmony with contempo- rary constitutional and legislative theory; and we argue that it would be neither out of place in the Federal Constitution nor alien to the Framers' views of lawmaking. Finally, in Part VI, we anticipate and answer possible objections to our proposal. We do not propose this constitutional amendment lightly or fippantly.32 Constitutional amendments are serious business. The Framers intended Article V to be used only to remedy imperfections that surfaced in the course of the operation of the machinery of government.3 But we believe that the
See generally H.L.A. HART, THE CoNcEPT OF LAw 124-41 (2d ed. 1994) (discussing uncertainty that surrounds application of verbally-formulated rules). 'Nor are we the first to propose amending the Constitution to include a subject-title requirement. In 1864, Senator Powell of Kentucky proposed an amendment that read- "Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title." CONG. GLOBE, 38th Cong., 1st Sess. 1441, 1447 (1864) [hereinafter Powell]. His proposal was defeated 37-6. According to Professor John R. Vile, an expert on the amending process and its history, at least four other proposals were made at various times to add a subject-title amendment to the Constitution; none got anywhere. E-mail from John R. Vile to Brannon P. Denning (Dec. 10, 1998) (copy on file with authors). 33For the Framers' views on the amendment process, see Brannon P. Denning, Means to Amend: Theories of Constitutional Change, 65 TENN. L. RBv. 155, 160-78 (1997). Concern with congressional "amendmentitis," see supra note 22 and accompanying text, has produced some standards by which proposed amendments to the Constitution should be measured. For example, a group of distinguished legal scholars and practitioners organized the "Citizens for the Constitution" (CFC) and produced standards for constitutional amendment See DEVELOPING STANDARDS FOR CONSTITUTIONAL CHANGE, supra note 31, at 6. According to CFC, constitutional amendments should (i) address lasting, as opposed to immediate, concerns; (ii) not make the political system less responsive, except to protect individual rights; (iii) be utilized only when legal or practical obstacles block alternative means for realizing the objective; (iv) not be adopted when ratification would damage "the cohesiveness of constitutional doctrine"; (v) be enforceable, as opposed to aspirational; (vi) anticipate consequences of adoption, including the interaction with other parts of the Constitution as a whole; (vii) be enacted under procedures designed to ensure maximum debate; and (viii be ratified within a reasonable time following proposal to ensure that a "contemporary consensus" exists that the amendment is desirable. Id. Professor Ruhl has also articulated a series of criteria, which he describes as "Level One" and "Level Two" filters. See Ruhl, supranote 31, at 263-80. Level One filters measure whether the proposed amendment is acceptable to society and institutionally necessary by asking whether the measure enjoys broad social approval and whether the amendment is necessary for the objective's successful implementation. See id. at 264-74. Level Two filters further ascertain whether the measure can be successfully implemented. See id. at 275. Here, the
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pathological legislative process that produced the fiscal year 1999 budget is defective enough to warrant resort to the Article V amendment process. Moreover, for reasons expressed in Part VI, we argue that merely establishing subject-title requirements legislatively would be ineffectual."
I1. A SHORT HISTORY OF SUBJECT-TiLmE REQUIREMENTS IN STATE CONSTITUTIONS
Our proposal actually combines two limitations: (i) that each bill contain only one subject35; and (ii) that the subject be clearly expressed in the bill's title. Each has independent historical roots, but both are now included concurrently in most state constitutions. 6
relevant questions are: (i) can the amendment be articulated in terms that are legally enforceable; (ii) whether the measure is clear enough to minimize unintended interpretations; and (iii) whether the measure is both stable and flexible enough to endure over time? See id. at 275-80. Measured against either set of criteria, the Truth-in-Legislation Amendment passes muster. For a description of its aims, its harmony with contemporary constitutional theory, and our response to anticipated objections, see infra Parts I, IV, V, and VL ZSee infra Part VL 3The wording of the various state constitutional provisions includes both the term "object!' and "subject." The Supreme Court of Appeals of West Virginia has noted that "the terms are synonymous since the constitutional provisions containing the terms were enacted for the same basic purpose." Kincaid v. Mangum, 432 S.E.2d 74, 76-77 n3 (W. Va. 1993). Likewise, another court has stated that "'subjct' and 'object,' with reference to this constitutional provision, have come to be regarded as synonymous" Board of Health of New Jersey v. Inhabitants of Town of Phillipsburg, 91 A. 901, 903 (NJ. Ch. 1914). But see North Ridge General Hospital, Inc. v. City of Oakland Park, 374 So. 2d 461, 463-64 (Fla. 1979) ('The subject is the matter to which an act relates; the object, the purpose to be accomplished. The term 'subject' is broader than the word 'object,' as one subject may contain many objects") (citations omitted). We choose the term "subject," instead of "object," but not because of the reasons expressed by the Florida Supreme Court. Ascertaining the "subjecf' of a bill seems to us a more objective inquiry, one that can be discerned from the text of the statute itself. Requiring a court to divine the "objece' of the legislature in passing a particular law seems to doom to failure provisions restricting legislation to one object, because it is highly unlikely that any two legislators have the same object in mind for a piece of legislation. 'For general treatments of subject-title requirements, see WIL.LAM N. ESKRIDGE, JR., PHILP P. FRicKEY & ELzABETm GARRmrT, LEGISLATION AND STATUTORY INTERPRHTATION 169-74 (2000); WLUAM N. ESKRIDGE, JR. & PHILP P. FRICKBY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION oFPUBIUC PoucY 250-53 (2d ed. 1994); ABNER J. MVA & ERIc J. LANE, AN INTRODUCTION TO STATUTORY INTERPRETATION AND THE 1E.ISLATVB PROCESS 163-64 (1997); WILLIAM D. POPKIN, MATERIALS ON LEGISLATION: POLIICALLANGUAGEANDTHEPOLITICALPROCESS § 17.02, at 803-13 (2d ed. 1997); Clayton P. Gillette, Expropriationand Institutional Design in State and Local Government, 80 VA. L REV. 625, 657-64 (1994). The classic treatment is Millard H. Ruud, "No Law Shall Embrace More Than One Subject," 42 MINN. L. Rnv. 389 (1958). Illinois removed its title requirement in 1970. Indiana, too, has a single-subject, but not a title, requirement. Mississippi, on the other
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The requirement that the subject of the legislation be expressed in its title has its origins in Georgia's experience with the notorious "Yazoo Land Fraud." In 1783, the State of Georgia included most of Alabama and Mississippi because, unlike most other original States, Georgia did not cede its westward land to the Federal Government after the Revolutionary War. In 1795, with the State strapped for cash, the Legislature (all but one of whose members personally profited as a result) sold approximately thirty million acres of land to four land companies for one and one-half cents per acre.' Popular outrage' at the widespread bribery that accompanied the fraudulent transfer of state lands was reflected in the Constitution of 1798, which included the provision providing that "[n]o law or ordinance shall pass containing any matter different from what is expressed in the title thereof."39 This requirement was intended to prevent further deceptive and misleading legislation and was soon adopted by other states. In 1844, New Jersey inserted into its constitution the first single-subject requirement. 1 Over the next sixty years, during a remarkable period of
hand, has a titlerequirement, but no single-subject requirement. See infraAppendix A. 37 See generally C. PETER McGRATH, YAzOO: LAw AND PoIIcs IN THE EARLY REPmuC 50-84 (1966) (discussing Yazoo and Fletcher v. Peck). 38 The enactment of the statute making this grant had been so clearly obtained by fraud and bribery that the indignation in Georgia was intense; the sale was revoked by the next Legislature in 1796; the Act of 1795 was publicly burned, and all evidence of its passage was expunged from the record. 1 CHARLES WARREN,TiHESUPREMBCOURTINUNrrED STATES HISTORY392-93 (1926 ed.). The four land companies quickly resold the land to innocent third-party purchasers, and those sales were upheld by the United States Supreme Court in Fletcherv. Peck, 10 U.S. (6 Cranch) 87, 141 (1810).39 ALBERT BERRY SAYEACONSTITUTIONALHISTORY OF GEORGIA, 1732 -1968, at 160 (rev. ed. 1970). The intentionally misleading title of the Yazoo Act read: An Act supplementary to an Act, entitled an Act for appropriating a part of the unlocated territory of this State, for the payment of the late State troops, and for other purposes therein mentioned; declaring the right of this State to the unappropriated territory thereof, for the protection of the frontiers, and for other purposes. WALTER MCELREATH, A TREATISE ON Tm CoNsTTUION OF GEORGIA § 75, at 90 (1912). 4 See, e.g., Opinion of the Justices No. 174, 154 So. 2d 12, 15 (Ala. 1963) (stating that "[o]ne of the purposes of the requirement... is to prevent surprise or fraud upon the legislature by incorporating in bills provisions not reasonably disclosed by its title, and which might be overlooked, and unintentionally approved in enacting the bill" and "to fairly apprise the public of the import of the 41 legislature so they may be heard"). But see Ruud, supra note 36, at 389. According to Professor Ruud, the Romans, as far back as 98 B.C., codified the notion that that laws should not contain unrelated provisions. See also Edward S. Corwin, The "HigherLaw" Background of American Constitution Law, 42 HARV.L REV.149,160 n.36 (1928) ("The lex Caecilia et Didiawas a portion of thejus legum which prohibited the proposal of any law containing two or more matters not germane") (citations omitted).
HeinOnline -- 1999 Utah L. Rev. 966 1999 No. 4] UNEASY RIDERS 967 constitutional revision,42 one hallmark of which was the imposition of substantive constitutional restrictions on legislatures,' other states followed suit,;" with some variations in the wording.45 The object of these provisions is summarized in the New Jersey provision itself: "To avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other."'46 Other states cited omnibus bills that roll wide varieties of legislation into one act, logrolling, hodge- podge legislation, bills with low visibility and deceptive wording that skulk through the legislative process, and eleventh hour consideration of legislation as examples of the mischief that the single subject provisions were intended to halt.47
'See generally G. ALAN TARR, UNDERSTANDING STATE CoNsTrruTIONS 94(1998). From 1800 to 1860, thirty-seven new state constitutions were adopted. Fifteen of the twenty-four states in the Union by 1830 revised their constitutions by 1860, two of them twice .... [D]uring one decade, from 1844 to 1853, more than half the existing states held constitutional conventions .... From 1861 to 1900, twenty states revised their constitutions, some several times, adopting forty-five new constitutions in all. . .. Of those states that joined the Union from 1800 to 1850, only two had not revised their constitutions by century's end; altogether, ninety- four state constitutions were adopted during the nineteenth century. Id. 43 See id. at 118-19 (discussing addition of subject-title requirements during nineteenth- century). Incidentally, the Confederate Constitution of 1861 included a subject-title requirement as well. See C.SA. CONST. art. L § 9, ci. 20, reprintedin MARSHALLL. DERosA, TIBCONFMBRATECONSTITUTIONOF1861:ANINQURYINTOAMRICANCONSTrrUTIONALISM app. (1991). 44See infraAppendix A & Appendix B. 45See id. Interestingly, five of the original thirteen states-Connecticut, Massachusetts, New Hampshire, North Carolina and Rhode Island-have neither a single subject provision, nor a title requirement in their constitutions. 4 4ONJ.7 CoNsT. art. 4, § 7, cl. 4. For a comprehensive statement of the purposes of subject-title clauses, see Porten Sullivan Corp. v. State, 568 A.2d 1111, 1115-18 (Md. 1998) (citations omitted): the object of this constitutional provision is obvious and highly commendable. A practice had crept into our system of legislation, of engrafting, upon subjects of great public benefit and importance, for local or selfish purposes, foreign and often pernicious matters, and rather than endanger the main subject, or for the purpose of securing new strength for it, members were often induced to sanction and actually vote for such provisions, which if they were offered as independent subjects, would never have received their support. In this way the people.., have been frequently inflicted with evil and injurious legislation. Besides, foreign matter has often been stealthily incorporated into a law, during the haste and confusion always incident upon the close of the sessions of all legislative bodies, and it has not infrequently happened, that in this way the statute books have shown the existence of enactments, that few of the members of the legislature knew anything of before. To remedy such and similar evils, was this provision inserted into the constitution, and we think wisely inserted. See also Kane County v. Carlson, 507 N.E.2d 482,493 (1l. 1987) (stating that purpose of one-
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Ill. AIMS OFThE TRUTH-N-LEGISLATION AMENDMENT
The aims of our proposal largely parallel those of nineteenth-century state reformers who sought the inclusion of subject-title provisions in their constitutions. A federal subject-title amendment would provide the means to: (i) limit pork barrel spending; (ii) control the phenomenon of legislating through riders; (iii) limit omnibus legislation produced by logrolling; and (iv) increase the institutional accountability of Congress and its members.
subject requirement is to prevent combination of unrelated subjects to garner support for entire package of subjects); Floridians Against Casino Takeover v. Let's Help Florida, 363 So. 2d 337,339 (Fla. 1978) (reasoning single subject rule intended to provide people with opportunity to approve or disapprove each statutory change); Garten Enterprises, Inc. v. Kansas City, 549 P.2d 864, 867 (Kan. 1976) (stating purpose of single subject is to prevent a "matter of legislative merit from being tied to an unworthy matter"); State v. Dooley, 259 So. 2d 329, 333 (La. 1972) (explaining that single subject is meant to provide notice to legislators and restrict legislative acts so that a "legislator will not for the purpose of voting on the bill have to weigh the validity of two objects foreign to each other); Kelly v. Williams, 346 S.W.2d 434, 436 (Tex. Civ. App. 1961) ("[T he settled purpose of the act is to prevent 'logrolling' and 'riders'. . to prevent surprise or fraud upon Legislators ... [and to provide] reasonable notice of the act be given to the people and public so that they may have an opportunity to be heard on the subject if desired"); Jackson v. State, 142 N.E. 423, 424 (Ind. 1924) (stating that single subject provision prevents supporters of one measure from embracing in legislation other unrelated measures so that combined minorities may have sufficient votes to pass combined measures). Professor Tarr notes that subject-title requirements were part of a rethinking about government and the aims it was supposed to serve. See TARR, supra note 42, at 100. [Njneteenth century constitution-makers understood republican government to entail not only government by the people but also government for the people. State constitutions recognized... that there was a good common to the society as a whole, which government was obliged to pursue. This common good was defined less by what it was than by what it was not, namely, rule by or on behalf of a segment of society. Nineteenth-century constitution-makers believed that powerful minorities, rather than tyrannical majorities, posed the most serious threat to liberty....
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A ControllingSpending
A desire to limit congressional spending-particularly so-called "pork barrel" spending4 -- was the raison d'etre of the line-item veto.49 Because of the nature of the legislative process, critics maintained, Congress simply could not be trusted to curb its appetite for appropriation; thus, members of Congress 5in0 a fit of self-loathing, were willing to increase the power of the President. The Amendment embraces the proposition that appropriations from the public fisc, particularly those conferring benefits on concentrated interests, deserve special scrutiny because of the danger that they are the product of "rent-seeking"5' and because the collective action problem makes it unlikely
4 One writer defines "pork" as "public works programs of dubious merit, specific to one congressional district, designed to curry favor with its voters." Jonathan Cohn, Roll Out the Barrel,THE NEW REPUBEc, April 20, 1998, at 19, 20. 49See, e.g., Alan J. Dixon, The Casefor the Line-Item Veto, 1 NOTRB DAME J.L. ETHICS & PUB. POL'Y 207, 215 (1985) ("one important reason for the item veto's success is its effectiveness in reducing the use of legislative tactics that contribute to excess spending and waste!); J. Gregory Sidak, The Line-Item Veto Amendment, 80 CORNELL L. REV. 1498, 1498 (1995) (noting that absence of the line-item veto may have contributed to the growth of federal government and an increase in debt spending); Anthony R. Petrilla, Note, The Role of the Line- Item Veto in the Federal Balance of Power, 31 HARV. J. ON LEGIS. 469, 469-79 (1994) (summarizing various arguments in favor of the line-item veto). The mere proposal of the line-item veto, constitutional considerations aside, seemed to justify people's low regard for Congress, increased further the power of the executive branch, and called into question the future of deliberative, democratic decision-making. If Congress can't be trusted to live within its means without the President holding the whip-hand over it, one might wonder, why involve Congress in highly important matters like foreign policy or war powers? Our Amendment, on the other hand, provides a powerful tool to limit spending, without an unnecessary and dangerous increase in the President's power. ""Renf'5 is defined by economists as "the payment for use of a resource, whether it be land, labour, equipment, ideas or even money." 4 THE NEW PALGRAvE DICIONARY OF ECONOMICS 141 (John Eatwell et al., eds., 1987) [hereinafter PALGRAvE DICTIONARY OF ECONOMICS]. "Rent seeking" is used to describe the efforts by producers to secure a monopoly (usually granted by the government) that will enable them to reap more "rents" than they would otherwise be able to command for their product. See TMEMIT DICTIONARY OF MODERN ECONOMICS 372-73 (David W. Pearce ed., 4th ed., 1992) (defining rent seeking as "[the use of real resources in an attempt to appropriate a surplus in the form of a rent'; offering as an example of rent-seeking the "use [of] resources to lobby a government to impose a restriction ... on an imported good" so that the industry could receive payments exceeding normal market condition payments). In his article on rent-seeking in The New Palgrave Dictionary of Economics, supra, economist Gordon Tullock likens rent-seeking to a lottery in which many people buy lottery tickets, a few win very large amounts of money and therest lose.... [Tihe activity of creating monopolies could both absorb very large resources, particularly those resources that take the form of exceptionally talented individuals who devote their attention to this difficult and highly rewarded activity, and lead
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that parties bearing the cost of the transfer can overcome the costs necessary to organize and oppose the transfer.52 Moreover, once one such transfer is authorized, others soon follow as additional members trade their support for an extra goody or two to take back to their constituents. Bills like this soon begin to resemble Christmas trees, as members ornament the underlying legislation with pork. It is unlikely that all of the appropriations items included in the 1999 fiscal year budget53 could have survived scrutiny if each had to stand on its own, unbundled from other legislators' pet projects and not proposed at the last minute as part of a must-pass bill.55 Meritorious spending proposals should not mind publicity. In fact, publicity may benefit odd-sounding but
to considerable redistribution of wealth in the community ... This substantial redistribution [occurs] simultaneously with a considerable waste of resources in general, both because these highly intelligent people could otherwise be doing something of higher productivity and because the economy's use of resources has been further distorted by the creation of the monopoly. 4 PALGRAVE DICTIONARY OF ECONOMICS, supra, at 147. Tullock concludes that: "[Tihe argument against rent seeking turns out to be an argument against political corruption." Id. at 148. For more on the costs of rent-seeking, see infra notes 152-154 and accompanying text. 'Jonathan Rauch provides the following pithy illustration of the collective action problem: A dozen companies making left-handed screwdrivers may organize to get themselves a tax break. If they win a loophole worth $12 million, each earns a cool million, and the investment pays off handsomely. Their tax break comes out of the pockets of everyone else--but the cost is spread out among millions of Americans. And so it would be pointless for someone to try to organize 250 million Americans to win back a fraction of a cent each. RAUCH, supranote 1, at 24. 53See supra note 18, for a few examples. 'We do not mean to suggest that judicial application of the Truth-in-Legislation Amendment would result in a choice between allowing herniating budget bills like that passed for Fiscal Year 1999, or requiring passage of each line-item in the budget as a separate measure. See supra notes 4-19 and accompanying text. The latter would, no doubt, tend to paralyze the work of Congress. Luckily, the Amendment does not require such a false choice to be made. Congress already recognizes general "subjects"-defense, transportation, agriculture, etc. - in which all appropriations related to that topic are made. Assuming items were not included in the "defense" appropriations bill that did not have anything to do with the appropriations of defense funds, we see no reason why courts could not find these bills constitutional. "SSpeaking before the U.S. Senate in support of his 1864 proposal to add a subject-title requirement to the Constitution, Senator Powell complained of the "great deal of legislation which could not be passed on its own merits, but which yet finds its way upon the statute- book." See Powell, supra note 32, at 1447. A proposal to be "enacted into a law should go through upon its own merits, and not be carried because of the peculiar surrounding circumstances in which, owing to the condition of the public service, a vital measure must be lost or extraneous matter carried through by it." Id.
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otherwise worthwhile appropriations singled-out each year by good govern- ment types as examples of scandalous governmental waste.56
B. EliminatingLegislation-by-Rider
Furtive raids on the United States Treasury for the benefit of well- organized constituencies are bad enough. A more pernicious and potentially harmful form of pork barrel politics is the increasing use of riders to effect substantive policy changes.57 The linkage of the payment of back dues to the United Nations to a provision that no such money be used to fund that organization's family-planning activities,58 and the last-minute passage of constitutionally-suspect implementing legislation for the Chemical Weapons Ban Treaty,59 are two recent examples of "legislation-by-rider."60
'See infra notes 146-147 and accompanying text. 7 " See, e.g., Sandra Beth Zelimer, Sacrificing Legislative Integrity at the Altar of AppropriationsRiders: A Constitutional Crisis,21 HARv. ENVTL. L.REv. 457, 457 (1997) (discussing environmental substantive policy changes); David Baumann, Veto Bait, NAT'L J., Aug. 8, 1998, at 1850-51, availablein 1998 WL 2089449 (setting policy on abortion, census, and internet gambling issues, among others); Bonnie Erbe, Extremist Right Gets Sneaky, CAPITALTMES (Madison, WI), July 22, 1998, at 8A, availablein 1998 WL 14525483 (arguing that GOP ideologues use riders to push anti-environmentalist and anti-abortion agendas); James 0. Goldsborough, Letting Extremists Dominate U.S. Foreign Policy, SAN DIEGO UNIoN- TRIBUNE, May7, 1998, atB13, available in 1998 WL4008962 (decrying GOP use of riders to hold up payment of UN dues and IMF contributions; lamenting rise of isolationist wing of GOP). 5See David Rogers, Republicans Use Spending Bills to Help Business Allies, Advance Social Agenda, WALL ST. J., June 24, 1998, at A2, available in 1998 WL.-WSJ 3499155 (describing Republican efforts to tie appropriations for UN back dues to White House acceptance of "antiabortion restrictions on overseas family-planning programs"); Goldsboro- ugh, supranote 57. See also Erbe, supra note 57 (describing use of riders to limit research in use of contraceptives). 59See Hager, supra note 5, and accompanying text. The implementing legislation passed as part of the omnibus budget bill. For a summary of the constitutional problems with this legislation, see Ronald D. Rotunda, The Chemical Weapons Convention: Political and ConstitutionalIssues, 15 CoNsT. COMMENTARY 131, 141-59 (1998); John C. Yoo, The New Sovereignty and the Old Constitution: The Chemical Weapons Convention and the Appointments Clause,15 CONST. COMMENTARY 87, 88 & n.6 (1998). ' 0One political scientist recently noted that riders, of late, are not only more numerous, but also tend to include more substantive material than in the past. See SINCLAIR, supra note 18, at58. Sinclair maintains: Because appropriations bills, which fund the government, must pass, House Republicans [in the 104th Congress] decided to use them as vehicles to enact a host of desired policy changes quickly and to protect them from a presidential veto. Although appropriations bills are not supposed to include "legislative" provisions [,]... Congress frequently uses this tactic; what was different in the 104th was the large number of riders House Republicans attached to appropria- tions bills and the scope and magnitude of the legislative changes they tried to bring about in that way.
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Riders attached to legislation virtually guaranteed passage either short- circuit normal legislative procedures because the riders would be unlikely to survive them, or load the host legislation with a condition so unpalatable as to force the President to veto the bill.6 In 1996, for example, former Representative Robert Doman attached a rider to a Defense Appropriations Bill mandating the immediate honorable discharge of all servicemen and servicewomen who tested positive for ILV.62 While such tactics are not without defenders,63 the practice seems inconsistent with Article I, § 7 lawmaking requirements and with more general notions of deliberative decisionmaking, particularly since such amendments are often buried in large omnibus legislation 64 or adopted under rules that severely limit the time allowed for debate. Since many "poison pill" or "stealth" riders are unrelated to the host legislation, they would be fairly easy targets for a challenge under the Truth-in-Legislation Amendment.
Id. "Describing GOP efforts to restrict the use of federal funds in overseas family planning programs, and their linkage of that issue to the payment of dues the United States owes the UN, one observer noted that the President: has no choice but to veto the bills. No president can allow foreign policy to be controlled by minorities trying to legislate narrow agendas by legislative rider. The anti-abortion rider would deny aid to international family planning organizations. Congress likes riders for larding up domestic bills, but historically has had enough sense not to booby-trap foreign policy. Even if isolationists like [Sen. Jesse] Helms oppose both the United Nations and IMF, congressional leadership traditionally puts U.S. international interests first. Not this time. These bills-giving Clinton the absurd choice of signing them and rewarding the anti-abortionists,or vetoing them and rewarding the isolationists-was [sic] written to be vetoed. Goldsborough, supra note 57 (emphasis added). 'For more detail on the amendment, and the Administration's actions to counter it, see H. Jefferson Powell, The Province and Duty of the PoliticalDepartments, 65 U. CmU. L RV. 365, 380-84 (1998) (book review). Republicans tried again in the 2000 budget this time, seeking to attach anti-environmental riders to appropriations bills. See, e.g., John F. Harris, EnvironmentalistsUrge Clinton to Veto "Unconscionable" TransportationBill, WASH. POST, Oct. 6, 1999, at A14; Eric Pianin & Juliet Eilperin, House Resists Senate Environment "Riders," WASH. PoST, Oct. 5, 1999, atA4; see also Alison Mitchell, Clinton Signs Military Budget Bill, Avoiding Split Among Democrats, N.Y. TMES, Oct. 26, 1999, atAl (describing Administration displeasure with Pentagon spending bill that it thought was loaded with unnecessary spending measures, but signing it for fear of being charged with endangering national security by veto). 'See, e.g., Slade Gorton & Larry E. Craig, Congress's Call to Accounting; Riders Rein in the Worst Excesses of an Administration,WASH. PoST, July 27, 1998, at A23 (arguing that "the practice of attaching amendments directing federal agency action . . . to various appropriations bills" represents "an important way for Congress to save taxpayers from wasteful agency spending"). 64See infra Part IMl.C.
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C. Limiting the Omnibus Bill
Since the New Deal, Congress has become enamored of amalgamating disparate pieces of legislation in broadly-titled "omnibus" legislation whose titles are, at best, vague, and, at worst, paradigmatic examples of Orwellian Newspeak. Two recent examples illustrate this point. Ostensibly written to prevent another Oklahoma City bombing, the original provisions of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA)65 read like a federal law enforcement wish list. Were its provisions proposed separately, many would have gone down to defeat sooner than they did. However, because they were lumped together in one bill, on which the "Anti-terrorism Act" label was slapped, legislators initially supported it reflexively. Most people had no idea that the bill not only would not have prevented the Oklahoma City bombing, but also represented a serious abrogation of civil liberties, until a broad coalition of disparate groups focused attention on egregious provisions, which were eventually deleted. 66 Similarly cumbersome as a piece of legislation, in 1996, Congress passed the Health Insurance Portability and Accountability Act (HIPAA).0 HIPAA contained a number of amendments to Medicare and Medicaid laws, and made "health care fraud" a federal crime carrying stiff civil and criminal penalties," though you would not have known it from reading the title. Frequently passed to satisfy the public demand for a governmental response to a perceived crisis, these omnibus bills often become an open
'Pub. L No. 104-132, 110 Stat. 1214 (1996). 66The original House Bill 2768 contained enhanced penalties for the new, broadly- defined federal crime of "terrorism" The Attorney General was authorized to determine when a crime would so qualify. These provisions alarmed civil liberties groups, which feared selective enforcement against organizations targeted for their political views. Under the provisions of the original bill, moreover, there was no judicial review of the Attorney General's certification of a "terrorisf' act or group. See, e.g., Brannon P. Denning, Anti-Terrorism Bill Hits Civil Liberties,COM. ApP. (Memphis, Tenn.), Mar. 10, 1996, atB4availablein1996 WL 3206999 (attacking bill on grounds that it sets up potential abuse of constitutional bill of attainder prohibition); Glenn Harlan Reynolds, Unleashed Federal Power is No Cure for Terrorism, LA. TMES, Mar. 13, 1996, at B9 (describing political atmosphere leading to bill); David Kopel, Terrifying Terror Legislation?,WASH. TAIES, Feb. 6, 1996, at Al4 (cataloging potential infractions of liberty rights in bill). The substitute bill, while omitting the really offensive measures, still showed little regard for civil liberties, and still would have done nothing to prevent the Oklahoma City bombing. But see Note, Blown Away?: The Bill of Rights After Oklahoma City, 109 HARV. L. REV. 2074, 2075-76 (1996) (arguing that most initial proposals were reasonable and that subsequent amendments have made measure less effective). OPub. L No. 104-191, 110 Stat. 1936 (1996). 'See 18 U.S.C. § 1347 (Supp. 1111997).
HeinOnline -- 1999 Utah L. Rev. 973 1999 UTAH LAW REVIEW (1999: 957 invitation for members to satisfy long-standing desires of interest groups. 69 The climate in which these bills are drafted, and the titles they are often given, tend to insulate them from congressional (and public) scrutiny. What member of Congress wants to be painted by opponents as soft on terrorism, street crime, or against affordable health care for working families? Thus, omnibus bills often provide ideal political cover for members' sops to influential constituencies. As with the budget bill, as long as members' individual desiderata are included, members are not willing to rock the boat by complaining about their colleagues' programs and provisions. Were it not for the whole bill, then, it is unlikely that any of the provisions, if proposed individually, would survive the legislative process. Thus, the arguments against the omnibus bill are largely the same as those deployed in the nineteenth century against the corrosive effects of "logrolling," viz., that this vote-trading subverts majoritarian lawmaking and is tantamount to institu- tional bribery.
D. IncreasingAccountability of Congress and Its Members
Last-minute riders and omnibus bills make it difficult for the most informed citizen to keep track of legislation and, as a consequence, to keep an eye on legislators7 0 While our proposal would not cure voter apathy, it would certainly make it easier for those who are so inclined to keep abreast of legislation affecting them or their interests, as lawmakers would no longer be able to hide important provisions in the folds of a broad title. In addition, requiring legislators to submit their pork to scrutiny through the normal lawmaking process would also clarify who is really responsible for legislative boondoggles and provide a corrective to a perennial problem in American
69See SINCLAIR, supra note 18, at 64 ("Many of the bills generally labeled omnibus are money bills of some sort. The most common omnibus measures in the contemporary Congress are budget resolutions and reconciliation bills, both of which stem from the budget process."). But see id. at 134-150 (describing crafting of omnibus drug bill by then-Speaker Jim Wright; decision to use omnibus bill based on fact not only that "the drug problem is multifaceted" and that "education, treatment, interdiction, prosecution, and punishment were all necessary parts of an effective antidrug strategy," but also on Speaker Wright's recognition "that an omnibus bill would garner much more media attention than would a group of narrower bills and thus yield more credit"). "°See, e.g., Garrett, Structures, supra note 7, at 425 ("Although the formulation of the federal budget lies at the heart of governing, it is a complex process in which important decisions can be hidden in omnibus bills or through the use of dense, technical language. The impact of individual decisions is difficult to ascertain. Once a decision becomes public, lawmakers can disavow responsibility, claiming they had no choice but to vote for a bill that also contained programs important to their constituents.').
HeinOnline -- 1999 Utah L. Rev. 974 1999 No. 4] UNEASY RIDERS 975 politics: the belief of many voters that "my legislator is okay, but yours is a 71 crook." Similarly, the Truth-in-Legislation Amendment would make Congress itself more accountable by forcing members to complete its business on time. 2 The present system almost guarantees that Congress will delay contentious issues until the last possible minute. Then in a flurry of activity, it produces a spending bill of herniating proportions that often includes important legislation deserving of considerable congressional deliberation. Our proposal would ensure that such a legislative megillah like the recent budget, even under the most liberal interpretation of "one subject," would be 73 struck down. Our proposal should also be popular with members of Congress growing weary of what one writer recently called the atmosphere of "permanent insurrection."7' 4 One of the ironies of the 104th Congress's imposition of term limits on the House leadership is that it has made members, many of whom are serving under their own self-imposed term limits, immune to demands from the party leadership that they toe the party line.75 Congressional short- timers, thus "constitute a kind of roving band of mercenaries who wander the House floor, looking for someone to topple. They have no incentive to work
71 See, e.g., HARRIS, supranote 1, at 7 ("[W]hen asked, a majority of the people who said that they did not approve of the job Congress was doing said nevertheless that they liked their own members of Congress."); HIBBING & THEISS-MORSE, supra note 1, at 11 ("Citizens decry pork-barrel politics in general but are delighted when their own representative is successful in playing the game."). Harris suggests that the voters' cognitive dissonance can be attributed to the expectation voters have that lawmakers perform representation functions as well as lawmaking functions. HARRIS, supra note 1, at 8. 'Senator Byrd complained that the 1999 Budget resulted from Congress' failure "to enact our regular appropriation bills on time .... Senators are being asked to vote on this massive piece of legislation that provides funding of nearly one-half trillion dol- lars-approximately one-third of the entire Federal budget-without adequate opportunity to consider it or amend it." Byrd, supra note 9. 'For more on the proper standard of review for legislation, see infra Part VILB. 74See David Grann, PermanentInsurrection, THE NEW REPUBLIC, Nov. 30, 1998, at 24. 7'See id. at 25. Grann locates the source of House discontent with a new rule limiting committee chairmen to only three terms and the speaker of the House to four. Slipped into a rules package in the first heady hours of the Republican revolution, it was supposed to contain lawmakers' ambitions; instead, it has unleashed them. ... "The rule changes have created total chaos," explains Representative Joe Scarborough of Florida. They're "the dumbest thing we've ever done," adds Resources Committee Chairman Don Young of Alaska. Even more destabilizing, though, are some of the members' self-imposed term limits .... Id. Cf. Guy Gugliotta, Term Limits on Chairmen Shake Up House, WASH. POST, March 22, 1999, at A4 (describing problems posed by term limits imposed on tenure of committee chairmen by Speaker Newt Gingrich in 1994).
HeinOnline -- 1999 Utah L. Rev. 975 1999 976 UTAH LAW REVIEW [1999: 957 within the system-and no fear of reprisals from the Speaker., 76 These congressional ronin are a primary source of guerilla tactics like appending public policy riders to appropriations bills. Our proposal would curb such rogue power, because any legislative act could be challenged in court. The disruption attending a court challenge to a major piece of legislation, and the attendant publicity for the sponsors of riders, may deter their inclusion in the first place."
IV. THE TRUTH-IN-LEGISLAION AMENDMENT INCONTEMPORARY CONSTITUTIONAL AND LEGISLATIVE THEORY
As it happens, our proposal also sounds an harmonious note with current theories of the legislative process and constitutional law. The Truth-in- Legislation Amendment is consistent with public choice theory, which portrays congressional lawmakers as self-interest maximizers who legislate for the benefit of well-organized interest groups poised to help reelect them, while spreading the costs of legislation over groups of an unorganized mass of persons of heterogeneous interests, i.e., the general electorate. Our proposal also accords with representation reinforcement theory by freeing the channels of political representation of obstructions, and by generally contributing to a more transparent lawmaking process. Further, the Amendment seeks to constitutionalize what Judge Hans Linde has termed "due process of lawmaking."
A Public Choice Theory
Public choice theory offers a lens through which to view the problem of riders and omnibus legislation, and also provides a sound theoretical justification for our proposed Amendment. The various theories of legislation loosely termed public choice theory arose largely as a reaction to pluralist theory of democracy that dominated political science scholarship in the 1950s
76See Grann, supra note 74, at 25. 'The Senate, for example, having received a spate of unfavorable commentary on the custom whereby any member could place a bold on consideration of a particular nomination, finally ended the practice of secret holds. Now members must report their placing of a hold to the Senate leadership. See, e.g., Walter Pincus, Loll and McConnell Also Have 'Hold' on Holbrooke, WASH. POST, July 7, 1999, at A4 ("By tradition, any member of the Senate can hold up a nomination. But the practice of blocking nominations anonymously, as a bargaining chip in unrelated matters, has come under growing criticism. After years of arguing about the practice, Republican and Democratic leaders agreed this year to do away with it") The only catch is that the leader is not required to make those names public, nor to reveal when the leader himself has placed a hold. See id. For criticism of the practice, see Richard Cohen, Holbrooked, WAH. PosT, July 13, 1999, at A19.
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and 60s 8 According to the pluralist theory, legislation resulted from compromise among various organized interest groups that competed for legislative attention.79 As more groups organized, pluralists contended, more views would be represented in the lawmaking process, thus resulting in more informed decisionmaking among lawmakers. Public choice theory challenged this sanguine view of the legislative process. First, economists like Mancur Olson noted the presence of the collective action problem that made it more difficult to organize large groups of persons with relatively diffuse interests and easier to organize small groups of people with narrow interests.8" Part of the problem was the presence of free riders in large groups, i.e., those who would share in the benefits of the group labors, but prefer to enjoy those benefits without sharing in the costs of producing them. The problem is particularly acute when it comes to public goods, i.e., those goods-like general legislation-whose benefits are enjoyed by all, when the large group has no way of limiting the benefits to the members of the group who actually contribute.8 These small organizations can, because they are so effective, wield disproportionate influence in Congress. Moreover, the sort of legislation they often seek is very beneficial to them, and the costs of the legislation are shared by large numbers of people, who, because of the collective action problem, are difficult to organize to prevent the transfer. This activity is known among economists as rent-seeking. Lawmakers often have tremendous incentives to assist these small groups because the groups are able to provide money, favorable publicity, and votes for that lawmaker. Conversely, if spurned, lawmakers know that those same groups have the ability to hurt them at the polls. To use Professor Glenn Reynolds' terminology, riders and other hidden provisions operate as parasites on host legislation.82 And, as Jonathan Rauch
78For a good summary of the pluralists' claims, and the critical response, see DANIEL A. FARBER & PHuIP P. FRIcKEY, LAw AND PuBuic CHOICB: A CRIrICAL INTRODUcTION 12-62 (1991); Peter H. Schuck, The PoliticsofEconomic Growth, 2 YALE L. & PoL'Y Rv. 359,360- 62 (1984) (review essay), and sources cited therein. See also RAucH, supra note 1, at 59. 79 See Schuck, supra note 78, at 360 (writing that pluralists "emphasized the open, unimpeded processes of group formation, the variety and multiplicity of groups in politics, and the socially desirable equilibria to which groups' complex interactions naturally led"). "See MANCUR OLSON, Tn LOGIC OF COLLE ACTION passim (1965). 81See Schuck, supra note 78, at 362. A public good is one that, once supplied to any individual, cannot feasibly be withheld from others.... By waiting for others to contribute [to the production of a public good], each can hope to enjoy its benefits without sharing in the costs necessary to produce it. • Public goods, in short, fall victim to a massive "free rider" effect. Id. 'See Glenn Harlan Reynolds,IsDemocracyLike Sex?, 48 VAND. L REV. 1635,1642-43 (1995).
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has observed, parasites force the host to take measures to resist them.83 Our Amendment would spotlight the most egregious forms of this activity, making bills laden with material not germane to the general subject of the bill vulnerable to judicial invalidation.84 Members would be free to seek rents for special interest groups to their hearts' delights, but would have to do it under the glare of media (and constituent) scrutiny.
B. RepresentationReinforcement Theory
John Hart Ely's work Democracy and Distrust" articulated a theory of judicial review that, while retaining elements of judicial restraint advocated by the Legal Process school of the 1950s and 60s,86 avoided the conclusions
8RAuCH, supra note 1, at 73. Rauch writes: In the economy, as in nature, a parasite is set apart from a mere freeloader by its ability to force its target to fend it off. This is the sense in which transfer seekers are, not so loosely speaking, parasitic: they are not only unproductive themselves, they also force otherpeople to be unproductive. Id. 24Professor Cass Sunstein, after undertaking a survey of substantive constitutional restrictions on legislation, argued that these restrictions support the judicial invalidation of what he terms "naked preferences." See Cass R. Sunstein, Naked Preferences and the Constitution, 84 CoLUM. L. REv. 1689,1689 (1984). The dormantCommerce Clause doctrine, the Takings Clause of the Fifth Amendment, and the Due Process Clause of the Fifth and Fourteenth Amendments, Sunstein writes, were "aimed at a single evil the distribution of resources to one person or group rather than another on the sole ground that those benefited have exercised the raw political power needed to obtain government assistance." Id. at 1730. While Sunstein's argument that this anti-preference principle is "the best candidate for a unitary conception of the sorts of government action that the Constitution prohibits," is a quite persuasive and an excellent example of "penumbral reasoning," it has not been embraced by the Supreme Court. See Brannon P. Denning & Glenn Harlan Reynolds, Comfortably Penumbral,77 B.U. L. REv. 1089, 1090 (1997) (describing penumbral reasoning as courts' willingness to supplement text, precedent, and history with inferences from related constitutional provisions, structure of the constitution, and underlying principles). We think our proposal here retains the benefits of Professor Sunstein's proposal, but improves upon it by providing a textual source for invalidating naked preferences, thus remedying the uncertainty and mutability of his penumbral proposal. Proponents of judicial restraint might be suspicious of a doctrine that tends to expand, without a clear textual mandate, judicial oversight of the legislative process, and would thus prefer the Article V amendment route. sJOiN HART ELY, DEMOCRACYAND DISTRUsT:ATHEORYoFJUDICIAL RBvIBWpassim (1980). 6See HENRYM. HART,JR. &ALBERTM. SACKS, THE LEGALPROCESs: BASIC PROBLEMS IN THE MAKING AND APPuCATION OF LAW passim (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994).
HeinOnline -- 1999 Utah L. Rev. 978 1999 No. 4] UNEASY RIDERS 979 of professors like Herbert Weschler' and Alexander Bickel,88 and jurists like Learned Hand8 9 and Felix Frankfurter, 90 that courts should almost never override the process of majoritarian lawmaking, because of their presumption that the majority had the right to be mistaken.9' The judiciary, they main- tained, should not operate as a "bevy of Platonic guardians"; indeed, it approached illegitimacy when it did so lightly.92 Ely agreed that the results of the political process are due respect,93 but only if the procedures by which decisions are made are fair and open. The Constitution, Ely wrote, "is overwhelmingly concerned, on the one hand, with procedural fairness in the resolution of individual disputes (process writ small), and on the other, with what might capaciously be designated process writ large-with ensuring broad participation in the processes and distribu- tions of government." 94 Racial discrimination and malapportionment had often operated to skew the results of majoritarian lawmaking. Therefore, in those situations in which the majority had succeeded only by stifling minority95 voices, the judiciary had a role to play in restoring a level playing field. Similarly, Ely wrote, courts should be suspicious of legislative decisions that
'See Herbert Wechsler, Toward NeutralPrinciples of ConstitutionalLaw, 73 HARV. L. REV. 1, 7-9 (1959). 83See ALxANDER M. BICKEL, TZM LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THEBAROp POLricS 16-23 (1962). 8See LEARNED HAND, Tm BILL OF RIGHTS 27-30 (1958). '°See Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 599 (1940) ("Except where the, transgression of constitutional liberty is too plain for argument, personal freedom is best maintained-so long as the remedial channels of the democratic process remain open and unobstructed-when it is ingrained in a people's habits and not enforced against popular policy by the coercion of adjudicated law.'") (footnote omitted); see also West Virginia State Bd. of Educ. v. Bamette, 319 U.S. 624, 650 (1943) (Frankfurter, J., dissenting) (the Framers "did not grant to this Court supervision over legislation," but viewed "the narrow judicial authority to nullify legislation... with ajealous eye" because it "prevent[s] the full play of the democratic process'). 9 See ELY, supra note 85, at 87. 'See HAND, supra note 89, at73. 93See ELY, supra note 85, at 87 ("ITihe selection and accommodation of substantive values is left almost entirely to the political process"). HId. (footnotes omitted). "See id.at 103. In a representative democracy value determinations are to be made by our elected representatives, and if in fact most of us disapprove we can vote them out of office. Malfunction occurs when the process is undeserving of trust, when (1) the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out, or (2) though no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognize commonalities of interest, and thereby denying that minority the protection afforded other groups by a representative system.
HeinOnline -- 1999 Utah L. Rev. 979 1999 980 UTAH LAW REVIEW [1999:957 externalized costs, :forcing them on those unrepresented in the lawmaking 96 body, like foreign corporations or out-of-state citizens. The Truth-in-Legislation Amendment, too, attempts to correct blockages in the congressional lawmaking process caused by a willingness of legisla- tures to oversupply legislation for well-organized interest groups, to the exclusion of unorganized constituents. The Amendment is aimed at blockages imposed by well-positioned legislators who can, through riders, impede legislation in order to exact tolls or advance a partisan agenda at the expense of other lawmakers or the executive branch. Our proposal also aims at a "Visible Legislative Process" that "flush[es] out legislative purposes so that
'6See id. at 83-84.
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C. Due Process ofLawmaking
Almost a generation ago, Hans Linde sketched a model of "due process of lawmaking" that criticized legislators for taking advantage of limited judicial review of most legislation by passing laws without knowing how or whether a particular law would work, or worse, by passing laws without
"Id. at 125. Ely expresses some skepticism about judicial attempts to force legislatures to state their purposes, so they can be tested for impermissible purposes. See id. at 125-29. Ely thinks that "the most effective way to get our representatives to be clearer about what they are up to in their legislation is to get them to legislate:' Id. at 131. We agree, and our proposal seeks to do just this by closing off opportunities to sneak legislation of dubious general utility in under the public radar. It does not restrict Congress' ability to legislate, but merely subjects that process to greater scrutiny both within Congress and among voters. Of course we do hope that the procedures the Amendment requires Congress to follow does influence the substance of its work product in ways described in Part IlL Some scholars have criticized Ely's theory for shortchanging the substantive values embodied in the Constitution. See generally Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 Yale LJ. 1063 (1980); see also LAURENCE H. TRIBE, AMERICAN CONSTTUTIONAL LAW § 16-33, at 1615 n.32 (2nd ed., 1988) ("It has been argued that substantive rather than purely process-based constitutional values support court protection of the victims of racial and ethnic prejudice, and that, in general, 'procedural' failure cannot explain heightened review of government actions injuring various minorities."). One such value, prominent in recent constitutional scholarship, is that of majority popular sovereignty. Professor Akhil Amar argues that popular sovereignty is not just a good idea, but a substantive value embedded in the text and structure of the Constitution. See, e.g., Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L. 1425 (1987) [hereinafter Amar, Sovereignty]. Professor Amar's belief that majority popular sovereignty is perhaps the substantive value of the Constitution is perhaps best illustrated by his writings on constitutional amendment, which he claims may be effected-the procedures of Article V notwithstand- ing-by a simple, national majority vote. See, e.g., Akhil Reed Amar, Consent of the Governed: ConstitutionalAmendmentOutsideArticle V, 94 COLUM. L.REV. 457 (1994); Akhil Reed Amar, PhiladelphiaRevisited, 88 U. Cm. L.REV. 1043 (1988). Here, too, our Amendment arguably advances the interests championed by scholars like Professor Amar. The Framers' anti-oligarchical vision of Congress merely acting as the agents of its sovereign principal, "We the People," is very much in tension with the present system whereby individual members of Congress can hold necessary legislation hostage to that member's whims or parochial interests, and force concession of pet projects or pet policies for favored constituents. See Amar, Sovereignty, supra, at 1427 ("Guided by emerging principles of agency law and organization theory, the Federalists consciously designed a dual-agency governance structure in which each set of government agents would have incentives to monitor and enforce the other's compliance with the corporate charter established by the People of America.") (footnote omitted). Of course, under the proposed Amendment, nothing would prevent Congress from enacting these provisions separately, but it should be able to enact them (or not) freely, evaluating the legislation on its merits, and not under duress.
HeinOnline -- 1999 Utah L. Rev. 981 1999 982 UTAH LAW REVIEW [1999: 957 knowing anything about them.9 "Rational lawmaking," Linde wrote, "obliges [a] collective body to reach and to articulate some agreement on a desired goal" and "oblige[s] legislators to inform themselves in some fashion about the existing conditions on which the proposed law would operate, and about the likelihood that the proposal would in fact further the intended purpose."99 Linde argued that these responsibilities implied others:
The projections and assessments of conditions and consequences must presumably take some account of evidence, at least in committee sessions. A member who never attends the committee meetings should at least examine the record of evidence before casting a vote, or be told about it, and should certainly never vote by proxy. The committee must explain its factual and value premises to the full body. Surely there is no placefor a vote onfinal passage by members who have never read even a summary of the bill, let alone a committee report or a resume of the factual documentation.. . .These kinds of demands are implicit in due process, if lawmakers are really bound to a rule that laws must be made as rational means toward some agreed purpose.1°0
Yet, Linde felt that the only lawmaking process that approximates the model he sketched was the administrative process. 0 1 Legislatures can and do sometimes make laws without undertaking a sincere effort to accumulate a sufficient factual basis on which they can make effective legislative decisions. Because of the rational basis standard which courts apply in the exercise of judicial review, such statutes will largely be immune from challenge.' 2 Linde criticized this approach to lawmaking as "indefensible when one takes seriously the notion that due process commands a legislature first to agree on a purpose and then to assess the efficacy of the proposed means to accomplish it.YP0 Taking up the question, "What might 'due process of law' mean in lawmaking?, 104 he answered that, at a minimum, laws taking life, liberty, or property must accord with "a legitimate law-making process."105 As he realized, though, this merely begged the question, "Which 'lawmaking processes are legitimate and which are not."' 1" One of the concerns of a legitimate lawmaking has been the integrity of the process itself: "In the 19th
9 Hans A. Linde, Due Process of Lawmaking, 55 NBa. L. REV. 197 (1976). 99MId.at 223. 10Id. at 224 (emphasis added). ...See id. at 225. '02See id. at 225-26. 03 1' d. at 226-27. 04Id. at 239. 051d. 106Id.
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century, the reaction to legislative recklessness, ignorance, logrolling, and corruption led to constitutional strictures on the forms and procedures of enactment [like single-subject and subject-title requirements], some of which we now find inappropriate."'" Later, the initiative and referendum were employed to secure legitimacy.1°8 In any case, Linde's point was that legitimate lawmaking procedures are defined from time to time, and that the rules are laid down so that legislators and laypersons alike can judge for themselves whether a legislature is operating according to the rules or not:
If a legislative body fails to reapportion itself when required, if it stops the clock in order to enact bills after the constitutional deadline, if absent members are counted as part of a quorum or as having voted, if impractical requirements for reading bills are ignored, the participants know that they are not complying with the constitution or can readily be reminded of it by anyone. . . .Those who cut procedural corners will argue practical justifications; they will deny culpability if no substantive injustice results, and the fact that improperly made laws are not invalidated no doubt encourages this pragmatic view; however, they will not claim ignorance of the rules.' 9
Yet, wrote Linde, "[tihe problem with due process in lawmaking lies in the consequences of its violation. When a law is promulgated without compliance with the rules of legitimate lawmaking, is it not a law?"' 0 Noting that courts are often unwilling "to question legislative adherence to lawful procedures," Linde termed this reluctance, when phrased as "a problem of' proof, or of respect between coordinate branches," merely "rationaliza- tions." ' Courts are no more likely to be the target of public opprobrium when they strike down a statute for violating procedural require- ments-irregularities that are easily corrected-than when they invalidate the 2 substance of a given law." Nevertheless, Linde admitted that:
the question of the consequences of noncompliance remains an obstacle to simply equating due process and compliance with prescribed rules for lawmaking.... [C]ourts will not relieve individuals of the application of
l7Id. at 241 (footnote omitted). 's°See id. I-Id. at 242 (footnotes omitted). n0 d. "id. at 242-43. "Id.at 243 ("It is far more cause for resentment to invalidate the substance of a policy that the politically accountable branches and their constituents support than to invalidate a lawmaking procedures that can be repeatedly corrected, yet we take substantive judicial review for granted.).
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a law on every showing that it was improperly enacted. They are reluctant to visit the past sins of its legislative fathers on an otherwise inoffensive statute ....
This means either that courts tolerate violations of due process of lawmaking or that not every procedural defect constitutes a violation of due process." 4 Linde then asked the question what "can 'due process' sensibly mean as a constitutional standard for lawmaking[?]""' 5 Instead of seeking judicial review of the substance of legislative acts, he urged that thought should be given to what constitutes legitimate lawmaking process. While acknowledg- ing that his focus on process as opposed to substance was a heresy that made the wholesale acceptance of his theory unlikely," 6 he concluded with the observation that attention to process is important because:
[i]f this republic is remembered in the distant history of law, it is likely to be for its enduring adherence to legitimate institutions and processes, not for its perfection of unique principles of justice and certainly not for the rationality of its laws. This recognition now may well take our attention beyond the processes of adjudication and of executive7 government to a new concern with the due process of lawmaking."
At the heart of Linde's due process of lawmaking model, then, is a concern with procedural integrity and legislative honesty, which in turn assure that the substance of the legislative process is seen by the public as legitimate. One of the problems with the legislative process today is that its results are often seen by the public as the result of back-room, under-the-table deals between incumbents and organized special interests. Certainly the procedures used to pass bills like the Fiscal Year 1999 budget do little to foster a sense that the process is not, as it seems, opaque and sleazy." 8 However, as Linde recognized, there is a difficulty in both separating legitimate and illegitimate lawmaking procedures, and in devising ways for the judiciary to enforce any such standards. Professors Eskridge, Frickey, and Garrett point out that the Supreme Court has flirted with due-process-of- lawmaking standards in requiring judicial deference to reasonable agency
1131d at 245. " 4See id. I"Id. at 251. " 6See id. at 254 (because to "judge legislation as a process, not as a product, not only drives courts toward the problems of standards and of sanctions that we have touched on, it also requires them to deny validity to some excellent enactments while sustaining deplorable ones that have been faultlessly made"). "7Id. at 255. "'See infra note 151 (quoting defender of pork barrel politics admitting that appropria- tions process is "sleazy").
HeinOnline -- 1999 Utah L. Rev. 984 1999 No. 4] UNEASY RIDERS 985 interpretations of statutes (the so-called Chevron doctrine"19) and in a clear statement canon of statutory construction in which the Court will not presume a congressional intent to alter federalism arrangements. 20 Yet, "[i]f due process of lawmaking is intended to improve legislative decisionmaking, why should we rely on the relatively indirect mechanism of judicial review?'' They note that Congress may be unaware of these judicial techniques, or forget them, or ignore them "in the hope that a particular law will never face a judicial challenge .... 122 They suggest:
Why not approach the problems of deliberations and decisionmaking more directly through the use of internal legislative rules and procedures designed to foster full and transparent deliberation? A framework that affects a substantial amount of congressional business may be more salient23 to lawmakers and the public than the occasional judicial pronouncement.'
As they later concede, however, these internal rules can be waived or suspended (and usually are, particularly when Congress is facing a 24 deadline). Our Amendment is offered in the spirit of Linde's cri d'coeur, and with Professors Eskridge, Frickey, and Garrett's desire to rely on procedures of which all the parties have notice, but with better prospects for enforcement than that which they offered. Instead of having to rely on legislators' collective sense of public duty, our proposal will carry the authority of an Article V amendment and the imprimatur of not only congressional supermajorities, but also the broad and deep approval necessary for state ratification. By constitutionally def'ming a due process of lawmaking, our Amendment would not only create the possibility of judicial enforcement, but also establish a baseline against which lawmakers' actions could be measured-regardless of whether the judiciary had an opportunity to enforce it. As Judge Linde put it:
We do not assume that a law has been constitutionally made merely because a court will not set it aside.... Other participants than the courts have the opportunity, and the obligation, to insist on legality in lawmaking. ... A governor or a president ought to veto, on constitutional grounds, a bill that he knows to have been adopted in violation of a constitutionally
'See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). "See ESKRIDGE, FRIcKEY & GARRET, supra note 36, at 177-78. '2'Id. at 179-80. mId. at 180. MId. mSee id. at 183-84.
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required procedure, even though the courts would not question its enactment. If an attorney general advises prosecutors not to enforce a law enacted with the clocks stopped after a constitutional deadline, he acts to maintain due process despite the fact that a conviction under the law would be sustained.... It is not mere theory to distinguish between constitutional law and judicial review.1 5
V. THE TRUTH-IN-LGISLATION AMENDMENT AND EXISTING CONSTITUTIONAL RESTRAINTS ON CONGRESS
Substantive restraints126 on Congress' legislative power are not unknown to the Constitution. Though lacking the insights of the University of Chicago economics department, the Framers nevertheless managed instinctively to grasp the spirit of the contemporary theories-especially public choice theory-described in the previous part. Consequently, the Framers built into the Constitution a number of provisions with which the Truth-in-Legislation Amendment will be quite at home. The very enumeration of powers is itself a limit: Article I vests Congress only with the "legislative powers herein granted."'" Moreover, Article I, § 9 lists laws that Congress may not pass. Congress may not suspend the writ of habeas corpus in peacetime12"; pass bills of attainder and ex post facto laws129; impose taxes or duties on exports "from any state" 30 ; or grant titles of nobility,13 1 to name a few restrictions. In addition, several enumerated powers themselves contain restraints or limits on their scope; many of these were added at the insistence of delegates at the Philadelphia Convention who were fearful of conspiracies by large states against the interests of smaller ones, or by regional combinations legislating at the expense of the odd region out. Delegates from Maryland insisted that Congress' taxing power include the requirement that "all Duties,
'Linde, supra note 98, at 243-44. "NItcan be argued that the Truth-in-Legislation Amendment is aprocedural,rather than a substantive restriction on Congress, and thus comparisons with the substantive restrictions on congressional power, like those in Article I, § 9, and in the Bill of Rights, are inapposite. However, we think that our Amendment could be characterized as either substantive or procedural; it could fit comfortably in either Article I, § 7, or in Article I § 9. Moreover, given the close relationship demonstrated between the procedures of law and the law's substance, we think that how the Amendment is characterized makes little functional difference. See POPKIN, supra note 36, at § 17.02 (discussing single subject requirement in section entitled "Substantive Limits Based on Procedural Concerns"). 127U.S. CONST. art L § 1. mSee id., art L,§ 9, eL. 1. '"See id., art. I, § 9, cl. 3. 3 1°d., art, § 9, cl.5. 13See id., art I § 9, el. 8.
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Imposts and Excises... be uniform throughout the United States,"'32 and, even then, Luther Martin complained that the so-called "Uniformity Clause" did not go far enough to prevent selective taxation.'33 A uniformity require- ment also appears in the clause granting to Congress the power to establish rules for naturalization and for bankruptcy. 34 Acknowledging that uniformity was one way to prevent the passage of partial or special legislation, the Supreme Court recently held invalid a congressional bankruptcy provision that applied to only one debtor. 35 This reflexive disapproval of what we today would call rent-seeking is also reflected in the "Port Preference Clause" of Article I, § 9,136 which prohibits Congress from granting to the ports of particular states "preferences" in "any Regulation of Commerce or Revenue" over ports in another State; for example, by designating the ports of Virginia and Massachusetts, but not those of Georgia or Maryland, to be duty-free ports. The same clause also prohibits Congress to require that "Vessels bound to, or from, one State... to enter, clear, or pay Duties in another [State]" I These and a few other provisions' 38 illustrate that the Framers understood the vulnerability of lawmaking to interest group pressure; that legislators
mSee id., art 1,§ 8,cl. 1. 'See Luther Martin, GenuineInformation, Delivered to the Legislatureof the State of Maryland (Nov. 12, 1787), reprinted in 3 REcORDS Op TBE FEDERAL CONVEmNION Op 1787, at 172, 205 (Max Farrand ed., rev. ed., 1966). See U.S. CONST. art. I § 8, c. 4. 35See Railway Labor Executives' Ass'n v. Gibbons, 455 U.S. 457, 473 (1982) (concluding that "[tihe uniformity requirement . .. prohibits Congress from enacting a bankruptcy law that, by definition, applies to one regional debtor"; to survive scrutiny a law must at least apply uniformly to a defined class of debtors). 3 1L U.S. CONST. art L § 9, c. 6. 3 Id. See, e.g., U.S. CONST. art. L § 8, cl. 8 (authorizing grant of patents "for limited T'mes" to authors and inventors "ftio promote the Progress of Science and useful arts"); U.S. CONST. art. , § 8, ci. 12 (limiting to two years appropriations for standing armies). Professors Merges and Reynolds argue that the limitation on the patent clause stemmed from the Framers' experiences with the abuse of royal monopolies. See Robert Patrick Merges & Glenn Harlan Reynolds, The ProperScope of the Patent and CopyrightPower, 37 HARV. J. ON .IS. 45 (2000). The Bill of Rights, too, can be understood as a hedge against the agency costs that attend representative governmenL See AKEHL REED AMAR, THE BILL OP RIGHTS: CREATION AND RECONSTRUCTION xiii (1998) ("Mhe Bill of Rights was centrally concerned with controlling the 'agency costs' created by the specialization of labor inherent in a representative government. In such a government, the people ... delegate power to run day-to-day affairs to a small set of specialized government officials ... who might try to rule in their self-interest, contrary to the interests and express wishes of the people.'); Ruhi, supra note 31, at 261 (illustrating how most of the Bill of Rights were prohibitory in nature, and targeted the relationship between government and citizen). Later amendments addressed aspects of governmental operations and regulated inter- or intragovernmental relationships. See id. Under Professor Ruh's schema, the Truth-in-Legislation Amendment would fall in the latter category.
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might be tempted to legislate against the commonwealth for the benefit of well-organized minorities; and that one way to help the legislature avoid the temptation to succumb to that pressure was to limit its legislative authority through procedural and substantive restrictions. As governments at both the federal and state level began to take on more responsibility in the nineteenth and twentieth centuries, the opportunities for legislators to yield to interest group pressures increased dramatically. In addition, the outrageous cost of elections and reelections has placed lawmakers in the position of relying on well-funded groups to finance their campaigns-groups that expect legislators at least to lend a sympathetic ear, if not a facile pen, in return. These problems were recognized and addressed at the state level through innovations like the subject-title clause.'39 We feel confident in putting forth our proposal that the Truth-in-Legislation Amendment is completely consistent with the existing framework of the Constitution, as well as with the Framers' republican vision. It is, in short, a nineteenth-century innovation whose time has come again. Despite our certitude, we are sure that our proposal will encounter doubters. Accordingly, in the next Part we address some of the likely objections to the Amendment.
VI. RESPONSES TO PRAcTnCAL OBJECIONS
Naysayers will likely object that our proposal is impractical, unworkable, unenforceable, or overly burdensome. In this Part, we anticipate and respond to some of these objections, none of which are, even if tenable, insurmount- able.
A Greed is Good
The author of a recent article in The New Republic4 ' raises a "macro" objection to our proposal: It aims to stop a good---even necessary-aspect of our democratic system. Subtitled "[tihe case against the case against pork," Jonathan Cohn's essay declares, "Pork is good. Pork is virtuous. Pork is the American way" and likens pork to the "oil in your car engine" that "keep[s] our sputtering legislative process from grinding to a halt."'' Cohn accuses "high-minded watchdog groups and puritanical public officials," who see their fight against government pork as a series of "epic struggles of good versus evil-of principled fiscal discipline versus craven political self- interest-with the nation's economic health and public faith in government
139 40See TARR, supra note 42, at 118-19. 1 Cohn, supra note 48, at 19. 1 14id. at 23.
HeinOnline -- 1999 Utah L. Rev. 988 1999 No. 4] UNEASY RIDERS 989 at stake," of "ha[ving] it exactly backwards."' 42 In fact, Cohn writes, "pork- barrel spending [is] good for American citizens and American democracy as of criticizing it, we should be celebrating it, in all of its well. Instead ' 3 gluttonous glory.' 1 Cohn's apologia makes four points. First, he argues that pork-busting is often merely a cover for a partisan or ideological agenda. This fact "calls into question [a] group's reliability when it comes to making delicate distinction about what is truly wasteful.""' Second, he argues that the amount of money involved in pork-barrel spending is not really that much. While noting that one watchdog group put the amount of pork in the 1997 budget at "about $13.2 billion," Cohn demurs, "Yes, you could feed quite a few hungry people with that much money .... But it's less than one percent of the federal budgetL"14 Third, Cohn writes, "it's not even clear that all of the $13.2 billion of waste is really, well, waste.",141 Finally, Cohn argues that pork is necessary to make the wheels of the legislative process turn, implying that the elimination of pork would entail the elimination of the useful things that Congress manages to pass each year. 47 Faced with this possibility, concludes of Congress to extract Cohn, the rest of us are better off allowing members 48 what amounts to protection for the good of the nation. None of Cohn's points strikes us as a good argument for preserving the present system. His point about the de minimis cost of pork, when expressed as a percentage of the total federal budget, reminds us of a remark attributed to the late Senator Everett Dirksen: "A billion here and a billion there and pretty soon you're talking about real money."'" This point, moreover, fails to account for the psychic costs that accompany the manner in which this money is appropriated, about which even Cohn himself, who calls the process "sleazy,"' 150 has no illusions:
142Id. at 20. 14 31d. '"Id. at 21. 145Id. I46Id " -47See id. at 23. "See id. For this proposition, Cohn invokes the Framers: The Founders believed that sometimes local interests should trump national interests because they recognized that it was a way to keep federal power in check. It's true this process lends itself to a skewed distribution of benefits, with disproportionate shares going to powerful lawmakers. But again, pork is such a small portion of the budget that "equalizing" its distribution would mean only modest funding changes here and there. Id. 149Quoted in AMERICAN HERITAGE DICTIONARY OF AMERICAN QUOTATIONS 325 (Margaret Miner & Hugh Rawson eds., 1997). '"Id.
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Make no mistake, though: Many pork-barrellers are trying to evade the scrutiny bills get when they move through the normal appropriations process. They stick in small bits of pork after hearings end because they know that nobody is going to vote against a multibillion-dollar bill just because it has a few million dollars of pork tucked in. And they can do so safe in the knowledge that, because there's very little in the way of a paper trail, they will not suffer any consequences.151
Such skullduggery contributes to the public perception that the system is rigged in favor of well-organized groups of special interests which, through campaign contributions, are able to ensure that their legislator will devote time to securing goodies for them, instead of attending to the well-being of his or her other constituents (and that of the nation as a whole). The present * system furthers the perception that Congress is unrepresentative and does nothing but waste money. These costs are not negligible; in part our proposal is aimed at restoring some integrity to the lawmaking process, and at shoring up the public's badly eroded confidence in the ability of Congress to function as it was intended. Cohn's "pork," moreover, represents only one type of legislation. Even if there is a "keeps-the-wheels-turning" justification for payoffs to individual members of Congress, Cohn's defense does not justify attempts to extract other forms of rent-major policy changes, for exam- ple-by attaching riders. Finally, as Jonathan Rauch points out, there is real cost involved in seeking rents,'15 as opposed to committing resources to more socially beneficial uses like research and development:
About the lowest [estimate] is 3 percent of the gross national product a year. At the other end of the range, David Laband and John Sophocleus figured that Americans-including criminals as well as legal transfer- seekers-invested about $1 trillion in transfer activity in 1985, which would have been about a quarter of the GNP that year. However, most estimates cluster in the range of 5 percent to 12 percent of GNP every year. In 1993, that would be $300 billion to $700 billion. If those estimates are in the ballpark, then by hunting for redistributive goodies Americans make themselves about 5 percent to 12 percent poorer 153 than they otherwise would be.
"'Cohn,supra note 48, at 23. "'See RAUCH, supra note 1, at 117. Professors Merges and Reynolds note that certain corporate patent holders now devote more time and money seeking legislative extensions for those patents than to the development of new patentable products. The continuous granting of such extensions, they argue, is at odds with the text and intent of the Patent and Copyright Clause, and should be subjected to strict scrutiny by courts. See Merges & Reynolds, supra note 138, at 12-15. "'RAUcH, supra note 1, at 117-18.
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These numbers, moreover, apparently do not reflect the sums of money expended by persons who stand to lose from such rent-seeking, and are forced 154 to repel parasitic lawmaking. It may be true that many of the items tagged as pork provide returns that justify the initial investment by the federal government, even if the investment initially seems to benefit only a particular district. 155 Cohn criticizes watchdog groups who fail to investigate particular appropriations, and who instead merely "call something waste because it makes a clever pun,'' 56 rather than considering its merits. But given the secrecy in which these items are added to bills, should the burden of proving their economy and utility really be on groups trying to monitor the lawmaking process? We think not. The Truth-in-Legislation Amendment aims to drag some of this activity into the light. Cohn should agree: If a particular measure is desirable, then let the representative or senator submit it for the approval of his colleagues (and constituents) after due consideration. Otherwise, let them explain to the people that these sorts of measures are necessary to enable Congress to do its business; let voters hear powerful members explain that they are entitled to particular appropriations by virtue of their position, their seniority, or for providing a key vote. If courts were able to strike down legislation containing their non-germane measures, these members could not serve as the squeaky wheels that require greasing with pork so that needed legislation can slide past. Even if Cohn is correct, and the distribution of pork does have salutary effects, our proposal would not stop all pork-barrel politics. Even under a fairly strict enforcement regime, bills dealing with necessarily general appropriations-transportation, agriculture, defense, and the like-still offer ample opportunity for legislators to play Santa Claus. Our Amendment, though, would expose more such rent-transfers to the antiseptic effects of
'Again, Rauch provides a colorful characterization. Distinguishing a parasite from financiers, brokers and other assorted financial middlemen, Ranch writes that they "flunkD the basic test: [they are] not forcing anyone else to fend [them] off... A bad stockbroker or a pesky real estate agent can take your money if you do hire him, but only a transfer-seeker can take your money if you don't hire him." Id. at 73. Describing how the passage of several large federal regulatory statutes in the 1970s resulted in a "'parasite culture' of lobbyists, trade associations, journalists, and similar government hangers on" Fred Barnes wrote, "[s]oon the city was thick with 'public interest' outfits pressing for strict enforcement. To combat them and cope with new regulations, corporations hired more and more Washington lawyers." Fred Barnes, The ParasiteCulture of Washington: Take the Money and Stay, THE NEW REPUBLIc, July 28, 1986, at 16, quoted in PETE W.MORGAN& GLENN H.REYNOLDS, TIB APPEARANCE OF IMPROPRIETY: HOW TBE ETmics WARs HAvE UNDERMINED AMERICAN GOvERNMENT, BusWNESS, AND SoCIETY 192 (1997). I55See Cohn, supra note 48, at 21-22. !Id. at 22.
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publicity and curb the practice of using appropriations bills to pass otherwise controversial legislation. The inability of Congress to aggregate different appropriations bills into one giant bill might also take away the incentives for members from, say, an agricultural district, to support measures in the defense appropriations bill designed to benefit districts with huge defense plants, because the agricultural appropriations are not tied up in the same bill as defense appropriations.157
'"Professor Gillette has suggested that "the vagaries" of a single-subject standard are "insurmountable" and that "the proper judicial response to a claim that the standard has been violated should be framed in terms of the relative capacity of courts to identify and distinguish positive-sum and negative-sum logrolls." Gillette, supra note 36, at 658. Professor Gillette doubts that courts have advantages over the legislative processes to "resolve the ambiguity about the existence of a proscribed 'single subject' .'Id. He also questions whether logrolling is as inherently bad as we have suggested it is. See id. at 659-60 (suggesting that logrolling enables minority interests to achieve support for their proposals that would not otherwise garner majority support). He also points out that single-subject bills, at most, eliminate simultaneous trades (intra-act logrolling), while leaving in place lawmakers' opportunities for nonsimultaneous trades (inter-act logrolling). See id. at 661 ("Those who trade though a multiple-subject act have the alternative of logrolling the same provisions by trading votes when each subject is separately considered.') (footnote omitted). The latter, he argues, will likely be chosen for the most egregious or objectionable trades. See id. at 661-63. While acknowledging that a number of factors make simultaneous trades easier to perform, he warns that "it is easy to overstate the strength of these incentives for simultaneous trades." Id. at 662. A legislator's status as a repeat player and the low turnover rate for legislatures in general mean that one would be less likely to welch on a deal to trade votes for separate pieces of legislation. See id. Professor Gillette concludes that "legislators would tend to choose nonsimultaneous trades for the most obvious or egregious logrolls, because these combinations would be most susceptible to challenge and judicial invalidation.... Ironically, the result is that most legislation attacked as violative of the single-subject rule will. . . not emerge from the kinds of logrolls at which the constitutional provision is aimed." Id. at 663. Even given the fact that legislators are repeat players, it does not follow that, if enforcement of our Amendment eliminates significant amounts of simultaneous logrolls, temporally-extended logrolls will necessarily pick up the slack. If our purpose of providing much more public (and media) scrutiny of the appropriations process succeeds, then certain spending measure that would otherwise have been hidden away might become politically untenable, even though a legislator has given his word to another to vote for it in exchange for a previous vote. Moreover, Professor Gillette's skepticism about the ability to define "subjece' in a meaningful way may not even apply to many instances described above, see supra notes 57-64 and accompanying text, where riders, unrelated to host legislation under even the most liberal interpretation of "subject," are intended to gain passage for major policy changes on the backs of must-pass legislation. Finally, we are not convinced that state court reticence to enforce the provision, which may be abating somewhat, would necessarily apply were our Amendment to become part of the Constitution. Because it is an amendment that we propose, alternatives to judicial enforcement could be written into the provision itself, so that the judiciary would not be the sole enforcer. See infra notes 189-190 and accompanying text.
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B. Title-Subject Requirements Haven't Been Effective in the States
While single-subject requirements "represent an important limit on [state] legislative authority and illustrate the result of public disillusionment with legislative abuses,"'15s actual invalidation of state legislation is a relatively rare occurrence."5 9 In large part, this is due to the deference given to the legislative process' 60 -emphasized repeatedly in state court deci- sions-and an unwillingness on the part of the courts to convert title-subject provisions into obstacles to "proper and needful legislation,"' 6' or to otherwise embarrass the legislature.162
'Robert F. Williams, State ConstitutionalLaw Processes, 24 WM. & MARY L. REV. 169, 205 (1983) [hereinafter Williams, Processes]. 'But see infra note 172. '"In its strongest form, this deference can take the form of total judicial abnegation of the clause. The Ohio courts have taken this position. See State v. Celeste, 464 N.E.2d 153, 156 (Ohio 1984) (rule is "directory, rather than mandatory") (footnote omitted); State v. Franklin County Bd. of Elections, 580 N.E.2d 767. 769 (Ohio 1991) (holding that "courts have discretion 'to rely on the judgment of the General Assembly as to a bill's compliance with the Constitution") (citation omitted). Yet, in these same opinions, the Ohio high court has indicated that extreme cases were judicially cognizable. See, e.g., Franklin Co. Bd. of Elections, 580 N.E.2d at 769 (reserving right to invalidate enactments "due to a manifestly gross and fraudulent violation of [the subject-title requirement]" (internal quotation marks omitted)); see also Celeste, 464 N.E.2d at 157 (holding that provision will be enforced against "manifestly gross and fraudulent violations" of provision (internal quotation marks omitted)). As suggested by the courts' language, the standard for proving such violations is high. See id. (opining that when there is "an absence of common purpose or relationship between specific topics in an act and when there are no discernablepractical, rational or legitimate reasonsfor combining the provisions in one act, there is a strong suggestion than the provisions were combined for tactical reasons . . . " (emphasis added)). But see id. (stating that mere "combination of provisions on a large number of topics, as long as they are germane to a single subject, may not be for the purposes of logrolling but for purposes of bringing greater order and cohesion to the law or of coordinating an improvement of the law's substance"). It appears that the Ohio judiciary's reliance on the legislature to police itself is misplaced. One Ohio legislator introduced a measure that would require a "Legislative Services Commission" to flag constitutionally-suspect bills, in an effort to put teeth in Ohio's moribund single-subject requirement. His measure was opposed by a colleague who voiced the opinion that it was not "the Legislative Service Commission's---or even the legisla- tWre's-place to determine constitutionality .... The only real opinion is the one from the court,"' he said. Paul Souhrada, Lawmaker Wants Others to Stick to Subject, THm PLAIN DEA.ER (Cleveland, Ohio), Feb. 2, 1998, at5B, availablein 1998 WL4118477. So, in Ohio, the courts rely on the Legislature to give effect to the provision, which in turm disclaims responsibility for the constitutionality of its handiwork. Cf JosEPH HELLER, CATcH-22 (1961) ("That's6 some catch, that Catch-22."). 1'Harding v. K.C. Wall Products, 831 P.2d 958, 969 (Kan. 1992) (quoting State v. Reeves, 666 P.2d 1190, 1192 (Kan. 1983)). 'See, e.g., Hammerschmidt v. Boone County, 877 S.W.2d 98, 102 (Mo. 1994) ("This Court will resolve doubts in favor of the procedural and substantive validity of an act of the legislature . . . [W]e ascribe to the General Assembly the same good and praiseworthy
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Those states whose courts regard the subject-title provision as manda- tory, not hortatory, and thus are willing-in theory-to enforce it, often set high standards that litigants must overcome. Many courts will only enforce the provisions against gross or clear violations.163 As to what constitutes such a violation, there are many tests that express the same basic idea. Courts have generally resisted a formalistic reading of the statute that converts every deviation from the subject-title provisions as grounds for invalidation.164 Most courts measure the act against the purposes of the constitutional provision: to curb logrolling and to prevent the public or other legislators from being misled about the nature of the legislation. 65 This purposive approach has, in many cases, led to the single subject requirement being collapsed into the title requirement so that as long as the multiple subjects are expressed in the title, there is no violation. Similarly, courts often broadly construe the single subject requirement, allowing the inclusion of material that is reasonably connected with, germane to, related to, or having any legitimate connection with, and not incongruous or disconnected to a single purpose or a general subjectL66In the words of the illinois Supreme Court:
motivations as inform our decision-making processes.") (citation omitted). " See, e.g., People v. Dunigan, 650 N.E.2d 1026, 1035 (1L 1995) ("This court has held ...that a legislative enactment violates the single-subject requirement only when the statute, on its face, clearly embraces more than one subject."); Franklin County Bd.of Elections,580 N.E.2d at 769 ("'manifestly gross and fraudulent violation' of [the subject-title requirement]" will be invalidated) (quoting Celeste, 464 N.E.2d at 153). 1"See, e.g., Harding, 831 P.2d at 969 (quoting Reeves, 666 P.2d at 1192) (single-subject requirement "'should not be construed narrowly or technically to invalidate proper and needful legislation ....); Miller v. Blair, 444 N.W.2d 487, 489 (Iowa 1989) (rejecting "the view that the existence of two seemingly dissimilar subjects in a bill," each of which could conceivably constitute a separate act, constituted "a per se violation'). .65See, e.g., South Carolina Pub. Serv. Auth. v. Citizens & South Nat'l Bank, 386 S.E.2d 775, 786-87 (S.C. 1989) ("The three objectives of the constitutional provision... are to (1) apprise the members of the General Assembly of the contents of an act by reading the title, (2) prevent legislative log-rolling and (3) inform the people of the State of the matters with which the General Assembly concerns itself.") (citations omitted); Wise v. Bechtel Corp., 766 P.2d 1317, 1319 (Nev. 1988) ("[The main test of the application of the clause to a particular statute is whether the title is of such a character as to mislead the public and members of the legislature as to the subjects embraced by the act ...") (quoting State v. Payne, 295 P. 770, 771 (Nev. 1930)). '"See, e.g., Dunigan, 650 N.E.2d at 1035 (stating that purpose of provision is to prevent "the joinder of incongruous and unrelated matters in one statute ....Hence, a statute may include all matters not inconsistent with, or foreign to, the general subject of the act," but a "reasonable connect[ion]" among "all the provisions of an acf' and the act's subject will be deemed, held the court, "sufficient[ly] complian[t] with the constitutional provision'); id. (noting that state's single subject rule "is not a limitation on the comprehensiveness of a subject, which may be as broad as the legislature chooses, so long as the matters included have a natural and logical connection") (citation omitted); People v. City of Chicago, 111 N.E.2d 626, 632 (11. 1953) ( "To render a provision in the body of a statute void as not embraced in the title, the provision must be one which is incongruous, or which has no proper connection
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The term "subject" is comprehensive in its scope and may be as broad as the legislature chooses, so long as the matters included have a natural or logical connection. An act may include all matters germane to its general subject, including the means necessary or appropriate to the accomplish- ment of the legislative purpose. Nor is the constitutional provision a limitation on the comprehensiveness of the subject; rather, it prohibits the inclusion of "discordant provisions that by no fair intendment can be considered as having any legitimate relation to each other. '16
Apart from a general judicial reluctance to hinder the legislative process, courts often underenforce subject-title requirements by failing to provide sufficient analysis in the application of their own well-worn tests. So often, state courts dispose of single-subject cases through "[fiormalistic explana- with the title.)(citation omitted); Harding,831 P.2d at 969 (quoting State v. Reeves, 666 P.2d 1190 (Kan. 1983) (stating that "'only where an act embraces two or more dissimilar and discordant subjects that cannot reasonably be considered as having any legitimate connection with or relationship to each other' constituted a violation); Metropolitan Sports Facilities Comm'n v. County of Hennepin, 478 N.W.2d 487, 491 (Minn. 1991) ("[What is required is that all matters in the bill be 'germane' to one general subject.") (citation omitted); Miller, 444 N.W.2d at 489 (defining "subjecf' as "the matter or thing forming the groundwork of the act, which may include many parts or things, so long as they are all germane to it and are such that if traced back they will lead the mind to the subject as the generic lead") (quoting Allen v. State, 262 N.W. 675, 677 (Neb. 1935)); Allen, 262 N.W. at 677 (interpreting constitutional one-subject provision to countenance invalidation only of legislation embracing "'two or more dissimilar and discordant subjects that by no fair intendment can be considered as having any legitimate connection with or relation to each other," but holding that it did not follow "that any two subjects in a multifaceted piece of legislation must, in isolation, demonstrably relate to each other for the bill to pass constitutional muster," only that "all subjects relate to a single purpose"); Blanch v. Suburban Hennepin Reg'l Park Dist., 449 N.W.2d 150, 154-55 (Minn. 1989) (quoting Wass v. Anderson, 252 N.W.2d 131, 137 (Minn. 1977) (quoting Johnson v. Harrison, 50 N.W. 923, 924 (Minn. 1891))) ("All that is necessary is that the act should embrace one general subject; and by this is meant, merely, that all matters treated should fall under some one general idea, be so connected with or related to each other, either logically or in popular understanding, as to be parts of, or germane to, one general subject."); Citizens & South Nat'l Bank,386 S.E.2d at 787 (holding that proper test is "'whether the challenged legislation was reasonably and inherently related to"' the purpose of bill (quoting Maner v. Maner, 296 S.E.2d 533, 536 (S.C. 1982)); Parrish v. Lamm, 758 P.2d 1356, 1362-63 (Colo. 1988) (holding that Colorado's provision was not violated "so long as the matters encompassed in the bill are necessarily or properly connected to each other rather than disconnected or incongruous... :'(quotingIn re House Bill No. 1353,738 P.2d 371,374 (Colo. 1987) (stating that "if legislation 'is gennane to the general subject expressed in the title; if it is relevant and appropriate to such subject.., it does not violate [the provision]"') (quoting Tmsley v. Crespin, 324 P.2d 1033, 1034 (Colo. 1958))); Harbor v. Deukmejian, 742 P.2d 1290, 1303 (Cal. 1987) (holding that "a measure complies with the rule if its provisions are either functionally related to one another or are reasonably germane to one another or the objects of the enactment!); In re Breene, 24 P. 3, 4 (Colo. 1890) ("a matter is clearly indicated by the title, when it is clearly germane to the subject mentioned therein"). '67City of Chicago, 111 N.E.26 at 632 (quoting People v. Board of County Comm'rs of Cook County, 189 N.E. 26,27 (11.1934)).
HeinOnline -- 1999 Utah L. Rev. 995 1999 996 UTAH LAW REVIEW [1999: 957 tions" embodied in either "a short statement of a rule accompanied by a string of citations or in a mechanical restatement of the relevant text[,]" both of which techniques "have long [been] discredited as aridly conceptualistic and hopelessly literalistic."' 68 Many courts that uphold diverse legislation as long as the subjects contained in a particular bill are "reasonably germane" to the title, or as long as the court can discern a "rational unity" among them, do so without unpacking or defining those phrases. Indeed, the opinions often convey a sense of the judicial unwillingness to develop a meaningful standard for challenges to legislation. At other times, the courts interpret their constitu- tions' provisions so loosely as to empty them of any meaning, as when courts hold that the subject-title requirement is satisfied if the title hints at the multiple subjects in the body of the bill; or when they tolerate a title so broad that it can be said that all provisions in the body of a bill relate to, are germane to, or have a rational unity with its title. Though it is overstated, there is some truth to an early twentieth-century commentator's observation that no criteria for subject-title requirements "has been developed by judicial action," except in cases of flagrant violation. '69 The judicial attitude toward subject-title challenges may arise in part from the fact that constitutional challenges to state legislation frequently include an allegation of a subject-title violation, making those provisions "the usual last resort of constitutional arguments," as Justice Holmes once characterized Equal Protection Clause challenges. 70 Such familiarity can breed judicial contempt. But we disagree with that same commentator's assessment that title-subject requirements are "so indefinite that they do not present an objective standard by which the validity of legislation may be tested"; and that "no test of violation is laid down by the provision itself.' 17 ' Recent examples from state court opinions demonstrate that such criteria can be 7 developed, and that judicial underenforcement is not inevitable. 1
'6'ROBERT F. NAGEL, CONSTrUTIONAL CULTURES: T1 MENTALiTY AND CONSE- QUENCES oF JUDIciALRBvIw 129 (1989) (footnote omitted). 16W.F. Dodd, The Problem of State Constitutional Construction, 20 COLUm. L. RBv. 635,640 (1920). '7°Buck v. Bell, 274 U.S. 200, 208 (1927). The Nevada Supreme Court anticipated Justice Holmes' comment: "The reports show that seldom, indeed, has the validity of a law come seriously in question without its being claimed that it was in conflict with this clause of 'the constitution [ie., the subject-title requirement]." State ex. rel. Dunn v. Board of Comm'rs of Humboldt County, 29 P. 974,975 (Nev. 1892). "Dodd, supra note 169, at 640. 1 Blinois, for example, has begun to enforce its single-subject provision with vigor. Compare Arangold Corp. v. Zehnder, No. 85366, 1999 WL 482301 (111.July 1, 1999) (upholding act entitled "Tobacco Products Tax Act," which amended twenty different statutory provisions against single-subject challenge, noting that act "embraces but a single subject- ie., implementation of the state budget for the 1996 fiscal year') andArangold Corp., 1999 WL
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California Supreme Court Justice Stanley Mosk recently criticized the practice of folding the one-subject requirement into the title requirement so that multiple issues may be addressed as long as the title gives fair warning to the public and to legislators:
[Petitioners] deny that the provision sets forth an independent requirement that a bill must first be confined to one subject and assert that a statute complies with the Constitution even if it includes numerous unrelated subjects as long as they are all germane of the title of the act. The problem with this claim is that it reads the single subject provision out of the Constitution and substitutes for it a provision that a statute with multiple
subjects complies with 17[the3 provision] so long as those subjects are included within the title.
A more plausible reading, as Justice Mosk suggests, makes the single-subject inquiry a threshold matter, compliance with which is a necessary but not74 sufficient condition for a judicial determination of an act's constitutionality.1
482301, at *12 (Hieple, J., dissenting) (perhaps prematurely lamenting death of Illinois' single- subject clause), with People v. Cervantes, No. 87229 (Ill. Dec. 2, 1999), available at
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Other state judges, similarly unwilling to interpret substantive restrictions on legislative cupidity out of existence,175 have put the legislature on notice, 1 76 at least prospectively, of an intent to invoke the title-subject restrictions. The opinions of these state judges belie the claim that adducing meaningful standards to guide legislatures is beyond the institutional competence of the judiciary, or that such standards are impossible to articulate. The Washington Supreme Court's 1995 decision Washington Federation of State Employees v. Washington" 7 is a useful case in point. In a partial dissent, Justice Talmadge wrote of his concern that the Washington high court's "treatment of [Washington's one-subject requirement] has too often been a talismanic recitation of the 'rational unity' doctrine without a real discussion of what that doctrine means. 178 As Justice Talmadge interpreted the requirement, the provision contains two distinct tests:
First, are the sections of the legislation connected by a rational relation- ship, or, as the case law has expressed it, are the provisions of the legislative enactment connected by a rational unity? Second, is the subject
"'See, e.g., In re Enrolled House Bill 5250, 240 N.W.2d 193, 196 (Mich. 1976) (per curiam) ("This Court is mindful of the worthy purpose and high motivation of the legislature. ...It also is mindful of the basic dictates of the Constitution of this State. Our test cannot be one of policy but of constitutionality. On that test, the Actmust fall.'). '76In State v. Kiedrowski, 391 N.W.2d 777 (Minn. 1986), Justice Yetka of the Minnesota Supreme Court concurred specially in a case in which the court turned aside a title-subject challenge to a bill that was littered with goodies for various legislators to ensure its passage. While concurring in the majority's decision not to strike it down under Minnesota's Constitution, Justice Yetka felt compelled to put the legislature on notice that the title-subject requirement would henceforth be interpreted more strictly: Garbage or Christmas tree bills appear to be a direct, cynical violation of our constitution and however enticingly they may be drafted and whatever promise they may contain, we must have the will and the courage to resist the temptation to affirm the legislative action.... Thus, we should publicly warn the legislature that if it does hereafter enact legislation similar to [that upheld in the case] ...we will not hesitate to strike it down regardless of the consequences.... Kiedrowski, 391 N.W.2d at 785 (Yetka, J., concurring specially); cf.Consumer Party of Penn. v. Commonwealth, 507 A.2d 323, 334 (Pa. 1986) (holding that purpose of constitutional provision proscribing change in meaning of bill on its way through passage "was to put the members of the assembly and others on notice.., so they might vote on it with circumspec- tion") (citation omitted). When the Commonwealth argued that the Pennsylvania Supreme Court should regard as nonjusticiable an allegation that a bill regarding the salary of public officials violated a state constitutional provision forbidding the amendment of a bill so as to alter its original meaning, see PA. CONST. art. Ia § 1, the state high court responded that "where... the question presented is whether or not a violation of a mandatory constitutional provision has occurred, it is not only appropriate to provide ...if warranted a judicial remedy, we are mandated to do no less." Id. 177901 P.2d 1028 (Wash. 1995) (Talmadge, J., concurring in part and dissenting in part). 'Id. at 1039.
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of the legislation accurately expressed in the title? . .. Each of these questions is a distinct question under [the constitutional provision] and must be satisfied.... 179
In answering the first-whether the subjects shared a "rational unity"-Tal- madge concluded that the courts should be guided in its determination by "the two general principles that underlie [the provision]: notice to the Legislature and to the public, and the prevention of logrolling,"180 while according to the legislature "a wide latitude in defining a 'subject." Justice Talmadge then set forth five criteria to test legislation against the one-subject provision. Courts should consider, he wrote, whether: (i) "the process by which the law was enacted open to public involvement"'81 ; (ii) "the public [was] given adequate notice of the contents of the enactment!"'; (iii) "the issues [have] been considered together historically"8 3 ; (iv) "the subject matter of the enactment" 84 ; and (v) whether "the title of the enactment indicate[s] a common unifying theme to the enactment.,' 8 The point is not that Justice Talmadge's schema is the only, or even the best, approach to applying a title-subject requirement 86 ; rather, it is that his effort demonstrates that meaningful criteria can be articulated by courts. The United States Supreme Court has been forced to reckon with constitutional provisions offering far less guidance than that offered by the text of most subject-title requirements. Moreover, in applying our Truth-in-Legislation Amendment, the Court need not reinvent the wheel-it will be able to draw upon the jurisprudence and collective experience of forty-three state courts to do so."8 It is also worth noting that states' comprehensive revision and codifica- tion efforts present special problems to courts trying to enforce these provisions. Because of differences in legislative competencies at the state and federal level, a subject-title amendment should work better at the federal level than at the state because Congress does not legislate on the diversity of topics that states do. Congress, for example, is rarely faced with the task of completely recodifying a particular area of law, like criminal codes or statutes related to descent and distribution.
'I9 d. at 1042 (citations omitted). "1Id. at 1043. 1 1d. (emphasis omitted). IlId. (emphasis omitted). 1 13Id. at 1044 (emphasis omitted). '"Id. (emphasis omitted). "85Id. (emphasis omitted). " For example, Justice Talmadge gives no indication what weight should be given to his factors; are some more important than others? If one of the factors is not satisfied, is that enough to invalidate the bill? Must the bill fail more than one of the tests? Any effective scheme should provide prospective guidance on these questions. '"'See infra Appendix A.
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A related objection might be that the Amendment could be easily circumvented; a bill could simply be given an extremely broad title, one suggesting a connection among otherwise heterogeneous pieces of legislation. First, the possibility that Congress will attempt to evade the restrictions imposed by the Truth-in-Legislation Amendment should not militate against its adoption. Passage of the Amendment by two-thirds of both Houses of Congress, and its ratification by three-fourths of State legislatures or conventions would signal both broad and deep support for the mea- sure-support that the legislative and judicial branches would ignore at their peril. As for the broad titling of acts as a way around the new Amendment, federal courts could again benefit from the experience of the states. For instance, the Illinois Supreme Court has noted on this subject that "[t]he title of an act and the act should correspond, not literally, but substantially, and, while the title may be couched in general terms, to be sufficient it must fairly point out the subject-matter of the act which is to follow it."' 8 An overly general title, "A Bill Related to the Prevention of Crime" or the like, would raise concerns that the legislature is addressing more than one issue in the body of the bill. Finally, we note that responsibility for the enforcement of the Truth-in- Legislation Amendment does not solely lie with the judiciary. Congress and the President, too, have a role in guarding against the enactment of unconsti- tutional laws. Though many state legislatures have often seen fit to skirt the edges of their constitutional subject-title requirements, or to ignore them entirely, it is not inevitable that Congress will do the same, or if it does, that the President will not veto the offending measure on constitutional grounds." 9 In fact, the presumption of constitutionality that acts of Congress and the President enjoy in the courts is grounded in the judicial assumption that independent constitutional review occurs at each of those levels and that the other branches have taken constitutional limitations--even the inconvenient ones-into account. In the experience of the states, that presumption seems to have been unwarranted; should Congress follow suit, a role for the judiciary would seem clear. Where a mandatory constitutional provision imposes an obligation on lawmakers, "the judicial branch cannot ignore a clear violation because of a false sense of deference to the prerogatives of a sister branch of government."' 90
'88Rouse v. Thompson, 81 N.E. 1109, 1111 (l. 1907); see also Harbor v. Deulmae.jian, 742 P.2d 1290, 1303 (Cal. 1987) (warning that attempts to title bills with "subjects of 'excessive generality"' would violate title-subject requirement). ' See supra note 125 and accompanying text. '"Consumer Party ofPenn., 507 A.2d at 334.
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C. Unnecessary, and Duplicativeof Existing CongressionalSafeguards
Another argument against our Amendment would likely be that similar limitations already exist in Congress. The Rules of the House of Representa- tives, for example, contain the provision that "no motion or proposition on a subject different from that under consideration shall be admitted under color of amendment."191 Sadly, the House rule is the very model of a "paper rule," whose existence affects the real legislative business of Congress not a whit. First, and most importantly, no similar requirement that amendments or riders be germane exists in the Senate, which is not bound by the rules of the House.192 In the interest of bicameral accommodation, the House often retreats from its stated rule, allowing nongermane Senate provisions to stand when versions of the bill passed by each house are harmonized in the Conference Committees. In the House itself, rules are routinely suspended to facilitate the hurried passage of legislation at the last possible moment. Even if House members did not have a vested interest in acquiescing to violations of House rules, and filed suit, standing would be difficult to obtain, and courts would likely be extremely reluctant to intervene in the internal governance of the legislative branch. Moreover, nothing would prevent the House from merely amending its rules to omit the germaneness requirement, thus mooting any suit brought by a plaintiff with proper standing. In short, all a concerned citizen or lawmaker can do is say "stop, before I say stop again."
D. Too Formalistic
Many are likely to object to the addition of yet another formal step to the lawmaking process. The Amendment, critics might argue, is an unnecessary technicality that could hinder the flexibility of the lawmaking process. Certainly in some quarters there has always been an hostility to judicial enforcement of structural features of the Constitution on the grounds that observance of the limits that inhere in federalism, separation of powers, even the requirements of Article I, § 7, like bicameralism, slow down the legislative process and contribute to gridlock. Contemporary commentators questioned the wisdom and utility of subject-title requirements within state
191Rules of the House of Representatives XVI, cl. 7. nUntil 1995, when it was eliminated, the Senate's Rule XVI barred the addition of riders to spending bills. See Tim Weiner, Senate Riders Put Some on the Inside Track, N.Y. TIMES, July 7, 1999, at A18. For a description of the old Senate rule, see Stanley Bach, GermanenessRules andBicameral Relations in the U.S. Congress,7 L.GIS. STUD. Q. 341,343 (1982).
HeinOnline -- 1999 Utah L. Rev. 1001 1999 1002 UTAH LAW REVIEW [1999: 957 constitutions""; and the 1968 version of the Model State Constitution explicitly recommended their repeal. 94, The last thing we should do, such critics might argue, is to introduce more obstacles to federal legislative action. Actually, our proposal would not hinder the legitimate business of Congress one iota.195 As accounts of the last-minute passage of the budget bill demonstrate, such omnibus bills are really undertaken for the benefit of individual members, who can force the addition of pork to the bill or effect other rent transfers both because other members wish to do the same thing and because the impending recess of Congress severely limits time for debate. Many members publicly lamented that they had not even read the budget, nor could they have been expected to possess even passing familiarity with the forty-pound behemoth.' 9 The presence of an additional procedural require- ment could deter such last-minute slathering on of appropriations for the benefit of well-connected rent-seekers, or at least provide a party with proper standing a remedy for the most insidious provisions that get through the process. In any event, one person's formalism is another's due process or procedural integrity. Our entire lawmaking process-passage, presentment, signature (or veto) by the President, override, roll-call voting-involves formalism of one sort or another.
E. Will Encourage "JudicialActivism"
The flip side to the objection that the title-subject requirements would not work is the objection that they might work all too well: Opponents of particular bills, having lost on the floor of Congress, could seek a minority veto in the courthouse. A hostile judiciary then might interpret the Amend-
93 1 See Dodd, supra note 169, at 640 (arguing that title-subject requirements are "so indefinite that they do not present an objective standard by which the validity of legislation may be tested," that "no test of violation is laid down by the provision itself[,] and [that] none has been developed by judicial action" except in cases of flagrant violation; noting that failure of legislature to follow procedural provisions such as subject-title requirements "may lead to court tests of the validity of statutes"). See also William J. Keefe, The Functions and Powers ofthe State Legislatures,in STATELEGISLATURES INAMEUCANPOLrrICS 50 (Alexander Heard ed., 1966) (suggesting that judicial use of constitutional procedural devices to invalidate non- complying legislation, such as single-subject requirement, is unnecessarily "harsh"); Frank P. Grad, The State Constitution:Its Function and Form for Our Time, 54 VA. L REv. 928, 930 (1968). '1The Model State Constitution abolished, as part of its suggested "reform" of state constitutions, "virtually all procedural and substantive limits on legislative action.' TARR, supranote 42, at 156. 195 We emphasize the use of the negative pregnant: To the extent that our Amendment prevents Congress from a repeat performance of the recent budget follies, that is, for us, one of its virtues. Likewise, some may argue that anything that hampers Congress' ability to pass laws is, by definition, a good thing. 16See Hager, supranote 5, at Al.
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ment so stringently that Congress would find all its laws subject to attack. While theoretically possible, this is highly unlikely. The doctrine of standing would also prevent a flood of frivolous suits; litigants would have to demonstrate a particular injury to bring suit in federal court ' 9 In addition, if a provision was struck as having violated the Amendment, Congress could repass the offending portion immediately in a separate measure. 98 Judicial invalidation under the Amendment is not, after all, a judgment about the statute's substance. Rather, a nonconforming law is struck down because the process by which it was passed, or the form that it took, was flawed.
VII. CONCLUSION
Over a century and a half ago, in response to logrolling and pork barrel politics that undermined majority rule and diminished accountability, many states imposed restraints, like subject-title requirements, on legislatures. As the recent budget process graphically demonstrates, the pathologies of late nineteenth-century state lawmaking still plague the federal legislative process. We suggest that members of Congress unhappy with that process, facilitating as it does last-minute looting of the Treasury for old-fashioned pork, or the distribution of other rents to select groups, follow the states' examples and propose a federal title-subject clause-the Truth-in-Legislation Amendment. While our proposal might lack the "sex appeal" of a Balanced Budget Amendment, term limits, or the line-item veto, we cheerfully plead guilty to considerations of substance over style. Our proposal will not eliminate all
"~Compare Raines v. Byrd, 521 U.S. 811 (1997) (plaintiffs lacked standing to challenge line-item veto), with Clinton v. New York, 524 U.S. 417 (1998) (standing found). See also Skaggs v. Carle, 110 F.3d 831, 832 (D.C. Cir. 1997) (finding that members of Congress lacked standing to challenge House rule requiring a three-fifths vote to raise federal income taxes; injury deemed "too speculative'). This could be addressed by either specifying who has standing to sue in the Amendment, or by authorizing Congress to prescribe, by legislation, standing in the text of the Amendment itself. .9 More dangerous than judicial overenforcernent of the Amendment would be judicial underenforcement, or nonenforcement of the sort common at the state level. Even amendments to the U.S. Constitution are not immune to judicial abnegation. For all of the academic uncertainty accompanying the belated ratification of the Twenty-seventh Amendment ("No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened."), the judiciary has shown little interest in enforcing it, using a variety of procedural doctrines to defeat challenges to automatic congressional cost-of-living increases. See Boehner v. Anderson, 30 F.3d 156 (D.C. Cir. 1994); Shaffer v. Clinton, 55 F. Supp. 2d 1014 (D. Colo. 1999). Congress seems to regard cost-of- living increases in their salaries as outside the scope of the Amendment, despite the fact that they "vary[] the compensation" without intervening elections, in contravention of the Amendment's plain text. See Associated Press, Congress Likely to OK Pay Raise, N.Y. TIMEs, July 15, 1999; CNN, House Expected to Give Itself Pay Raise, July 14, 1999, available in
HeinOnline -- 1999 Utah L. Rev. 1003 1999 1004 UTAH LAW REVIEW [1999: 957 pork or other pernicious riders, and will certainly not eliminate rent- seeking-parasites are, after all, highly adaptable 199 -but we submit that no system consistent with our constitutional traditions and that preserves its valuable checks and balances of our regime could possibly eliminate all abuses of the legislative process. The best security in the first instance is for an informed electorate to choose honest, civic-regarding representatives. Rewarding these representa- tives with reelection when they refuse to engage in pork-barrel politics or when they eschew the use of non-germane riders to pass substantive legislation, as opposed to criticizing them for not protecting the interests of their constituents, is of equal importance. Because old attitudes die hard, particularly when those attitudes reward federal spending in voters' districts, a virtuous electorate is unlikely to spontaneously generate. Moreover, the present congressional legislative process provides no incentives for pursuing the public interest; the public- regarding legislator is often penalized for taking a principled stand. Therefore, we have proposed the Truth-in-Legislation Amendment as a way to encourage legislative virtue by imposing reasonable procedural and substantive restraints on the process of lawmaking. The imposition of this mild fetter on Congress will, in the long run, result in a greater ability to pass public-regarding legislation unencumbered by profligate spending, obstructionist riders, and the payment of "tolls" to members who might otherwise block important bills. A subject-title requirement (present in the constitutions of over four-fifths of the states) strives to place accountability and responsibility for lawmaking back where the Constitution puts them-with a majority of the members in both houses of Congress, working with the President, at the head of-and not hostage to-our legislative process.2 °
For an illustration of how adaptable, see Jonathan Rauch, Lean Budget, Bloated Government, N.Y. TIMES, Nov. 17, 1999, atA25 (quoting CATO Institute study reporting that "the 70 or so biggest programs that Republican revolutionaries once swore to eliminate--like the Appalachian Regional Commission and the National Writing Project---are not only still there, but had their average spending grow by 3 percent since the Republicans took over Congress"). 2 0°See U.S. CONST. art. I, § 7.
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APPENDIX A
STATE STATE SINGLE TITLE YEAR CONSTITUTION SUBJECT REQUIREMENT ADOPTED PROVISION PROVISION
Alabama '"Each law shall Yes Yes 1865 contain but one Article IV, subject, which Section 45 shall be clearly expressed in its title, except general appro- priation bills, general revenue bills, and bills adopting a code, digest, or revision of stat- utes." Alaska "Every bill Yes Yes 1959 shall be con- Article II, fined to one Section 13 subject unless it is an appropria- tion bill or one codifying, re- vising, or rear- ranging existing laws. Bills for appropriations shall be con- fined to appr- opriations. The subject of each bill shall be expressed in the title."
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Arizona "Every Act Yes Yes 1912 shall embrace Article 4, but one subject Part 2, and matters Section 13 properly con- nected there- with, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be ex- pressed in the title, such act shall be void only as to so much thereof as shall not be em- braced in the title."
Arkansas "The general Yes No 1877 appropriation (for appro- Article V, bill shall em- priations) Section 30 brace nothing but approp- priations for the ordinary ex- pense of the executive, legislative and judicial depart- ments of the State; all other appropriations shall be made by separate bills, each em- bracing but one subject." _
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California "A statute shall Yes 1849 embrace but Article 4, one subject, Section 9 which shall be expressed in its title. If a statute embraces a sub- ject not ex- pressed in its title, only the part not ex- pressed is void...." I I Colorado "No bill, except 1876 general Article V, appropriation Section 21 bills, shall be passed contain- ing more than one subject, which shall be clearly ex- pressed in its title; but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed."
Connecticut N/A No No N/A
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Delaware "No bill or joint 1897 resolution, ex- Article II, cept bills ap- Section 16 propriating money for pub- lic purposes, shall embrace more than one subject, which shall be ex- pressed in its title." Florida 'Everylaw Yes Yes 1868 shall embrace Article 3, but one subject Section 6 and matter properly connected therewith, and the subject shall be briefly ex- pressed in the title." Georgia "No bill shall Yes Yes 1877 pass which re- Article 3, fers to more Section 5, than one sub- Paragraph 3 ject matter or contains matter different from what is ex- pressed in the title thereof." Hawaii 'Each law shall Yes Yes 1959 embrace but Article III, one subject, Section 14 which shall be expressed in its title."
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Idaho "Every act shall Yes Yes 1890 embrace but Article I1I, one subject and Section 16 matters prop- erly connected therewith, which subject shall be ex- pressed in the title; but if any subject shall be embraced in an act which shall not be ex- pressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title." Illinois "Bills, except Yes No 1870 bills for appro- Article 4, priations and Section 8(d) for the codifica- tion, revision or rearrangement of laws, shall be confined to one subject. Appropriations bills shall be limited to the subject of appro- priations.'
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Indiana "An act, except Yes No 1851 an act for the Article 4, codification, Section 19 revision or rear- rangement of laws, shall be confined to one subject and matters prop- erly connected therewith." Iowa 'Every act shall Yes Yes 1857 embrace but Article 3, one subject, Section 29 and matters properly con- nected there- with; which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be ex- pressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title."
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Kansas "No bill shall Yes Yes 1859 contain more Article 2, than one sub- Section 16 ject, except ap- propriation bills and bills for revision or cod- ification of stat- utes. The sub- ject of each bill shall be ex- pressed in its ttle... The provisions of this section shall be liber- ally construed to effectuate the acts of the legis- lature." Kentucky "No law en- Yes Yes 1891 acted by the Section 51 General As- sembly shall relate to more than one sub- ject, and that shall be ex- pressed in the ttle..... I I I"J
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Louisiana "Every bill, 1845 except the gen- Article 3, eral appropria- Section 15(A) tion bill and & (C) bills for the enactment, re- arrangement, codification, or revision of a system of laws, shall be con- fined to one object. Every bill shall con- tain a brief title indicative of its object." "No bill shall be amended in either house to make a change not germane to the bill as intro- duced."
Maine N/A No No N/A
Maryland "[Elvery Law Yes Yes 1867 enacted by the Article III, General As- Section 29 sembly shall embrace but one subject, and that shall be described in its title." Massachusetts N/A No No N/A Michigan "No law shall Yes Yes 1850 embrace more Article 4, than one object, Section 22 which shall be expressed in its itle... I
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Minnesota "No law shall Yes Yes 1857 embrace more Article 4, than one sub- Section 17 ject, which shall be expressed in its title." Mississippi 'TEvery bill in- No Yes 1959 troduced into Article 4, the legislature Section 71 shall have a title, and the title ought to indicate clearly the subject- matter or mat- ters of the pro- posed legisla- tion." Missouri 'No bill shall Yes Yes 1875 contain more Article 3, than one sub- Section 23 ject which shall be clearly ex- pressed in its title, except bills enacted under the third exception in section 37 of this article and general appro- priation bills, which may em- brace the vari- ous subject and accounts for which moneys are appropri- ated."
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Montana "Each bill, ex- 1889 cept general Article V, appropriation Section 11(3) bills and bills for the codifica- tion and general revision of the laws, shall con- tain only one subject, clearly expressed in its title. If any sub- ject is em- braced in any act and is not expressed in the title, only so much of the act not so ex- pressed is void." Nebraska "Nobill shall Yes Yes 1875 contain more Article III, than one sub- Section 14 ject, and the same shall be clearly ex- pressed in the title." Nevada "Bach law en- Yes Yes 1864 acted by the Article 4, Legislature Section 17 shall embrace but one subject, and matter, properly con- nected there- with, which subject shall be briefly ex- pressed in the title... "
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New N/A No No N/A Hampshire
New Jersey 'To avoid im- Yes Yes 1844 proper influ- Article 4, ences which Section 7, may result from Paragraph 4 intermixing in one and the same act such things as have no proper rela- tion to each other, every law shall em- brace but one object, and that shall be ex- pressed in the title. This para- graph shall not invalidate any law adopting or enacting a com- pilation, con- solidation, revi- sion, or rear- rangement of all or parts of the statutory law." New Mexico "The subject of Yes Yes 1911 every bill shall Article 4, be clearly ex- Section 16 pressed in its title, and no bill embracing more than one subject shall be I passed...
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New York "No private or Yes Yes 1846 local bill, Article 3, which may be Section 14 passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title."
North N/A No No N/A Carolina
North Dakota "Nobill may Yes Yes 1889 embrace more Article 4, than one sub- Section 13 ject, which must be ex- pressed in its title; but a law violating this provision is invalid only to the extent that the subject is not expressed." Ohio "No bill shall Yes Yes 1851 contain more Article IL than one sub- Section 15(D) ject, which shall be clearly expressed in its title."
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Oklahoma "Bvery act of Yes Yes 1907 the Legislature Article 5, shall embrace Section 57 but one subject, which shall be clearly ex- pressed in its title, except general appro- priation bills, general revenue bills, and bills adopting a code, digest, or revision of stat- utes .... Pro- vided, That if any subject be embraced in any act contrary to the provi- sions of this section, such act shall be void only as to so much of the law as may not be expressed in the title there- of."
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Oregon "Every Act Yes Yes 1859 shall embrace Article IV, but one subject, Section 20 and matters properly con- nected there- with, which subject shall be expressed in the title. But if any subject shall be embraced in an Act which shall not be ex- pressed in the title, such Act shall be void only as to so much thereof as shall not be expressed in the title. This sec- tion shall not be construed to prevent the in- clusion in an amendatory Act, under a proper title, of matters other- wise germane to the same general subject, although the title or titles of the original Act or Acts may not have been suffi- ciently broad to have permitted such matter to have been so included in such original Act or Acts, or any of them."
HeinOnline -- 1999 Utah L. Rev. 1018 1999 No. 4] UNEASY RIDERS 1019 No.4] UNEASY RIDERS 1019 Pennsylvania "No bill shall 1874 be passed con- Article 3, taining more Section 3 than one sub- ject, which shall be clearly expressed in its title, except a general appro- priation bill or a bill codifying or compiling the law or a part thereof." Rhode Island N/A No No N/A
South "Bvery Act or Yes Yes 1868 Carolina resolution hav- ing the force of Article H1, law shall relate Section 17 to but one sub- ject, and that shall be ex- pressed in the title."
South Dakota "No law shall Yes Yes 1889 embrace more Article II, than one sub- Section 21 ject, which shall be ex- pressed in its title."
Tennessee "No bill shall Yes Yes 1870 become a law Article I, which em- Section 17 braces more than one sub- ject, that sub- ject to be ex- pressed in the title...."
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Texas "(a) No bill, Yes Yes 1845 (except general Article 3, appropriation Section 35 bills, which may embrace the various sub- jects and ac- counts, for and on account of which moneys are appropri- ated) shall con- tain more than one subject. (b) The rules of procedure of each house shall require that the subject of each bill be expressed in its title in a man- ner that give the legislature and the public reasonable no- tice of that sub- ject. The legis- lature is solely responsible for determining compliance with the rule. (c) A law, in- cluding a law enacted before the effective date of this sub- section, may not be held void on the ba- sis of an insuf- ficient title."
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-r T Utah "Except general 1895 appropriation Article VI, bills and bills Section 22 for the codifica- tion and general revision of laws, no bill shall be passed containing more than one subject, which shall be clearly expressed in its title." Vermont N/A No No N/A
Virgini "No law shall Yes Yes 1902 embrace more Article IV, than one object, Section 12 which shall be expressed in its title." Washington "Nobill shall Yes Yes 1889 embrace more Article 2, than one sub- Section 19 ject, and that shall be ex- pressed in the title."
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West Virginia "No act hereaf- 1872 ter passed, shall Article 6, embrace more Section 30 than one object, and that shall be expressed in the title. But if any object shall be embraced in an act which is not so ex- pressed, the act shall be void only as to so much thereof as shall not be so expressed." Wisconsin "No private or Yes Yes 1848 local bill which Article 4, may be passed Section 18 by the legisla- ture shall em- brace more than one subject, and that shall be expressed in the title."
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Wyoming "No bill, except Yes Yes 1890 general appro- Article 3, priation bills Section 24 and bills for codification and general revi- sions of the laws, shall be passed contain- ing more than one subject, which shall be clearly ex- pressed in its title; but if any subject is em- braced in any act which is not expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed:'
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APPENDIX B
States with subject-title requirements, in order of adoption:
1844 New Jersey 1845 Louisiana Texas 1846 New York
1848 Wisconsin 1849 California
1850 Michigan
1851 Indiana (subject only) Ohio
1857 Minnesota Iowa
1859 Kansas Oregon
1864 Nevada
1865 Alabama
1867 Maryland 1868 Florida South Carolina 1870 Illinois (subject only) Tennessee
1872 West Virginia
1874 Pennsylvania
1875 Missouri Nebraska
1876 Colorado
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1877 Georgia Arkansas (appropriations only)
1889 Montana North Dakota South Dakota Washington 1890 Idaho Wyoming 1891 Kentucky
1895 Utah
1897 Delaware 1902 Virginia 1907 Oklahoma
1911 New Mexico
1912 Arizona
1959 Alaska Hawaii Mississippi (title only)
The following States have enacted no subject-title provisions: Connecticut, Maine, Massachusetts, New Hampshire, North Carolina, Rhode Island, and Vermont.
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