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Uneasy Riders*: The Case for a Truthin-Legislation Amendment
BrannonP. 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").
2
3RAUCH, supranote 1, at 11.
Id.
957
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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...
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) <http'//www.comnmoneause.orglabouttfact.htmn>.
SSee George Hager, HousePassesSpending Bill: Massive OmnibusMeasureLardedwith
Pet Projects, WASH. POST, Oct. 21, 1998, at Al; see also Janet Hook, $500 Billion Budget
Ok'd Decisively in House Vote, L.A. TIMES, Oct. 21, 1998, at Al
<http'//www.atimes.com/HOME/NEWS/FRONT/t000095665.html>
(comparing parties responses to spending bill); Associated Press, Spending DealNot a Success,
Oct. 20,1998, availablein <http'//www.nytimes.com/>; Eric Schmitt, The SpoilsoftheBudget
War, N.Y. TIMES, Oct. 18, 1998, § 4, at 2 (detailing various pork projects); Katherine Q.
Seelye, Spending Bill, Ladenwith Pork,Is SignedInto Law, N.Y. TIMEs, Oct. 22,1998, atA24
(detailing specific pork spending); David Rogers & Laurie McGinley, CongressSet to Vote on
Big Spending Bill, WALL ST. J., Oct. 20, 1998, atA2 (descibing last minute changes to bill);
John Godfrey, House Passes Spending Bill Despite Jeers, WASH. TIMES, Oct. 21, 1998, at Al
(reporting legislative reaction to spending bill).
6Seelye, supranote 5 (quoting Sen. Moynlhan).
7
For critiques of the entire budget-making process, which almost guarantees results like
that of the Fiscal Year 1999 budget, see Louis Fisher, War and Spending Prerogatives:Stages
of CongressionalAbdication, _ ST. LouIs U. PUB. L. J. _ (forthcoming 2000) (copy on file
with authors); Louis Fisher, CongressionalAbdication: War and Spending Powers, 43 ST.
LOUIS U. LJ. 931, 985-1005, 1008-11 (1999); Elizabeth Garrett, Harnessing Politics: The
Dynamics of Offset Requirements in the Tax Legislative Process, 65 U. CHL L. REV. 501
(1998); Elizabeth Garrett, Rethinking the Structures ofDecisionmaking in the FederalBudget
Process,35 HARv. J. ON IOis. 387, 425 (1998) [hereinafter Garrett, Structures].
8
Seelye, supra note 5 (quoting Sen. Byrd). But as one commentator noted, however, there
was something a bit disingenuous about Sen. Byrd's vehement denunciation of the bill. Sen.
Byrd himself is legendary for his "cagey use of the budget process to bring billions of dollars
4Common
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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, availablein 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
<http'lcnn.com/NATURE9905/07/liders.enn>. For an argument from Sen. Byrd that
"Concerns About Budgetary 'Pork' Are Overblown," see Sen. Robert C. Byrd, The Control
of the Purseandthe Line Item Veto Act, 35 HARV.J. ON LGIS. 297,313-15 (1998).
9
Godfrey, supra note 5 (quoting Sen. Byrd). See also David Rogers, House Approves
Massive Spending Bill, WAML ST. J., Oct. 21, 1998, atA2 (quoting Sen. Byrd). For Sen. Byrd's
entire statement against the budget process, see Statement by U.S. SenatorRobert C. Byrd on
the Fiscal Year 1999 Omnibus Appropriations Bill, available in 1998 WL 19793282.
Interestingly, Sen. Byrd seemed to object more to the intimate involvement of the executive
branch in the budget process, which he regarded as a violation of separation of powers, than
to the legislative process itself. See id.
"John McCain, A Budget We Should BeAshamed Of,N.Y. TIMEs, Oct. 25,1998, §4 at
17.
"Godfrey, supranote 5.
"Paige, supranote 8.
'Spending DealNot a Success, supranote 5 (quoting Sen. Moynihan).
4
Hager, supra note 5 (quoting Sen. Byrd) ("even members who helped draft it confessed
ignorance about what exactly was in if).
While this article was being readied for publication, Congress passed the Fscal Year
2000 budget. Though the process was neither as rancorous nor as hurried as that which
produced the 1999 budget, see, for example, Alison Mitchell, PartiesCloserThan They Seem
in Budget Fight,N.Y. TIMEs, Nov. 1, 1999, at Al; Tim Weiner, Congressand the President
on Cusp of BudgetAccord, N.Y. TIMES, Nov. 17, 1999, atA20 [hereinafter Weiner, Congress
and the President], the problems with the process discussed here-pork, riders, opacity of
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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
is As The Los Angeles Times aptly put it, "[t]he must-pass bill,
made it in2
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, Congresson 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 BipartisanVote, 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, Congressand 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.
17
Hager, supra note 5.
"3 Sen. 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 peanutfree 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 INTHE 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).
"9 One 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 Clintonv. 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 lineitem 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 LineItem Veto: the Best Response When CongressPasses 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.
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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 constitu26
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 CongressShould 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.
24
We 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] provisions." ' But this is not a constitutional innovation peculiar to the Volunteer
State; as explained below, forty-three states have similar provisions in their
constitutions,2 9 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 nonconforming provision. 30 Moreover, an act expressing an overly broad title ("The Antiterrorism 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.
29
See 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 ProposedEnvironmentalQualityAmendments 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 contemporary 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).
33
For 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
3
The 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, ExpropriationandInstitutionalDesign 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 title
requirement, 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 41
import of the 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 ConstitutionLaw, 42
HARV.L REV.149,160 n.36 (1928) ("The lex Caeciliaet Didiawas a portion of thejus legum
which prohibited the proposal of any law containing two or more matters not germane")
(citations omitted).
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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, hodgepodge 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, ninetyfour state constitutions were adopted during the nineteenth century.
Id.
43
See id. at 118-19 (discussing addition of subject-title requirements during nineteenthcentury). 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).
44
See infraAppendix A & Appendix B.
45
See 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
ONJ.
CoNsT. art. 4, § 7, cl. 4.
47
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 oneHeinOnline -- 1999 Utah L. Rev. 967 1999
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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" spending 4 -- 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 50in 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.
49
See, 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 LineItem 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.
5
""Renf' 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.
53
See supranote 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 statutebook." 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 government types as examples of scandalous governmental waste.56
B. EliminatingLegislation-by-Rider
Furtive raids on the United States Treasury for the benefit of wellorganized 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 UNIoNTRIBUNE, 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).
5
See 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"); Goldsborough, supranote 57. See also Erbe, supra note 57 (describing use of riders to limit research in
use of contraceptives).
59
See 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 appropriations 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 shortcircuit 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 Clintonto 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 Callto 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).
66
The original House Bill 2768 contained enhanced penalties for the new, broadlydefined 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 TerrorLegislation?,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).
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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 institutional bribery.
D. IncreasingAccountability of Congress andIts 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
69
See 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.').
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politics:71 the belief of many voters that "my legislator is okay, but yours is a
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, even73under the most liberal interpretation of "one subject," would be
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 shorttimers, 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 dollars-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.
74
See 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).
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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-inLegislation 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
76
See 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.7 9 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
78
For 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. 359,36062 (1984)
(review essay), and sources cited therein. See also RAucH, supranote 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).
81
See 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
supranote 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
otherpeopleto be unproductive.
8RAuCH,
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).
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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 maintained, 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 distributions 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 minority
95
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 NeutralPrinciplesof ConstitutionalLaw,73 HARV. L.
REV. 1,
(1959).
8 7-9 ALxANDER
M. BICKEL, TZM LEAST DANGEROUS BRANCH: THE SUPREME COURT
3See
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, supranote 85, at 87.
'See HAND, supra note 89, at73.
93
See 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.
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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 legislatures 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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the voters can better react to them," by eliminating the secrecy in which riders
are attached to legislation and subjecting them to judicial challenge. 97
C. Due ProcessofLawmaking
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 Persistenceof
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 notwithstanding-by a simple, national majority vote. See, e.g., Akhil Reed Amar, Consent of the
Governed: ConstitutionalAmendmentOutsideArticleV,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.
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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?, 10 4 he answered that, at a minimum, laws taking life, liberty, or
property must accord with "a legitimate law-making process."10 5 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 Processof Lawmaking, 55 NBa. L. REV. 197 (1976).
99MId.
at 223.
1
0Id. at 224 (emphasis added).
...
See id. at 225.
'02See id. at 225-26.
'03 d. at 226-27.
1
04Id. at 239.
05
1d.
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 "rationalizations." ' Courts are no more likely to be the target of public opprobrium
when they strike down a statute for violating procedural requirements-irregularities that 2are easily corrected-than when they invalidate the
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 acknowledging 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 executive
government to a
7
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-oflawmaking 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").
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interpretations of statutes (the so-called Chevron doctrine"1 9 ) 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 salient
23
to lawmakers and the public than the occasional judicial pronouncement.'
As they later concede, however, these internal rules can be waived or
suspended 24(and usually are, particularly when Congress is facing a
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 restraints12 6 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. artL § 1.
mSee id., art L,§ 9, eL. 1.
'"See id., art. I, § 9, cl. 3.
13°d., art, § 9, cl.
13See id., art I § 9,5.
el. 8.
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Imposts and Excises... be uniform throughout the United States,"' 3 2 and,
even then, Luther Martin complained that the so-called "Uniformity Clause"
did not go far enough to prevent selective taxation.'33 A uniformity requirement 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), reprintedin 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
L
U.S. CONST. art L § 9, c. 6.
1
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, insurmountable.
A Greed is Good
4
The author of a recent article in The New Republic ' 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 selfinterest-with the nation's economic health and public faith in government
9
13
See TARR, supra note 42, at 118-19.
140Cohn, supra note 48, at 19.
141id. at 23.
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at stake," of "ha[ving] it exactly backwards."' 42 In fact, Cohn writes, "porkbarrel spending [is] good for American citizens and American democracy as
it, we should be celebrating it, in all of its
well. Instead of 'criticizing
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
But it's less than one percent of the federal
with that much money ....
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.
143
1d.
'"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 example-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 transferseekers-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,supranote 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-SubjectRequirements 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 decisions-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,rationalor 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 legislatWre'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's
some catch, that Catch-22.").
1'6 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 mandatory, 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."); FranklinCounty 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 accomplishment 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(citation omitted); Harding,831 P.2d at 969 (quoting State v. Reeves, 666 P.2d
with the title.)
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 germaneto the subject mentioned therein").
'67City of Chicago, 111 N.E.26 at 632 (quoting People v. Board of County Comm'rs of
1934)).
Cook County, 189 N.E. 26,27 (11.
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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 constitutions' 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
QUENCES oF JUDIciALRBvIw 129 (1989) (footnote omitted).
MENTALiTY AND CONSE-
16W.F. Dodd, The Problem of State ConstitutionalConstruction, 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 173[the 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 not
74
sufficient condition for a judicial determination of an act's constitutionality.1
482301, at *12 (Hieple, J., dissenting) (perhaps prematurely lamenting death of Illinois' singlesubject clause), with People v. Cervantes, No. 87229 (Ill. Dec. 2, 1999), available at
<http://www.state.iLus/court1l999/87229.han> (invalidating "Safe Neighborhood Law," which
included provisions related to various unrelated criminal statutes and established privatelyoperated juvenile detention facilities, for violating state single-subject provision); People v.
Reedy, 708 N.E.2d 1114 (1l. 1999) (invalidating "truth-in-sentencing" included in "An Act
in relation to governmental matters, amending named Acts," which combined law enforcement
matters, truth-in-sentencing legislation, and provisions related to perfection and satisfaction
of hospital liens); Johnson v. Edgar, 680 N.E.2d 1372, 1374 (11. 1997) (invalidating bill that
began as eight-page act relating to reimbursement of state by prisoners for expense of their
incarceration that resulted in a 200 page bill "so voluminous that not even the broad title of 'An
Act in relation to crime' could... cover all of the subjects contained in the bill"); People v.
Jones, 707 N.E.2d 192, 200 (11. App. 1998) (string down legislation combining criminal
sentencing guidelines and amendment to hospital lien act as violation of single subject rule).
See also Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062, 1097-1101 (Ohio
1999) (striking down state tort reform legislation for, inter alia, violating state constitution's
single-subject rule); Washington v. Cloud, 976 P.2d 649, 655-56 (Wash. 1999) (striking down
provisions of ballot initiative that violated single-subject rule); Associated Builders &
Contractors v. Carlson, 590 N.W.2d 130, 135-37 (Minn. 1999) (invalidating omnibus tax bill
that "appears to include a variety of disparate topics" including the regulation of cooperatives,
and amendments to the Minnesota Unfair Cigarette Sales Act); St. Louis Health CareNetwork
v. Missouri, 968 S.W.2d 145, 149 (Mo. 1998) (invalidating legislation because title failed "to
express clearly a single subject).
"7Harbor v. Duekmejian, 742 P.2d 1290, 1300 (Cal. 1987). Justice Mosk went on to
warn the legislature against attempts to title bills with "matters of 'excessive generality' that
would also violate the rule. Id. at 1303 (quoting Brosnahan v. Brown, 651 P.2d 274,284 (Cal.
1982) (cautioning that single subject rule "forbids joining disparate provisions which appear
germane only to topics of excessive generality such as 'government' or 'public welfare")).
74
See id. at 1300.
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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 Federationof 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. 17 8 As Justice Talmadge interpreted the requirement, the
provision contains two distinct tests:
First, are the sections of the legislation connected by a rational relationship, 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 circumspection") (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"-Talmadge concluded that the courts should be guided in its determination by "the
two general principles that underlie [the provision]: notice to the Legislature
while according to the
and to the public, and the prevention of logrolling,"
180
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"'8 1 ; (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 codification 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.
'I19 d. at 1042 (citations omitted).
" Id. at 1043.
1
1d. (emphasis omitted).
IlId. (emphasis omitted).
113Id. 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 measure-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-inLegislation Amendment does not solely lie with the judiciary. Congress and
the President, too, have a role in guarding against the enactment of unconstitutional 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 supranote 125 and accompanying text.
'"Consumer PartyofPenn., 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 Representatives, 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
191
Rules 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 andBicameralRelations in the U.S. Congress,7 L.GIS. STUD. Q. 341,343
(1982).
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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 requirement 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 Amend193See 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 noncomplying legislation, such as single-subject requirement, is unnecessarily "harsh"); Frank P.
Grad, The State Constitution:Its Function and Formfor 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
"~CompareRaines 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-ofliving 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, CongressLikely to OK Pay Raise,N.Y. TIMEs,
July 15, 1999; CNN, House Expected to Give Itself Pay Raise, July 14, 1999, available in
<http://cnn.com/ALLPOLITICS/stories/l999/07/14/congress.pay/> (visited Nov. 4,1999).
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pork or other pernicious riders, and will certainly not eliminate rentseeking-parasites are, after all, highly adaptable 19 9 -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 representatives 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 publicregarding 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
Alabama
Article IV,
Section 45
Alaska
Article II,
Section 13
STATE
SINGLE
TITLE
YEAR
CONSTITUTION
PROVISION
SUBJECT
PROVISION
REQUIREMENT
ADOPTED
'"Each law shall
contain but one
subject, which
shall be clearly
expressed in its
title, except
general appropriation bills,
general revenue
bills, and bills
adopting a
code, digest, or
revision of statutes."
Yes
Yes
1865
"Every bill
shall be confined to one
subject unless it
is an appropriation bill or one
codifying, revising, or rearranging existing
laws. Bills for
appropriations
shall be confined to appropriations. The
subject of each
bill shall be
expressed in the
title."
Yes
Yes
1959
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Arizona
Article 4,
Part 2,
Section 13
Arkansas
Article V,
Section 30
[1999:957
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"Every Act
shall embrace
but one subject
and matters
properly connected therewith, which
subject shall be
expressed in the
title; but if any
subject shall be
embraced in an
act which shall
not be expressed in the
title, such act
shall be void
only as to so
much thereof as
shall not be embraced in the
title."
Yes
Yes
1912
"The general
appropriation
bill shall embrace nothing
but approppriations for the
ordinary expense of the
executive,
legislative and
judicial departments of the
State; all other
appropriations
shall be made
by separate
bills, each embracing but one
subject."
Yes
(for appropriations)
No
1877
_
HeinOnline -- 1999 Utah L. Rev. 1006 1999
UNEASY RIDERS
No. 4]
California
"A statute shall
embrace but
one subject,
which shall be
expressed in its
title. If a statute
embraces a subject not expressed in its
title, only the
part not expressed is
void...."
Article 4,
Section 9
Yes
Article V,
Section 21
Connecticut
1849
I
I
Colorado
1007
"No bill, except
general
appropriation
bills, shall be
passed containing more than
one subject,
which shall be
clearly expressed 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."
N/A
1876
No
No
HeinOnline -- 1999 Utah L. Rev. 1007 1999
N/A
1008
Delaware
Article II,
Section 16
Florida
Article 3,
Section 6
Georgia
Article 3,
Section 5,
Paragraph 3
Hawaii
Article III,
Section 14
UTAH LAW REVIEW
[1999: 957
"No bill or joint
resolution, except bills appropriating
money for public purposes,
shall embrace
more than one
subject, which
shall be expressed in its
title."
1897
'Everylaw
shall embrace
but one subject
and matter
properly
connected
therewith, and
the subject shall
be briefly expressed in the
title."
Yes
Yes
1868
"No bill shall
pass which refers to more
than one subject matter or
contains matter
different from
what is expressed in the
title thereof."
Yes
Yes
1877
'Each law shall
embrace but
one subject,
which shall be
expressed in its
title."
Yes
Yes
1959
HeinOnline -- 1999 Utah L. Rev. 1008 1999
No. 4]
Idaho
Article I1I,
Section 16
Illinois
Article 4,
Section 8(d)
UNEASY RIDERS
1009
"Every act shall
embrace but
one subject and
matters properly connected
therewith,
which subject
shall be expressed in the
title; but if any
subject shall be
embraced in an
act which shall
not be expressed in the
title, such act
shall be void
only as to so
much thereof as
shall not be
embraced in the
title."
Yes
Yes
1890
"Bills, except
bills for appropriations and
for the codification, revision or
rearrangement
of laws, shall
be confined to
one subject.
Appropriations
bills shall be
limited to the
subject of appro-
Yes
No
1870
priations.'
HeinOnline -- 1999 Utah L. Rev. 1009 1999
[1999: 957
UTAH LAW REVIEW
1010
Indiana
Article 4,
Section 19
Iowa
Article 3,
Section 29
"An act, except
an act for the
codification,
revision or rearrangement of
laws, shall be
confined to one
subject and
matters properly connected
therewith."
Yes
No
1851
'Every act shall
embrace but
one subject,
and matters
properly connected therewith; which
subject shall be
expressed in the
title. But if any
subject shall be
embraced in an
act which shall
not be expressed in the
title, such act
shall be void
only as to so
much thereof as
shall not be
expressed in the
Yes
Yes
1857
title."
HeinOnline -- 1999 Utah L. Rev. 1010 1999
No. 4]
Kansas
Article 2,
Section 16
Kentucky
Section 51
1011
UNEASY RIDERS
"No bill shall
contain more
than one subject, except appropriation bills
and bills for
revision or codification of statutes. The subject of each bill
shall be expressed in its
ttle... The
provisions of
this section
shall be liberally construed
to effectuate the
acts of the legislature."
Yes
Yes
1859
"No law enacted by the
General Assembly shall
relate to more
than one subject, and that
shall be expressed in the
ttle.....
Yes
Yes
1891
I
I
HeinOnline -- 1999 Utah L. Rev. 1011 1999
I"J
1012
UTAH LAW REVIEW
Louisiana
Article 3,
Section 15(A)
& (C)
[1999:957
1845
"Every bill,
except the general appropriation bill and
bills for the
enactment, rearrangement,
codification, or
revision of a
system of laws,
shall be confined to one
object. Every
bill shall contain 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 introduced."
Maine
N/A
No
No
N/A
Maryland
"[Elvery Law
enacted by the
General Assembly shall
embrace but
one subject,
and that shall
be described in
its title."
Yes
Yes
1867
No
N/A
Yes
1850
Article III,
Section 29
Massachusetts
Michigan
Article 4,
Section 22
N/A
"No law shall
embrace more
than one object,
which shall be
expressed in its
I
itle...
No
Yes
HeinOnline -- 1999 Utah L. Rev. 1012 1999
No. 4]
Minnesota
Article 4,
Section 17
Mississippi
Article 4,
Section 71
Missouri
Article 3,
Section 23
1013
UNEASY RIDERS
"No law shall
embrace more
than one subject, which
shall be
expressed in its
title."
Yes
Yes
1857
'TEvery bill introduced into
the legislature
shall have a
title, and the
title ought to
indicate clearly
the subjectmatter or matters of the proposed legislation."
No
Yes
1959
'No bill shall
contain more
than one subject which shall
be clearly expressed in its
title, except
bills enacted
under the third
exception in
section 37 of
this article and
general appropriation bills,
which may embrace the various subject and
accounts for
which moneys
are appropriated."
Yes
Yes
1875
HeinOnline -- 1999 Utah L. Rev. 1013 1999
1014
Montana
Article V,
Section 11(3)
Nebraska
Article III,
Section 14
Nevada
Article 4,
Section 17
[1999: 957
UTAH LAW REVIEW
"Each bill, except general
appropriation
bills and bills
for the codification and general
revision of the
laws, shall contain only one
subject, clearly
expressed in its
title. If any subject is embraced in any
act and is not
expressed in the
title, only so
much of the act
not so expressed is
void."
1889
"Nobill shall
contain more
than one subject, and the
same shall be
clearly expressed in the
title."
Yes
Yes
1875
"Bach law enacted by the
Legislature
shall embrace
but one subject,
and matter,
properly connected therewith, which
subject shall be
briefly expressed in the
title... "
Yes
Yes
1864
HeinOnline -- 1999 Utah L. Rev. 1014 1999
1015
UNEASY RIDERS
No. 4]
New
Hampshire
N/A
No
No
N/A
New Jersey
'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, every
law shall embrace but one
object, and that
shall be expressed in the
title. This paragraph shall not
invalidate any
law adopting or
enacting a compilation, consolidation, revision, or rearrangement of
all or parts of
the statutory
law."
Yes
Yes
1844
"The subject of
every bill shall
be clearly expressed in its
title, and no bill
embracing
more than one
subject shall be
I passed...
Yes
Yes
1911
Article 4,
Section 7,
Paragraph 4
New Mexico
Article 4,
Section 16
HeinOnline -- 1999 Utah L. Rev. 1015 1999
1016
[1999: 957
UTAH LAW REVIEW
New York
Article 3,
Section 14
"No private or
local bill,
which may be
passed by the
legislature,
shall embrace
more than one
subject, and
that shall be
expressed in the
title."
Yes
Yes
1846
No
N/A
North
Carolina
N/A
North Dakota
"Nobill may
embrace more
than one subject, which
must be expressed in its
title; but a law
violating this
provision is
invalid only to
the extent that
the subject is
not expressed."
Yes
Yes
1889
"No bill shall
contain more
than one subject, which
shall be clearly
expressed in its
title."
Yes
Yes
1851
Article 4,
Section 13
Ohio
Article IL
Section 15(D)
No
HeinOnline -- 1999 Utah L. Rev. 1016 1999
No. 4]
Oklahoma
Article 5,
Section 57
1017
UNEASY RIDERS
"Bvery act of
the Legislature
shall embrace
but one subject,
which shall be
clearly expressed in its
title, except
general appropriation bills,
general revenue
bills, and bills
adopting a
code, digest, or
revision of statutes .... Provided, That if
any subject be
embraced in
any act contrary
to the provisions of this
section, such
act shall be
void only as to
so much of the
law as may not
be expressed in
the title thereof."
Yes
Yes
HeinOnline -- 1999 Utah L. Rev. 1017 1999
1907
1018
Oregon
Article IV,
Section 20
UTAHLAWREVIEW
"Every Act
shall embrace
but one subject,
and matters
properly connected therewith, which
subject shall be
expressed in the
title. But if any
subject shall be
embraced in an
Act which shall
not be expressed in the
title, such Act
shall be void
only as to so
much thereof as
shall not be
expressed in the
title. This section shall not be
construed to
prevent the inclusion in an
amendatory
Act, under a
proper title, of
matters otherwise germane
to the same
general subject,
although the
title or titles of
the original Act
or Acts may not
have been sufficiently broad to
have permitted
such matter to
have been so
included in
such original
Act or Acts, or
any of them."
Yes
[1999:957
Yes
HeinOnline -- 1999 Utah L. Rev. 1018 1999
1859
UNEASY RIDERS
No.4]
Pennsylvania
Article 3,
Section 3
1019
1019
UNEASY RIDERS
No. 4]
1874
"No bill shall
be passed containing more
than one subject, which
shall be clearly
expressed in its
title, except a
general appropriation bill or a
bill codifying
or compiling
the law or a
part thereof."
Rhode Island
N/A
No
No
N/A
South
Carolina
"Bvery Act or
resolution having the force of
law shall relate
to but one subject, and that
shall be expressed in the
title."
Yes
Yes
1868
"No law shall
embrace more
than one subject, which
shall be expressed in its
title."
Yes
Yes
1889
"No bill shall
become a law
which embraces more
than one subject, that subject to be expressed in the
title...."
Yes
Yes
1870
Article H1,
Section 17
South Dakota
Article II,
Section 21
Tennessee
Article I,
Section 17
HeinOnline -- 1999 Utah L. Rev. 1019 1999
1020
Texas
Article 3,
Section 35
UTAH LAW REVIEW
"(a) No bill,
(except general
appropriation
bills, which
may embrace
the various subjects and accounts, for and
on account of
which moneys
are appropriated) shall contain 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 manner that give
the legislature
and the public
reasonable notice of that subject. The legislature is solely
responsible for
determining
compliance
with the rule.
(c) A law, including a law
enacted before
the effective
date of this subsection, may
not be held
void on the basis of an insufficient title."
Yes
[1999: 957
Yes
HeinOnline -- 1999 Utah L. Rev. 1020 1999
1845
No! 4]
-r
Utah
Article VI,
Section 22
1021
UNEASY RIDERS
T
1895
"Except general
appropriation
bills and bills
for the codification 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
embrace more
than one object,
which shall be
expressed in its
title."
Yes
Yes
1902
"Nobill shall
embrace more
than one subject, and that
shall be expressed in the
Yes
Yes
1889
Article IV,
Section 12
Washington
Article 2,
Section 19
title."
HeinOnline -- 1999 Utah L. Rev. 1021 1999
1022
West Virginia
Article 6,
Section 30
Wisconsin
Article 4,
Section 18
UTAH LAW REVIEW
[1999:'957
"No act hereafter passed, shall
embrace more
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 expressed, the act
shall be void
only as to so
much thereof as
shall not be so
expressed."
"No private or
local bill which
may be passed
by the legislature shall embrace more than
one subject,
and that shall
be expressed in
the title."
1872
Yes
Yes
HeinOnline -- 1999 Utah L. Rev. 1022 1999
1848
No. 4]
Wyoming
Article 3,
Section 24
UNEASY RIDERS
"No bill, except
general appropriation bills
and bills for
codification and
general revisions of the
laws, shall be
passed containing more than
one subject,
which shall be
clearly expressed in its
title; but if any
subject is embraced 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
Yes
1023
Yes
expressed:'
HeinOnline -- 1999 Utah L. Rev. 1023 1999
1890
1024
UTAH JAW REVIEW
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
HeinOnline -- 1999 Utah L. Rev. 1024 1999
[1999:957
No. 4]
UNEASY RIDERS
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)
1025
The following States have enacted no subject-title provisions: Connecticut, Maine,
Massachusetts, New Hampshire, North Carolina, Rhode Island, and Vermont.
HeinOnline -- 1999 Utah L. Rev. 1025 1999
HeinOnline -- 1999 Utah L. Rev. 1026 1999