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Citation: 1999 Utah L. Rev. 957 1999 Content downloaded/printed from HeinOnline (http://heinonline.org) Mon Apr 8 11:46:06 2013 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0042-1448
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Citation: 1999 Utah L. Rev. 957 1999

Content downloaded/printed from HeinOnline (http://heinonline.org)Mon Apr 8 11:46:06 2013

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from uncorrected OCR text.

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Uneasy Riders*: The Case for a Truth-in-Legislation Amendment

Brannon P. Denning" & Brooks R. Smith'

I. INTRODUCTION

The electorate's frustration with congressional "gridlock"-the perceivedparalysis of governmental operations occasioned by divided government andpartisan bickering-has become a cliche in the literature on Americanpolitics.' However, as Jonathan Rauch noted, the description of "gridlock'during the late 1980s and early 1990s was inaccurate, since "the number andpage count of laws enacted. . remained well in line with the post-1970norm."' 2 This fact led Rauch to conclude that the real issue was not "thequantity of activity, but how effectively a given amount of activity solvesproblems on net."3 The real root of public dissatisfaction, then, seems to bea distinct, but related feeling that what does get through Congress is eithermerely legislation designed to service special interest groups that ensurelawmakers are reelected, or unnecessary spending measures for members'home districts.

With apologies to The Charlie Daniels Band, Peter Fonda, and Dennis Hopper. See THECHARW DANIES BAND, UNEASY RIDER, on DECADE OF HiTs (Sony Music 1987) (describinghirsute motorist's altercation with "five big dudes... [,] one ol' drunk chick, and some fellawith 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 theSouth, 1992.

-Associate, Boult, Cummings, Connors & Berry, PLC, Nashville, Tennessee. J.D., TheUniversity of Tennessee, 1996; BA, The University of the South, 1993.

The authors thank the following people for comments on and criticisms of earlierversions 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 forCongress... is the noisy and notorious traffic jam at the intersection of policy proposal andpolicy action-the dreaded 'gridlock"); JOHN R. HIBBING & EaZABmrH THf=ss-MORSE,CONGRESS AS PUBuC ENEMY 2-3 (1995) (summarizing recentlitarature on voter dissatisfactionwith Congress); JONATHAN RAUCH, DEMOSCLEROSIS: THE SILENT KniL OF AMERiCANGOVERNMENT 9-10 (1994) (describing how "gridlock" became political elich6 as "[sleven inten Americans [believed] that the government creates more problems than it solves").

2RAUCH, supra note 1, at 11.3Id.

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When the legislative juggernaut does get rolling, often under the specterof imminent government shutdown, impending adjournment, or both, the endproduct is often an omnibus mess, combining necessary legislation withgoodies for legislators' home districts and controversial legislation passedwithout an opportunity for full debate. This state of affairs is the opposite ofgridlock; and the legislative work product of an "active" Congress is arguablyworse than that of a gridlocked one.

For a recent example of what is "badly wrong" with our legislativeprocess, one need look no further than the omnibus budget bill that passed theHouse and Senate toward the end of October 1998 and signed into law by thePresident. By all accounts, the bill is a Common Cause4 member's worstnightmare. The 3,825 page, sixteen inch tall, forty pound omnibus billactually combined eight spending bills out of thirteen that Congress wasunable to pass prior to the start of the October 1 fiscal year.5 Members of bothparties, including those who voted for the bill, complained to reporters aboutthe "ominously careless"6 process that spawned the bill.7 The "Dean of theSenate," West Virginia Senator Robert Byrd, called the end product "anelephantine monstrosity"' and compared it to "a Frankenstein creature...

4Common Cause "is a nonprofit, nonpartisan citizen's lobbying organization promotingopen, honest and accountable government... Common Cause represents the unified voice ofthe people against corruption in government and big money special interests." About CommonCause (visited Dec. 23, 1999) <http'//www.comnmoneause.orglabouttfact.htmn>.

SSee George Hager, House Passes Spending Bill: Massive Omnibus Measure Larded withPet Projects, WASH. POST, Oct. 21, 1998, at Al; see also Janet Hook, $500 Billion BudgetOk'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 Deal Not a Success,Oct. 20,1998, available in <http'//www.nytimes.com/>; Eric Schmitt, The Spoils oftheBudgetWar, N.Y. TIMES, Oct. 18, 1998, § 4, at 2 (detailing various pork projects); Katherine Q.Seelye, Spending Bill, Laden with Pork, Is Signed Into Law, N.Y. TIMEs, Oct. 22,1998, atA24(detailing specific pork spending); David Rogers & Laurie McGinley, Congress Set to Vote onBig 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, supra note 5 (quoting Sen. Moynlhan).7For 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: Stagesof Congressional Abdication, _ ST. LouIs U. PUB. L. J. _ (forthcoming 2000) (copy on filewith authors); Louis Fisher, Congressional Abdication: War and Spending Powers, 43 ST.LOUIS U. LJ. 931, 985-1005, 1008-11 (1999); Elizabeth Garrett, Harnessing Politics: TheDynamics of Offset Requirements in the Tax Legislative Process, 65 U. CHL L. REV. 501(1998); Elizabeth Garrett, Rethinking the Structures of Decisionmaking in the Federal BudgetProcess, 35 HARv. J. ON IOis. 387, 425 (1998) [hereinafter Garrett, Structures].

8Seelye, supra note 5 (quoting Sen. Byrd). But as one commentator noted, however, therewas 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

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patched together from old legislative body parts that don't quite fit."9 In anop-ed published in The New York Times, Arizona Senator John McCaincomplained that "negotiations were conducted behind closed doors-out ofsight of the people as well as most members of Congress." 10

The Washington Times reported that changes to the bill were made rightdown to the time of the final vote, that a final draft of the behemoth was notavailable until the middle of the day the House was to vote, and that the finalversion "include[d] handwritten notes in the margin, e-mail printouts insertedinto the bill, and misnumbered or unnumbered pages."" The result, asmembers acknowledged, was that the bill passed without anyone knowing forsure 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 DanielPatrick 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 fromall the behind-the-scenes horse trading" Sean Paige, Rolling Out the Pork Barrel, 15 INSIGHT32, available in 1999 WL 8673516. Evidence suggests this analysis is correct. Byrd, who lastyear excoriated both the process and its result, see supra notes 8-9 and accompanying text, hasrecently had a change of heart, seemingly occasioned by garnering part of a $20 millionappropriation for prisons to house criminal aliens for his home state of West Virginia. "Toomuch of anything," Sen. Byrd said, quoting Mae West, "is simply wonderful" Tim Weiner,Unrelated Spending Divides Conferees on Emergency Bills, N.Y. TIMES, Apr. 18,1999, at Al9(quoting Sen. Byrd); see also Clinton Urged to Veto Rider-Laden Aid 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 Controlof the Purse and the Line Item Veto Act, 35 HARV.J. ON LGIS. 297,313-15 (1998).

9Godfrey, supra note 5 (quoting Sen. Byrd). See also David Rogers, House ApprovesMassive Spending Bill, WAML ST. J., Oct. 21, 1998, atA2 (quoting Sen. Byrd). For Sen. Byrd'sentire statement against the budget process, see Statement by U.S. Senator Robert C. Byrd onthe Fiscal Year 1999 Omnibus Appropriations Bill, available in 1998 WL 19793282.Interestingly, Sen. Byrd seemed to object more to the intimate involvement of the executivebranch in the budget process, which he regarded as a violation of separation of powers, thanto the legislative process itself. See id.

"John McCain, A Budget We Should BeAshamed Of, N.Y. TIMEs, Oct. 25,1998, §4 at17.

"Godfrey, supra note 5."Paige, supra note 8.'Spending Deal Not a Success, supra note 5 (quoting Sen. Moynihan).4Hager, 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 whichproduced the 1999 budget, see, for example, Alison Mitchell, Parties Closer Than They Seemin Budget Fight, N.Y. TIMEs, Nov. 1, 1999, at Al; Tim Weiner, Congress and the Presidenton Cusp of Budget Accord, N.Y. TIMES, Nov. 17, 1999, atA20 [hereinafter Weiner, Congressand 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 carenot so much what others managed to insert, as long as their own pet causesmade it in2is As The Los Angeles Times aptly put it, "[t]he must-pass bill,needed to keep the government running for the next year, became a magnetfor all manner of legislative desiderata-from major policy changes toparochial local projects."" The Washington Post called it "a vehicle for billsthat members could not finish any other way, including measures toimplement the international chemical weapons treaty and reorganize thenation's foreign policy agencies."17 Thus, most inembers held their noses andvoted 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 billcontained, and also did so without meaningful debate on the merits of thevarious proposals."

process-were all present For coverage of the 2000 budget, see Reverse Rider, WASH. POST,Nov. 16, 1999, at A30 (criticizing riders aimed at limiting operation of environmental laws);Rider Time, WAH. PosT, Aug. 5, 1999, at A22 (same); Lizette Alvarez, Congress on RecordCourse for Pork, N.Y. TIMEs, Nov. 19, 1999, at Al (describing members' efforts to securemoney for constituents); Juliet Eilperin & Dan Morgan, Capitol Hill 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); TnWeiner, Final Budget Bill is Passed by House in Bipartisan Vote, N.Y. TMES, Nov. 19,1999,at Al. In a hilarious Freudian slip, illustrative of the problem that our Amendment attempts toaddress, House Majority Leader Dick Armey declared at one point that the "store was stillopen" for wheeling and dealing on the budget See Weiner, Congress and the President, supra.Armey meant to say that the "floor" was still open, but the former is certainly more accurate.

'5See supra text accompanying note 12."6Hook, supra note 5.17Hager, supra note 5."3Sen. McCain compiled a fifty-two page list of projects he felt were wasteful, reprinting

some in his New York Times op-ed. See McCain, supra note 10. Other widely reported projectsincluded an extension for duck season in Mississippi, a ban on regulations mandating peanut-free zones on airlines, a $250,000 grant to an llinois company for caffeinated gum research,and a $750,000 grant for grasshopper research in Alaska. See Hager, supra note 5; Seelye,supra note 5; Godfrey, supra note 5. The appropriation most likely to arouse the interest ofconspiracy theorists will no doubt be the $5 million dollars appropriated for an "InternationalLaw Enforcement Academy" to be located in Roswell, New Mexico. See McCain, supra note10. Our favorite was the loan of money to Russia so that it could purchase poultry fromMississippi. 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" areused to control debate and limit amendments, and generally to "set[] the terms for a measure'sfloor consideration." BARBARA SINCLAIR, UNORTHODOX LAWMAKING: NBw LEcIsLATIVBPROCESSES IN THE U.S. CONGRESS 21 (1997). Special rules "may restrict amendments, waivepoints of order (against what would otherwise be violations of House rules in the legislationor 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 doesnot always prevail-is the Unanimous Consent Agreement (UCA). "A UCA may specify timefor 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) memberscould not agree on them otherwise; and (ii) by attaching them to theappropriations bill, members in opposition would be unable to kill theoffending measures without scuttling the entire bill and risking anothergovernment shutdown.' 9 The combination of a lack of political will to maketough decisions and a lack of procedural discipline to restrain the increasinglyfamiliar year-end appropriations orgy seems as much at the heart ofcongressional (and public) dissatisfaction with the legislative process and itsresults as any general perception of governmental gridlock.

Various proposals, including campaign finance reform, term limits, thebalanced-budget amendment, and the line-item veto,20 have been floated toencourage (or coerce) members of Congress to put aside self-interest andpetty partisan bickering to "do the people's business." These schemes wereeventually either rejected by Congress as unwise (the balanced budget andterm limits amendments), or judged unconstitutional by the courts (line-item

nongenmane amendments or nongermane amendments that are not explicitly listed [in theUCA]; 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: AREEMENCE, RESEARCH, AND 1EGISLATrvE GUIDE 269-74,284-96,573-93 (1989) (discussingspecial rules and UCAs); SARAH A. BINDER & STEvEN S. SMnrH, PoLITICS OR PRINCIPLE?:FMUSTERING IN TH U.S. SENATE 76-78 (1997).

"9One op-ed writer complained that "riders are a form of legal blackmail, where theproponents gamble that members of Congress and the president will let these special interestamendments slide in order to avoid another budgetary battle that could shut down thegovernment...." John Rosapepe, Use of 'Riders' Hides Issues from Debate, Public, IDAHOSTATESMAN, Sept. 9, 1998, at 6B, available in 1998 WL 16489298. Neologists might preferto term these tactics "legismail."

"0 While the legislative line item-veto was declared unconstitutional by the SupremeCourt, see Clinton v. City ofNew York, 524 U.S. 417,448 (1998), an argumentmade its roundsin conservative circles during the Reagan-Bush years that the President had an inherent line-item veto power. See LouIs FISHER, CONSTITUTONAL CoNFuCrS BETwEEN CONGRESS ANDTHE PRESIDENT 135-36 (Univ. Press of Kansas, 4th ed. 1997); L. Gordon Crovitz, The Line-Item Veto: the Best Response When Congress Passes One Spending "Bill" a Year, 18 PEPP.L REV. 43, 55 (1990) (presenting argument for inherent line-item veto power); J. GregorySidak & Thomas A. Smith, Why Did President Bush Repudiate the "Inherent" Line-ItemVeto?, 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 oflegislation'). The authors thank Professor Mark Tushnet for directing our attention to thesearticles.

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 onesubject. See President George Bush, Remarks at Dedication Ceremony of the Social SciencesComplex at Princeton University in Princeton, New Jersey, (May 10, 1991), in 1 PUB. PAPERSOF THE PRESIDENTS: GEORGE BUSH, 1991, at 449 (1992) (remarking that forty-three stategovernors have a line-item veto and noting that "[s]ome believe that I already have that powerunder the Constitution"). On advice of the Office of Legal Counsel, President Bush neverattempted 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 thefeeling persists that something is badly wrong with our legislative process, thesearch for a silver bullet continues.

In this Article, we propose a solution that should appeal to members ofa Congress afflicted with what Dean Kathleen Sullivan calls "constitutionalamendmentitis"': an amendment to the Constitution requiring that Acts ofCongress deal with a single subject, and express that subject in the Act'stitle.23 Such an amendment-which we call "The Truth-in-LegislationAmendment"* - - will help ensure that Congress "enact[s] laws that reflect thebest interests of all Americans, rather than the special interests of a few."25 Ifratified, it would read:

Congress shall pass no bill, and no bill shall become law, which embracesmore than one subject, that subject being clearly expressed in the title.

Like previous would-be fixes, it is calculated to correct deficiencies in thelegislative process. Unlike the other proposed alterations to the Constitution,however, our proposal is intended to function as more than mere constitu-tional graffiti.26

We borrow the wording of our proposal from the Constitution of theState of Tennessee: "No bill shall become a law which embraces more thanone subject, that subject to be expressed in the title."' In the colorful wordsof 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-itemveto); United States Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (striking downstate-imposed term limits on members of Congress).

'See Kathleen M. Sullivan, Constitutional Constancy: Why Congress Should Cure Itselfof Amendment Fever, 17 CARDozo L. Rv. 691, 691 (1996); Kathleen M. Sullivan,Constitutional Amendmentitis, AM. PROSPECT, Fall 1995, at 20.

'For similar suggestions, see Nancy J. Townsend, Comment, Single Subject Restrictionsas anAlternative to 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 orCongressional Responsibility?, 74 IOWA L. REV. 227, 240-48 (1988). We differ from bothauthors in that we are committed to the use of the Article V amending process, rather than thelegislative process, to secure lasting change.

24We use the word 'Truth" here not as indicating a desire to see particular endsguaranteed, 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 inYear-End Bill, WALL ST. J., Oct. 19, 1998, at A4 (describing various special interestamendments).

2"Brannon P. Denning, Editorial, This Amendment Would Be Constitutional Graffiti, LATIMES, Feb. 5, 1997, at B9 (criticizing proposed balanced budget amendment for creating rightwithout remedy).

27TENN. CONST. art IL § 17.

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Constitution in 1870, was intended "to cut up by the roots, not only thepernicious system of legislation, which embraced in one act incongruous andindependent subjects, but also the evil practice of giving titles to acts whichconveyed no real information as to the objects embraced in [their] provi-sions."' But this is not a constitutional innovation peculiar to the VolunteerState; as explained below, forty-three states have similar provisions in theirconstitutions,29 most of which were inserted in the second half of thenineteenth-century.

Application by courts of the Amendment to legislation would be quitestraightforward. The plain language of our proposal would require that eachcongressional bill contain only one subject and a title that expresses thatsubject clearly. Thus, an act listing more than one subject in the title-forexample, one that aims to combat health care fraud and ensure portableinsurance for persons changing jobs-would constitute a per se violation.Likewise, an act that specifies one subject in the title, but whose body clearlyembraces more than one topic-such as an appropriations bill with some sortof non-germane rider attached-would also be forbidden. Here, though thetitle expresses only one subject, a check of the title with the body of the actwould reveal the presence of multiple subjects. Once this is established, thecourt could either invalidate the entire act, or possibly elide the nonconform-ing provision. 03 Moreover, an act expressing an overly broad title ("The Anti-terrorism Act of 2000') should warrant a hard look from the judiciary, lestCongress be allowed to subvert the Amendment's intent by connectingdisparate provisions with gossamer assertions of germaneness to a nonspecificsubject.

31

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 uponlegislative power." Id. at 517.

29See infra Appendix A & Appendix B.3°It is possible that but for the inclusion of a particular rider, the bill would not have

passed; in such cases, then, the invalidation of the entire law is probably preferable to elision.3 Recent commentators offering criteria by which proposals to amend the Constitutioncan be measured have stressed the importance of clear language that can be easily understoodand applied. See CTINs FOR THE CONSTITUTION, "GREAT AND ExTRAoRDNARYOccASIONS": DEVELOPING STANDARDS FOR CONSTITTONAL CHANGE 15-16 (1997)(discussing importance of making amendments embody enforceable, as opposed toaspirational, standards, and anticipating unintended consequences of amendment) [hereinafterDEvELOPING STANDARDS FOR CONSTITUTIONAL CHANGE]; J.B. Ruhl, The Metrics ofConstitutional Amendments: And Why Proposed Environmental Quality Amendments Don't.Measure Up, 74 NOTRB DAMl L. REv. 245, 275-79 (1999) (same). Those are importantconsiderations, and the adoption of our Amendment would no doubt occasion some closecases. For example, how general can a title be before a court could conclude that it violates thesubject-title requirement? Here we make no attempt to answer such questions, but ratherrespond in part that our Amendment is no more ambiguous than others in the Constitution andcounter 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 ourproposal. Part II features a short history of these "subject-tite" clauses, whichbecame popular as constitutions were rewritten (or written, in the case ofnewly admitted states) during the nineteenth-century. In Part III, we explainhow a subject-title requirement in the Federal Constitution would ameliorateproblems with the federal lawmaking process. In Parts IV and V, we describehow our Truth-in-Legislation Amendment works in harmony with contempo-rary constitutional and legislative theory; and we argue that it would beneither out of place in the Federal Constitution nor alien to the Framers' viewsof lawmaking. Finally, in Part VI, we anticipate and answer possibleobjections to our proposal.

We do not propose this constitutional amendment lightly or fippantly.32

Constitutional amendments are serious business. The Framers intendedArticle V to be used only to remedy imperfections that surfaced in the courseof 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) (discussinguncertainty 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- "Everylaw, or resolution having the force of law, shall relate to but one subject, and that shall beexpressed in the title." CONG. GLOBE, 38th Cong., 1st Sess. 1441, 1447 (1864) [hereinafterPowell]. His proposal was defeated 37-6. According to Professor John R. Vile, an expert onthe amending process and its history, at least four other proposals were made at various timesto add a subject-title amendment to the Constitution; none got anywhere. E-mail from John R.Vile to Brannon P. Denning (Dec. 10, 1998) (copy on file with authors).

33For the Framers' views on the amendment process, see Brannon P. Denning, Means toAmend: Theories of Constitutional Change, 65 TENN. L. RBv. 155, 160-78 (1997). Concernwith congressional "amendmentitis," see supra note 22 and accompanying text, has producedsome standards by which proposed amendments to the Constitution should be measured. Forexample, a group of distinguished legal scholars and practitioners organized the "Citizens forthe Constitution" (CFC) and produced standards for constitutional amendment SeeDEVELOPING STANDARDS FOR CONSTITUTIONAL CHANGE, supra note 31, at 6. According toCFC, 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) beutilized only when legal or practical obstacles block alternative means for realizing theobjective; (iv) not be adopted when ratification would damage "the cohesiveness ofconstitutional doctrine"; (v) be enforceable, as opposed to aspirational; (vi) anticipateconsequences of adoption, including the interaction with other parts of the Constitution as awhole; (vii) be enacted under procedures designed to ensure maximum debate; and (viii beratified 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, supra note 31, at 263-80. Level One filters measure whetherthe proposed amendment is acceptable to society and institutionally necessary by askingwhether the measure enjoys broad social approval and whether the amendment is necessaryfor the objective's successful implementation. See id. at 264-74. Level Two filters furtherascertain 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 isdefective enough to warrant resort to the Article V amendment process.Moreover, for reasons expressed in Part VI, we argue that merely establishingsubject-title requirements legislatively would be ineffectual."

I1. A SHORT HISTORY OF SUBJECT-TiLmEREQUIREMENTS IN STATE CONSTITUTIONS

Our proposal actually combines two limitations: (i) that each bill containonly one subject35; and (ii) that the subject be clearly expressed in the bill'stitle. Each has independent historical roots, but both are now includedconcurrently in most state constitutions. 6

relevant questions are: (i) can the amendment be articulated in terms that are legallyenforceable; (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 passesmuster. For a description of its aims, its harmony with contemporary constitutional theory, andour response to anticipated objections, see infra Parts I, IV, V, and VL

ZSee infra Part VL3The 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 "theterms are synonymous since the constitutional provisions containing the terms were enactedfor 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 thisconstitutional provision, have come to be regarded as synonymous" Board of Health of NewJersey v. Inhabitants of Town of Phillipsburg, 91 A. 901, 903 (NJ. Ch. 1914). But see NorthRidge 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 manyobjects") (citations omitted).

We choose the term "subject," instead of "object," but not because of the reasonsexpressed by the Florida Supreme Court. Ascertaining the "subjecf' of a bill seems to us amore objective inquiry, one that can be discerned from the text of the statute itself. Requiringa court to divine the "objece' of the legislature in passing a particular law seems to doom tofailure provisions restricting legislation to one object, because it is highly unlikely that any twolegislators 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 INTERPRHTATION169-74 (2000); WLUAM N. ESKRIDGE, JR. & PHILP P. FRICKBY, CASES AND MATERIALS ONLEGISLATION: STATUTES AND THE CREATION oFPUBIUC PoucY 250-53 (2d ed. 1994); ABNERJ. MVA & ERIc J. LANE, AN INTRODUCTION TO STATUTORY INTERPRETATION AND THE1E.ISLATVB PROCESS 163-64 (1997); WILLIAM D. POPKIN, MATERIALS ON LEGISLATION:POLIICALLANGUAGEANDTHEPOLITICALPROCESS § 17.02, at 803-13 (2d ed. 1997); ClaytonP. Gillette, Expropriation and Institutional Design in State and Local Government, 80 VA. LREV. 625, 657-64 (1994). The classic treatment is Millard H. Ruud, "No Law Shall EmbraceMore Than One Subject," 42 MINN. L. Rnv. 389 (1958). Illinois removed its title requirementin 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 titlehas its origins in Georgia's experience with the notorious "Yazoo LandFraud." In 1783, the State of Georgia included most of Alabama andMississippi because, unlike most other original States, Georgia did not cedeits westward land to the Federal Government after the Revolutionary War. In1795, with the State strapped for cash, the Legislature (all but one of whosemembers personally profited as a result) sold approximately thirty millionacres of land to four land companies for one and one-half cents per acre.'

Popular outrage' at the widespread bribery that accompanied thefraudulent transfer of state lands was reflected in the Constitution of 1798,which included the provision providing that "[n]o law or ordinance shall passcontaining any matter different from what is expressed in the title thereof."39

This requirement was intended to prevent further deceptive and misleadinglegislation and was soon adopted by other states.

In 1844, New Jersey inserted into its constitution the first single-subjectrequirement. 1 Over the next sixty years, during a remarkable period of

hand, has a title requirement, but no single-subject requirement. See infra Appendix A.37See 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 waspublicly burned, and all evidence of its passage was expunged from therecord.

1 CHARLES WARREN,TiHESUPREMBCOURTINUNrrED STATES HISTORY392-93 (1926 ed.). Thefour land companies quickly resold the land to innocent third-party purchasers, and those saleswere upheld by the United States Supreme Court in Fletcher v. Peck, 10 U.S. (6 Cranch) 87,141 (1810).39ALBERT 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 theunlocated territory of this State, for the payment of the late State troops, and forother purposes therein mentioned; declaring the right of this State to theunappropriated territory thereof, for the protection of the frontiers, and for otherpurposes.

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 legislatureby incorporating in bills provisions not reasonably disclosed by its title, and which might beoverlooked, and unintentionally approved in enacting the bill" and "to fairly apprise the publicof the import of the legislature so they may be heard").41But see Ruud, supra note 36, at 389. According to Professor Ruud, the Romans, as farback as 98 B.C., codified the notion that that laws should not contain unrelated provisions. Seealso Edward S. Corwin, The "Higher Law" Background of American Constitution Law, 42HARV. L REV. 149,160 n.36 (1928) ("The lex Caecilia et Didia was a portion of thejus legumwhich 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 ofsubstantive constitutional restrictions on legislatures,' other states followedsuit,;" with some variations in the wording.45 The object of these provisionsis summarized in the New Jersey provision itself: "To avoid improperinfluences which may result from intermixing in one and the same act suchthings as have no proper relation to each other."'46 Other states cited omnibusbills that roll wide varieties of legislation into one act, logrolling, hodge-podge legislation, bills with low visibility and deceptive wording that skulkthrough the legislative process, and eleventh hour consideration of legislationas examples of the mischief that the single subject provisions were intendedto halt.47

'See generally G. ALAN TARR, UNDERSTANDING STATE CoNsTrruTIONS 94(1998).From 1800 to 1860, thirty-seven new state constitutions were adopted. Fifteen ofthe 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 halfthe existing states held constitutional conventions .... From 1861 to 1900, twentystates revised their constitutions, some several times, adopting forty-five newconstitutions in all. . .. Of those states that joined the Union from 1800 to 1850,only two had not revised their constitutions by century's end; altogether, ninety-four state constitutions were adopted during the nineteenth century.

Id. 43See id. at 118-19 (discussing addition of subject-title requirements during nineteenth-century). Incidentally, the Confederate Constitution of 1861 included a subject-titlerequirement as well. See C.SA. CONST. art. L § 9, ci. 20, reprinted in MARSHALLL. DERosA,TIBCONFMBRATECONSTITUTIONOF1861:ANINQURYINTOAMRICANCONSTrrUTIONALISMapp. (1991).

44See infra Appendix A & Appendix B.45See id. Interestingly, five of the original thirteen states-Connecticut, Massachusetts,

New Hampshire, North Carolina and Rhode Island-have neither a single subject provision,nor a title requirement in their constitutions.

4ONJ. CoNsT. art. 4, § 7, cl. 4.47For a comprehensive statement of the purposes of subject-title clauses, see PortenSullivan Corp. v. State, 568 A.2d 1111, 1115-18 (Md. 1998) (citations omitted):

the object of this constitutional provision is obvious and highly commendable. Apractice had crept into our system of legislation, of engrafting, upon subjects ofgreat public benefit and importance, for local or selfish purposes, foreign and oftenpernicious matters, and rather than endanger the main subject, or for the purposeof securing new strength for it, members were often induced to sanction andactually vote for such provisions, which if they were offered as independentsubjects, would never have received their support. In this way the people.., havebeen frequently inflicted with evil and injurious legislation. Besides, foreignmatter has often been stealthily incorporated into a law, during the haste andconfusion 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 shownthe existence of enactments, that few of the members of the legislature knewanything of before. To remedy such and similar evils, was this provision insertedinto the constitution, and we think wisely inserted.

See also Kane County v. Carlson, 507 N.E.2d 482,493 (1l. 1987) (stating that purpose of one-

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Ill. AIMS OFThE TRUTH-N-LEGISLATION AMENDMENT

The aims of our proposal largely parallel those of nineteenth-centurystate reformers who sought the inclusion of subject-title provisions in theirconstitutions. A federal subject-title amendment would provide the means to:(i) limit pork barrel spending; (ii) control the phenomenon of legislatingthrough 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 entirepackage of subjects); Floridians Against Casino Takeover v. Let's Help Florida, 363 So. 2d337,339 (Fla. 1978) (reasoning single subject rule intended to provide people with opportunityto approve or disapprove each statutory change); Garten Enterprises, Inc. v. Kansas City, 549P.2d 864, 867 (Kan. 1976) (stating purpose of single subject is to prevent a "matter oflegislative 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 restrictlegislative acts so that a "legislator will not for the purpose of voting on the bill have to weighthe 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 thesubject if desired"); Jackson v. State, 142 N.E. 423, 424 (Ind. 1924) (stating that single subjectprovision prevents supporters of one measure from embracing in legislation other unrelatedmeasures so that combined minorities may have sufficient votes to pass combined measures).

Professor Tarr notes that subject-title requirements were part of a rethinking aboutgovernment and the aims it was supposed to serve. See TARR, supra note 42, at 100.

[Njneteenth century constitution-makers understood republican government toentail not only government by the people but also government for the people. Stateconstitutions recognized... that there was a good common to the society as awhole, which government was obliged to pursue. This common good was definedless by what it was than by what it was not, namely, rule by or on behalf of asegment of society. Nineteenth-century constitution-makers believed that powerfulminorities, rather than tyrannical majorities, posed the most serious threat toliberty....

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A Controlling Spending

A desire to limit congressional spending-particularly so-called "porkbarrel" spending4 -- was the raison d'etre of the line-item veto.49 Because ofthe nature of the legislative process, critics maintained, Congress simply couldnot be trusted to curb its appetite for appropriation; thus, members ofCongress in a fit of self-loathing, were willing to increase the power of thePresident.

50

The Amendment embraces the proposition that appropriations from thepublic 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 onecongressional district, designed to curry favor with its voters." Jonathan Cohn, Roll Out theBarrel, THE NEW REPUBEc, April 20, 1998, at 19, 20.

49See, e.g., Alan J. Dixon, The Case for 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 itseffectiveness in reducing the use of legislative tactics that contribute to excess spending andwaste!); 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 federalgovernment and an increase in debt spending); Anthony R. Petrilla, Note, The Role of the Line-Item Veto in the Federal Balance of Power, 31 HARV. J. ON LEGIS. 469, 469-79 (1994)(summarizing various arguments in favor of the line-item veto).

The mere proposal of the line-item veto, constitutional considerations aside, seemedto justify people's low regard for Congress, increased further the power of the executivebranch, and called into question the future of deliberative, democratic decision-making. IfCongress can't be trusted to live within its means without the President holding the whip-handover it, one might wonder, why involve Congress in highly important matters like foreignpolicy or war powers? Our Amendment, on the other hand, provides a powerful tool to limitspending, 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 beland, labour, equipment, ideas or even money." 4 THE NEW PALGRAvE DICIONARY OFECONOMICS 141 (John Eatwell et al., eds., 1987) [hereinafter PALGRAvE DICTIONARY OFECONOMICS]. "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 theywould otherwise be able to command for their product. See TMEMIT DICTIONARY OF MODERNECONOMICS 372-73 (David W. Pearce ed., 4th ed., 1992) (defining rent seeking as "[the useof real resources in an attempt to appropriate a surplus in the form of a rent'; offering as anexample 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 marketcondition 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 moneyand therest lose....

[Tihe activity of creating monopolies could both absorb very large resources,particularly those resources that take the form of exceptionally talented individualswho 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 necessaryto organize and oppose the transfer.52 Moreover, once one such transfer isauthorized, others soon follow as additional members trade their support foran extra goody or two to take back to their constituents. Bills like this soonbegin to resemble Christmas trees, as members ornament the underlyinglegislation with pork.

It is unlikely that all of the appropriations items included in the 1999fiscal year budget53 could have survived scrutiny if each had to stand on itsown, unbundled from other legislators' pet projects and not proposed at thelast minute as part of a must-pass bill.55 Meritorious spending proposalsshould 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 couldotherwise be doing something of higher productivity and because the economy'suse of resources has been further distorted by the creation of the monopoly.

4 PALGRAVE DICTIONARY OF ECONOMICS, supra, at 147. Tullock concludes that: "[Tiheargument against rent seeking turns out to be an argument against political corruption." Id. at148. 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 actionproblem:

A dozen companies making left-handed screwdrivers may organize to getthemselves a tax break. If they win a loophole worth $12 million, each earns a coolmillion, and the investment pays off handsomely. Their tax break comes out of thepockets 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 Americansto win back a fraction of a cent each.

RAUCH, supra note 1, at 24.53See supra note 18, for a few examples.'We do not mean to suggest that judicial application of the Truth-in-Legislation

Amendment would result in a choice between allowing herniating budget bills like that passedfor Fiscal Year 1999, or requiring passage of each line-item in the budget as a separatemeasure. See supra notes 4-19 and accompanying text. The latter would, no doubt, tend toparalyze the work of Congress. Luckily, the Amendment does not require such a false choiceto be made. Congress already recognizes general "subjects"-defense, transportation,agriculture, etc. - in which all appropriations related to that topic are made. Assuming itemswere not included in the "defense" appropriations bill that did not have anything to do with theappropriations of defense funds, we see no reason why courts could not find these billsconstitutional.

"SSpeaking before the U.S. Senate in support of his 1864 proposal to add a subject-titlerequirement to the Constitution, Senator Powell complained of the "great deal of legislationwhich could not be passed on its own merits, but which yet finds its way upon the statute-book." See Powell, supra note 32, at 1447. A proposal to be "enacted into a law should gothrough upon its own merits, and not be carried because of the peculiar surroundingcircumstances in which, owing to the condition of the public service, a vital measure must belost or extraneous matter carried through by it." Id.

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otherwise worthwhile appropriations singled-out each year by good govern-ment types as examples of scandalous governmental waste.56

B. Eliminating Legislation-by-Rider

Furtive raids on the United States Treasury for the benefit of well-organized constituencies are bad enough. A more pernicious and potentiallyharmful form of pork barrel politics is the increasing use of riders to effectsubstantive policy changes.57 The linkage of the payment of back dues to theUnited Nations to a provision that no such money be used to fund thatorganization's family-planning activities,58 and the last-minute passage ofconstitutionally-suspect implementing legislation for the Chemical WeaponsBan Treaty,59 are two recent examples of "legislation-by-rider."60

'See infra notes 146-147 and accompanying text."7See, e.g., Sandra Beth Zelimer, Sacrificing Legislative Integrity at the Altar of

Appropriations Riders: 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, available in 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, available in 1998 WL 14525483 (arguingthat GOP ideologues use riders to push anti-environmentalist and anti-abortion agendas); James0. Goldsborough, Letting Extremists Dominate U.S. Foreign Policy, SAN DIEGO UNIoN-TRIBUNE, May7, 1998, atB13, available in 1998 WL4008962 (decrying GOP use of ridersto hold up payment of UN dues and IMF contributions; lamenting rise of isolationist wing ofGOP).

5See David Rogers, Republicans Use Spending Bills to Help Business Allies, AdvanceSocial 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 Houseacceptance of "antiabortion restrictions on overseas family-planning programs"); Goldsboro-ugh, supra note 57. See also Erbe, supra note 57 (describing use of riders to limit research inuse of contraceptives).

59See Hager, supra note 5, and accompanying text. The implementing legislation passedas part of the omnibus budget bill. For a summary of the constitutional problems with thislegislation, see Ronald D. Rotunda, The Chemical Weapons Convention: Political andConstitutional Issues, 15 CoNsT. COMMENTARY 131, 141-59 (1998); John C. Yoo, The NewSovereignty and the Old Constitution: The Chemical Weapons Convention and theAppointments 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 note18, at58. Sinclair maintains:

Because appropriations bills, which fund the government, must pass, HouseRepublicans [in the 104th Congress] decided to use them as vehicles to enact ahost of desired policy changes quickly and to protect them from a presidentialveto. Although appropriations bills are not supposed to include "legislative"provisions [,] ... Congress frequently uses this tactic; what was different in the104th was the large number of riders House Republicans attached to appropria-tions bills and the scope and magnitude of the legislative changes they tried tobring about in that way.

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Riders attached to legislation virtually guaranteed passage either short-circuit normal legislative procedures because the riders would be unlikely tosurvive them, or load the host legislation with a condition so unpalatable asto force the President to veto the bill.6 In 1996, for example, formerRepresentative Robert Doman attached a rider to a Defense AppropriationsBill mandating the immediate honorable discharge of all servicemen andservicewomen who tested positive for ILV.62 While such tactics are notwithout defenders,63 the practice seems inconsistent with Article I, § 7lawmaking requirements and with more general notions of deliberativedecisionmaking, particularly since such amendments are often buried in largeomnibus legislation 64 or adopted under rules that severely limit the timeallowed for debate. Since many "poison pill" or "stealth" riders are unrelatedto the host legislation, they would be fairly easy targets for a challenge underthe 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 becontrolled by minorities trying to legislate narrow agendas by legislative rider. Theanti-abortion rider would deny aid to international family planning organizations.

Congress likes riders for larding up domestic bills, but historically has had enoughsense not to booby-trap foreign policy. Even if isolationists like [Sen. Jesse] Helmsoppose both the United Nations and IMF, congressional leadership traditionally putsU.S. international interests first.

Not this time. These bills-giving Clinton the absurd choice of signing them andrewarding 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 Political Departments, 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,Environmentalists Urge Clinton to Veto "Unconscionable" Transportation Bill, 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 MilitaryBudget Bill, Avoiding Split Among Democrats, N.Y. TMES, Oct. 26, 1999, atAl (describingAdministration displeasure with Pentagon spending bill that it thought was loaded withunnecessary spending measures, but signing it for fear of being charged with endangeringnational security by veto).

'See, e.g., Slade Gorton & Larry E. Craig, Congress's Call to Accounting; Riders Reinin 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 variousappropriations bills" represents "an important way for Congress to save taxpayers fromwasteful 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 amalgamatingdisparate pieces of legislation in broadly-titled "omnibus" legislation whosetitles are, at best, vague, and, at worst, paradigmatic examples of OrwellianNewspeak. Two recent examples illustrate this point.

Ostensibly written to prevent another Oklahoma City bombing, theoriginal provisions of the Anti-terrorism and Effective Death Penalty Act of1996 (AEDPA)65 read like a federal law enforcement wish list. Were itsprovisions proposed separately, many would have gone down to defeat soonerthan they did. However, because they were lumped together in one bill, onwhich the "Anti-terrorism Act" label was slapped, legislators initiallysupported it reflexively. Most people had no idea that the bill not only wouldnot have prevented the Oklahoma City bombing, but also represented aserious abrogation of civil liberties, until a broad coalition of disparate groupsfocused attention on egregious provisions, which were eventually deleted. 66Similarly cumbersome as a piece of legislation, in 1996, Congress passed theHealth Insurance Portability and Accountability Act (HIPAA).0 HIPAAcontained a number of amendments to Medicare and Medicaid laws, andmade "health care fraud" a federal crime carrying stiff civil and criminalpenalties," though you would not have known it from reading the title.

Frequently passed to satisfy the public demand for a governmentalresponse to a perceived crisis, these omnibus bills often become an open

'Pub. L No. 104-132, 110 Stat. 1214 (1996).66The original House Bill 2768 contained enhanced penalties for the new, broadly-

defined federal crime of "terrorism" The Attorney General was authorized to determine whena crime would so qualify. These provisions alarmed civil liberties groups, which fearedselective enforcement against organizations targeted for their political views. Under theprovisions of the original bill, moreover, there was no judicial review of the Attorney General'scertification of a "terrorisf' act or group. See, e.g., Brannon P. Denning, Anti-Terrorism BillHits Civil Liberties, COM. ApP. (Memphis, Tenn.), Mar. 10, 1996, atB4availablein 1996 WL3206999 (attacking bill on grounds that it sets up potential abuse of constitutional bill ofattainder prohibition); Glenn Harlan Reynolds, Unleashed Federal Power is No Cure forTerrorism, LA. TMES, Mar. 13, 1996, at B9 (describing political atmosphere leading to bill);David Kopel, Terrifying Terror Legislation?, WASH. TAIES, Feb. 6, 1996, at Al4 (catalogingpotential infractions of liberty rights in bill). The substitute bill, while omitting the reallyoffensive measures, still showed little regard for civil liberties, and still would have donenothing to prevent the Oklahoma City bombing. But see Note, Blown Away?: The Bill of RightsAfter Oklahoma City, 109 HARV. L. REV. 2074, 2075-76 (1996) (arguing that most initialproposals 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 memberof Congress wants to be painted by opponents as soft on terrorism, streetcrime, or against affordable health care for working families? Thus, omnibusbills often provide ideal political cover for members' sops to influentialconstituencies. As with the budget bill, as long as members' individualdesiderata are included, members are not willing to rock the boat bycomplaining about their colleagues' programs and provisions. Were it not forthe whole bill, then, it is unlikely that any of the provisions, if proposedindividually, would survive the legislative process. Thus, the argumentsagainst the omnibus bill are largely the same as those deployed in thenineteenth century against the corrosive effects of "logrolling," viz., that thisvote-trading subverts majoritarian lawmaking and is tantamount to institu-tional bribery.

D. Increasing Accountability of Congress and Its Members

Last-minute riders and omnibus bills make it difficult for the mostinformed citizen to keep track of legislation and, as a consequence, to keep aneye on legislators7 0 While our proposal would not cure voter apathy, it wouldcertainly make it easier for those who are so inclined to keep abreast oflegislation affecting them or their interests, as lawmakers would no longer beable to hide important provisions in the folds of a broad title. In addition,requiring legislators to submit their pork to scrutiny through the normallawmaking process would also clarify who is really responsible for legislativeboondoggles and provide a corrective to a perennial problem in American

69See SINCLAIR, supra note 18, at 64 ("Many of the bills generally labeled omnibus aremoney bills of some sort. The most common omnibus measures in the contemporary Congressare 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" andthat "education, treatment, interdiction, prosecution, and punishment were all necessary partsof an effective antidrug strategy," but also on Speaker Wright's recognition "that an omnibusbill would garner much more media attention than would a group of narrower bills and thusyield more credit").

"°See, e.g., Garrett, Structures, supra note 7, at 425 ("Although the formulation of thefederal budget lies at the heart of governing, it is a complex process in which importantdecisions can be hidden in omnibus bills or through the use of dense, technical language. Theimpact 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 thatalso contained programs important to their constituents.').

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politics: the belief of many voters that "my legislator is okay, but yours is acrook."

71

Similarly, the Truth-in-Legislation Amendment would make Congressitself more accountable by forcing members to complete its business ontime. 2 The present system almost guarantees that Congress will delaycontentious issues until the last possible minute. Then in a flurry of activity,it produces a spending bill of herniating proportions that often includesimportant legislation deserving of considerable congressional deliberation.Our proposal would ensure that such a legislative megillah like the recentbudget, even under the most liberal interpretation of "one subject," would bestruck down.

73

Our proposal should also be popular with members of Congress growingweary of what one writer recently called the atmosphere of "permanentinsurrection."7' 4 One of the ironies of the 104th Congress's imposition of termlimits on the House leadership is that it has made members, many of whomare serving under their own self-imposed term limits, immune to demandsfrom the party leadership that they toe the party line.75 Congressional short-timers, thus "constitute a kind of roving band of mercenaries who wander theHouse floor, looking for someone to topple. They have no incentive to work

71See, e.g., HARRIS, supra note 1, at 7 ("[W]hen asked, a majority of the people who saidthat they did not approve of the job Congress was doing said nevertheless that they liked theirown members of Congress."); HIBBING & THEISS-MORSE, supra note 1, at 11 ("Citizens decrypork-barrel politics in general but are delighted when their own representative is successful inplaying the game."). Harris suggests that the voters' cognitive dissonance can be attributed tothe expectation voters have that lawmakers perform representation functions as well aslawmaking functions. HARRIS, supra note 1, at 8.

'Senator Byrd complained that the 1999 Budget resulted from Congress' failure "toenact our regular appropriation bills on time .... Senators are being asked to vote on thismassive piece of legislation that provides funding of nearly one-half trillion dol-lars-approximately one-third of the entire Federal budget-without adequate opportunity toconsider it or amend it." Byrd, supra note 9.

'For more on the proper standard of review for legislation, see infra Part VILB.74See David Grann, Permanent Insurrection, THE NEW REPUBLIC, Nov. 30, 1998, at 24.7'See id. at 25. Grann locates the source of House discontent with anew rule limiting committee chairmen to only three terms and the speaker of the Houseto four. Slipped into a rules package in the first heady hours of the Republicanrevolution, it was supposed to contain lawmakers' ambitions; instead, it has unleashedthem. ... "The rule changes have created total chaos," explains Representative JoeScarborough of Florida. They're "the dumbest thing we've ever done," adds ResourcesCommittee Chairman Don Young of Alaska.

Even more destabilizing, though, are some of the members' self-imposed termlimits ....

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 committeechairmen by Speaker Newt Gingrich in 1994).

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within the system-and no fear of reprisals from the Speaker., 76 Thesecongressional ronin are a primary source of guerilla tactics like appendingpublic policy riders to appropriations bills. Our proposal would curb suchrogue power, because any legislative act could be challenged in court. Thedisruption attending a court challenge to a major piece of legislation, and theattendant publicity for the sponsors of riders, may deter their inclusion in thefirst place."

IV. THE TRUTH-IN-LEGISLAION AMENDMENT IN CONTEMPORARYCONSTITUTIONAL AND LEGISLATIVE THEORY

As it happens, our proposal also sounds an harmonious note with currenttheories of the legislative process and constitutional law. The Truth-in-Legislation Amendment is consistent with public choice theory, whichportrays congressional lawmakers as self-interest maximizers who legislatefor the benefit of well-organized interest groups poised to help reelect them,while spreading the costs of legislation over groups of an unorganized massof persons of heterogeneous interests, i.e., the general electorate. Our proposalalso accords with representation reinforcement theory by freeing the channelsof political representation of obstructions, and by generally contributing to amore transparent lawmaking process. Further, the Amendment seeks toconstitutionalize what Judge Hans Linde has termed "due process oflawmaking."

A Public Choice Theory

Public choice theory offers a lens through which to view the problem ofriders and omnibus legislation, and also provides a sound theoreticaljustification for our proposed Amendment. The various theories of legislationloosely termed public choice theory arose largely as a reaction to pluralisttheory of democracy that dominated political science scholarship in the 1950s

76See Grann, supra note 74, at 25.'The Senate, for example, having received a spate of unfavorable commentary on the

custom whereby any member could place a bold on consideration of a particular nomination,finally ended the practice of secret holds. Now members must report their placing of a hold tothe Senate leadership. See, e.g., Walter Pincus, Loll and McConnell Also Have 'Hold' onHolbrooke, WASH. POST, July 7, 1999, at A4 ("By tradition, any member of the Senate canhold up a nomination. But the practice of blocking nominations anonymously, as a bargainingchip in unrelated matters, has come under growing criticism. After years of arguing about thepractice, Republican and Democratic leaders agreed this year to do away with it") The onlycatch is that the leader is not required to make those names public, nor to reveal when theleader 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 fromcompromise among various organized interest groups that competed forlegislative attention.79 As more groups organized, pluralists contended, moreviews would be represented in the lawmaking process, thus resulting in moreinformed decisionmaking among lawmakers.

Public choice theory challenged this sanguine view of the legislativeprocess. First, economists like Mancur Olson noted the presence of thecollective action problem that made it more difficult to organize large groupsof persons with relatively diffuse interests and easier to organize small groupsof people with narrow interests.8" Part of the problem was the presence of freeriders in large groups, i.e., those who would share in the benefits of the grouplabors, but prefer to enjoy those benefits without sharing in the costs ofproducing them. The problem is particularly acute when it comes to publicgoods, i.e., those goods-like general legislation-whose benefits are enjoyedby all, when the large group has no way of limiting the benefits to themembers of the group who actually contribute.8

These small organizations can, because they are so effective, wielddisproportionate influence in Congress. Moreover, the sort of legislation theyoften seek is very beneficial to them, and the costs of the legislation areshared by large numbers of people, who, because of the collective actionproblem, are difficult to organize to prevent the transfer. This activity isknown among economists as rent-seeking. Lawmakers often have tremendousincentives to assist these small groups because the groups are able to providemoney, favorable publicity, and votes for that lawmaker. Conversely, ifspurned, lawmakers know that those same groups have the ability to hurt themat the polls.

To use Professor Glenn Reynolds' terminology, riders and other hiddenprovisions operate as parasites on host legislation.82 And, as Jonathan Rauch

78For a good summary of the pluralists' claims, and the critical response, see DANIEL A.FARBER & PHuIP P. FRIcKEY, LAw AND PuBuic CHOICB: A CRIrICAL INTRODUcTION 12-62(1991); Peter H. Schuck, The Politics ofEconomic Growth, 2 YALE L. & PoL'Y Rv. 359,360-62 (1984) (review essay), and sources cited therein. See also RAucH, supra note 1, at 59.79See 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, andthe socially desirable equilibria to which groups' complex interactions naturally led").

"See MANCUR OLSON, Tn LOGIC OF COLLE ACTION passim (1965).81See Schuck, supra note 78, at 362.A public good is one that, once supplied to any individual, cannot feasibly be withheldfrom 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,IsDemocracy Like 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 OurAmendment would spotlight the most egregious forms of this activity, makingbills laden with material not germane to the general subject of the billvulnerable to judicial invalidation.84 Members would be free to seek rents forspecial interest groups to their hearts' delights, but would have to do it underthe glare of media (and constituent) scrutiny.

B. Representation Reinforcement Theory

John Hart Ely's work Democracy and Distrust" articulated a theory ofjudicial review that, while retaining elements of judicial restraint advocatedby the Legal Process school of the 1950s and 60s,86 avoided the conclusions

8RAuCH, supra note 1, at 73. Rauch writes:In the economy, as in nature, a parasite is set apart from a mere freeloader by its abilityto force its target to fend it off. This is the sense in which transfer seekers are, not soloosely speaking, parasitic: they are not only unproductive themselves, they also forceother people to be unproductive.

Id.24Professor Cass Sunstein, after undertaking a survey of substantive constitutional

restrictions on legislation, argued that these restrictions support the judicial invalidation ofwhat he terms "naked preferences." See Cass R. Sunstein, Naked Preferences and theConstitution, 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 andFourteenth Amendments, Sunstein writes, were "aimed at a single evil the distribution ofresources to one person or group rather than another on the sole ground that those benefitedhave 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 aunitary conception of the sorts of government action that the Constitution prohibits," is a quitepersuasive and an excellent example of "penumbral reasoning," it has not been embraced bythe Supreme Court. See Brannon P. Denning & Glenn Harlan Reynolds, ComfortablyPenumbral, 77 B.U. L. REv. 1089, 1090 (1997) (describing penumbral reasoning as courts'willingness to supplement text, precedent, and history with inferences from relatedconstitutional provisions, structure of the constitution, and underlying principles).

We think our proposal here retains the benefits of Professor Sunstein's proposal, butimproves upon it by providing a textual source for invalidating naked preferences, thusremedying the uncertainty and mutability of his penumbral proposal. Proponents of judicialrestraint might be suspicious of a doctrine that tends to expand, without a clear textualmandate, judicial oversight of the legislative process, and would thus prefer the Article Vamendment route.

sJOiN HART ELY, DEMOCRACYAND DISTRUsT:ATHEORYoFJUDICIAL RBvIBWpassim(1980).

6See HENRYM. HART,JR. &ALBERTM. SACKS, THE LEGALPROCESs: BASIC PROBLEMSIN 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 likeLearned Hand8 9 and Felix Frankfurter, 90 that courts should almost neveroverride the process of majoritarian lawmaking, because of their presumptionthat the majority had the right to be mistaken.9' The judiciary, they main-tained, should not operate as a "bevy of Platonic guardians"; indeed, itapproached illegitimacy when it did so lightly.92

Ely agreed that the results of the political process are due respect,93 butonly if the procedures by which decisions are made are fair and open. TheConstitution, Ely wrote, "is overwhelmingly concerned, on the one hand, withprocedural fairness in the resolution of individual disputes (process writsmall), and on the other, with what might capaciously be designated processwrit large-with ensuring broad participation in the processes and distribu-tions of government." 94 Racial discrimination and malapportionment hadoften operated to skew the results of majoritarian lawmaking. Therefore, inthose situations in which the majority had succeeded only by stifling minorityvoices, the judiciary had a role to play in restoring a level playing field.95

Similarly, Ely wrote, courts should be suspicious of legislative decisions that

'See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L.REV. 1, 7-9 (1959).83See ALxANDER M. BICKEL, TZM LEAST DANGEROUS BRANCH: THE SUPREME COURT

AT THEBAROp POLricS 16-23 (1962).8See LEARNED HAND, Tm BILL OF RIGHTS 27-30 (1958).'°See Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 599 (1940) ("Except where the,

transgression of constitutional liberty is too plain for argument, personal freedom is bestmaintained-so long as the remedial channels of the democratic process remain open andunobstructed-when it is ingrained in a people's habits and not enforced against popular policyby the coercion of adjudicated law.'") (footnote omitted); see also West Virginia State Bd. ofEduc. v. Bamette, 319 U.S. 624, 650 (1943) (Frankfurter, J., dissenting) (the Framers "did notgrant to this Court supervision over legislation," but viewed "the narrow judicial authority tonullify legislation... with ajealous eye" because it "prevent[s] the full play of the democraticprocess').

9 See ELY, supra note 85, at 87.'See HAND, supra note 89, at73.93See ELY, supra note 85, at 87 ("ITihe selection and accommodation of substantive

values is left almost entirely to the political process").HId. (footnotes omitted)."See id. at 103.In a representative democracy value determinations are to be made by our electedrepresentatives, 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 arechoking off the channels of political change to ensure that they will stay in and the outswill stay out, or (2) though no one is actually denied a voice or a vote, representativesbeholden to an effective majority are systematically disadvantaging some minority outof simple hostility or a prejudiced refusal to recognize commonalities of interest, andthereby denying that minority the protection afforded other groups by a representativesystem.

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externalized costs, :forcing them on those unrepresented in the lawmakingbody, like foreign corporations or out-of-state citizens. 96

The Truth-in-Legislation Amendment, too, attempts to correct blockagesin the congressional lawmaking process caused by a willingness of legisla-tures to oversupply legislation for well-organized interest groups, to theexclusion of unorganized constituents. The Amendment is aimed at blockagesimposed by well-positioned legislators who can, through riders, impedelegislation in order to exact tolls or advance a partisan agenda at the expenseof 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 ridersare attached to legislation and subjecting them to judicial challenge.97

C. Due Process ofLawmaking

Almost a generation ago, Hans Linde sketched a model of "due processof lawmaking" that criticized legislators for taking advantage of limitedjudicial review of most legislation by passing laws without knowing how orwhether a particular law would work, or worse, by passing laws without

"Id. at 125. Ely expresses some skepticism about judicial attempts to force legislaturesto state their purposes, so they can be tested for impermissible purposes. See id. at 125-29. Elythinks that "the most effective way to get our representatives to be clearer about what they areup to in their legislation is to get them to legislate:' Id. at 131. We agree, and our proposalseeks to do just this by closing off opportunities to sneak legislation of dubious general utilityin under the public radar. It does not restrict Congress' ability to legislate, but merely subjectsthat process to greater scrutiny both within Congress and among voters. Of course we do hopethat the procedures the Amendment requires Congress to follow does influence the substanceof its work product in ways described in Part IlL

Some scholars have criticized Ely's theory for shortchanging the substantive valuesembodied in the Constitution. See generally Laurence H. Tribe, The Puzzling Persistence ofProcess-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 beenargued that substantive rather than purely process-based constitutional values support courtprotection of the victims of racial and ethnic prejudice, and that, in general, 'procedural' failurecannot explain heightened review of government actions injuring various minorities.").

One such value, prominent in recent constitutional scholarship, is that of majoritypopular sovereignty. Professor Akhil Amar argues that popular sovereignty is not just a goodidea, 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) [hereinafterAmar, Sovereignty]. Professor Amar's belief that majority popular sovereignty is perhaps thesubstantive value of the Constitution is perhaps best illustrated by his writings on constitutionalamendment, which he claims may be effected-the procedures of Article V notwithstand-ing-by a simple, national majority vote. See, e.g., Akhil Reed Amar, Consent of theGoverned: ConstitutionalAmendment OutsideArticle V, 94 COLUM. L. REV. 457 (1994); AkhilReed Amar, Philadelphia Revisited, 88 U. Cm. L. REV. 1043 (1988).

Here, too, our Amendment arguably advances the interests championed by scholars likeProfessor Amar. The Framers' anti-oligarchical vision of Congress merely acting as the agentsof its sovereign principal, "We the People," is very much in tension with the present systemwhereby individual members of Congress can hold necessary legislation hostage to thatmember's whims or parochial interests, and force concession of pet projects or pet policies forfavored constituents. See Amar, Sovereignty, supra, at 1427 ("Guided by emerging principlesof agency law and organization theory, the Federalists consciously designed a dual-agencygovernance structure in which each set of government agents would have incentives to monitorand enforce the other's compliance with the corporate charter established by the People ofAmerica.") (footnote omitted). Of course, under the proposed Amendment, nothing wouldprevent 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 desiredgoal" and "oblige[s] legislators to inform themselves in some fashion aboutthe existing conditions on which the proposed law would operate, and aboutthe 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 mustpresumably take some account of evidence, at least in committee sessions.A member who never attends the committee meetings should at leastexamine the record of evidence before casting a vote, or be told about it,and should certainly never vote by proxy. The committee must explain itsfactual and value premises to the full body. Surely there is no placefor avote on final passage by members who have never read even a summaryof the bill, let alone a committee report or a resume of the factualdocumentation.. . .These kinds of demands are implicit in due process, iflawmakers are really bound to a rule that laws must be made as rationalmeans toward some agreed purpose.1°0

Yet, Linde felt that the only lawmaking process that approximates the modelhe sketched was the administrative process. 0 1 Legislatures can and dosometimes make laws without undertaking a sincere effort to accumulate asufficient factual basis on which they can make effective legislative decisions.Because of the rational basis standard which courts apply in the exercise ofjudicial review, such statutes will largely be immune from challenge.' 2 Lindecriticized this approach to lawmaking as "indefensible when one takesseriously the notion that due process commands a legislature first to agree ona purpose and then to assess the efficacy of the proposed means to accomplishit.YP0

Taking up the question, "What might 'due process of law' mean inlawmaking?, 104 he answered that, at a minimum, laws taking life, liberty, orproperty must accord with "a legitimate law-making process."105 As herealized, though, this merely begged the question, "Which 'lawmakingprocesses are legitimate and which are not."' 1" One of the concerns of alegitimate lawmaking has been the integrity of the process itself: "In the 19th

9 Hans A. Linde, Due Process of Lawmaking, 55 NBa. L. REV. 197 (1976).

99MId. at 223.10Id. at 224 (emphasis added)....See id. at 225.'02See id. at 225-26.'03 d. at 226-27.104Id. at 239.051d.106Id.

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century, the reaction to legislative recklessness, ignorance, logrolling, andcorruption led to constitutional strictures on the forms and procedures ofenactment [like single-subject and subject-title requirements], some of whichwe now find inappropriate."'" Later, the initiative and referendum wereemployed to secure legitimacy.1°8 In any case, Linde's point was thatlegitimate lawmaking procedures are defined from time to time, and that therules are laid down so that legislators and laypersons alike can judge forthemselves whether a legislature is operating according to the rules or not:

If a legislative body fails to reapportion itself when required, if it stops theclock in order to enact bills after the constitutional deadline, if absentmembers are counted as part of a quorum or as having voted, if impracticalrequirements for reading bills are ignored, the participants know that theyare not complying with the constitution or can readily be reminded of it byanyone. . . .Those who cut procedural corners will argue practicaljustifications; they will deny culpability if no substantive injustice results,and the fact that improperly made laws are not invalidated no doubtencourages this pragmatic view; however, they will not claim ignoranceof the rules.' 9

Yet, wrote Linde, "[tihe problem with due process in lawmaking lies inthe consequences of its violation. When a law is promulgated withoutcompliance with the rules of legitimate lawmaking, is it not a law?"' 0 Notingthat courts are often unwilling "to question legislative adherence to lawfulprocedures," Linde termed this reluctance, when phrased as "a problem of'proof, or of respect between coordinate branches," merely "rationaliza-tions." ' Courts are no more likely to be the target of public opprobriumwhen they strike down a statute for violating procedural require-ments-irregularities that are easily corrected-than when they invalidate thesubstance of a given law." 2

Nevertheless, Linde admitted that:

the question of the consequences of noncompliance remains an obstacle tosimply equating due process and compliance with prescribed rules forlawmaking.... [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 alawmaking procedures that can be repeatedly corrected, yet we take substantive judicial reviewfor granted.).

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a law on every showing that it was improperly enacted. They are reluctantto visit the past sins of its legislative fathers on an otherwise inoffensivestatute ....

This means either that courts tolerate violations of due process of lawmakingor that not every procedural defect constitutes a violation of due process." 4

Linde then asked the question what "can 'due process' sensibly mean asa constitutional standard for lawmaking[?]""' 5 Instead of seeking judicialreview of the substance of legislative acts, he urged that thought should begiven to what constitutes legitimate lawmaking process. While acknowledg-ing that his focus on process as opposed to substance was a heresy that madethe wholesale acceptance of his theory unlikely," 6 he concluded with theobservation that attention to process is important because:

[i]f this republic is remembered in the distant history of law, it is likely tobe for its enduring adherence to legitimate institutions and processes, notfor its perfection of unique principles of justice and certainly not for therationality of its laws. This recognition now may well take our attentionbeyond the processes of adjudication and of executive government to anew concern with the due process of lawmaking." 7

At the heart of Linde's due process of lawmaking model, then, is aconcern with procedural integrity and legislative honesty, which in turn assurethat 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 areoften seen by the public as the result of back-room, under-the-table dealsbetween incumbents and organized special interests. Certainly the proceduresused to pass bills like the Fiscal Year 1999 budget do little to foster a sensethat the process is not, as it seems, opaque and sleazy." 8

However, as Linde recognized, there is a difficulty in both separatinglegitimate and illegitimate lawmaking procedures, and in devising ways forthe judiciary to enforce any such standards. Professors Eskridge, Frickey, andGarrett point out that the Supreme Court has flirted with due-process-of-lawmaking standards in requiring judicial deference to reasonable agency

1131d at 245." 4See id.

I"Id. at 251." 6See id. at 254 (because to "judge legislation as a process, not as a product, not only

drives courts toward the problems of standards and of sanctions that we have touched on, italso requires them to deny validity to some excellent enactments while sustaining deplorableones 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"19) and in a clearstatement canon of statutory construction in which the Court will not presumea congressional intent to alter federalism arrangements. 20 Yet, "[i]f dueprocess of lawmaking is intended to improve legislative decisionmaking, whyshould we rely on the relatively indirect mechanism of judicial review?''

They note that Congress may be unaware of these judicial techniques, orforget them, or ignore them "in the hope that a particular law will never facea judicial challenge .... 122 They suggest:

Why not approach the problems of deliberations and decisionmaking moredirectly through the use of internal legislative rules and proceduresdesigned to foster full and transparent deliberation? A framework thataffects a substantial amount of congressional business may be more salientto lawmakers and the public than the occasional judicial pronouncement.' 23

As they later concede, however, these internal rules can be waived orsuspended (and usually are, particularly when Congress is facing adeadline).

24

Our Amendment is offered in the spirit of Linde's cri d'coeur, and withProfessors Eskridge, Frickey, and Garrett's desire to rely on procedures ofwhich all the parties have notice, but with better prospects for enforcementthan that which they offered. Instead of having to rely on legislators'collective sense of public duty, our proposal will carry the authority of anArticle V amendment and the imprimatur of not only congressionalsupermajorities, but also the broad and deep approval necessary for stateratification. By constitutionally def'ming a due process of lawmaking, ourAmendment would not only create the possibility of judicial enforcement, butalso establish a baseline against which lawmakers' actions could bemeasured-regardless of whether the judiciary had an opportunity to enforceit. As Judge Linde put it:

We do not assume that a law has been constitutionally made merelybecause a court will not set it aside.... Other participants than the courtshave the opportunity, and the obligation, to insist on legality in lawmaking.... A governor or a president ought to veto, on constitutional grounds, abill 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 itsenactment. If an attorney general advises prosecutors not to enforce a lawenacted with the clocks stopped after a constitutional deadline, he acts tomaintain due process despite the fact that a conviction under the law wouldbe sustained.... It is not mere theory to distinguish between constitutionallaw and judicial review.1 5

V. THE TRUTH-IN-LGISLATION AMENDMENT AND EXISTINGCONSTITUTIONAL RESTRAINTS ON CONGRESS

Substantive restraints126 on Congress' legislative power are not unknownto the Constitution. Though lacking the insights of the University of Chicagoeconomics department, the Framers nevertheless managed instinctively tograsp the spirit of the contemporary theories-especially public choicetheory-described in the previous part. Consequently, the Framers built intothe Constitution a number of provisions with which the Truth-in-LegislationAmendment will be quite at home.

The very enumeration of powers is itself a limit: Article I vests Congressonly with the "legislative powers herein granted."'" Moreover, Article I, § 9lists laws that Congress may not pass. Congress may not suspend the writ ofhabeas 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 ofnobility,13 1 to name a few restrictions.

In addition, several enumerated powers themselves contain restraints orlimits on their scope; many of these were added at the insistence of delegatesat the Philadelphia Convention who were fearful of conspiracies by largestates against the interests of smaller ones, or by regional combinationslegislating at the expense of the odd region out. Delegates from Marylandinsisted that Congress' taxing power include the requirement that "all Duties,

'Linde, supra note 98, at 243-44.

"NIt can be argued that the Truth-in-Legislation Amendment is aprocedural, rather than

a substantive restriction on Congress, and thus comparisons with the substantive restrictionson 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 orprocedural; it could fit comfortably in either Article I, § 7, or in Article I § 9. Moreover, giventhe close relationship demonstrated between the procedures of law and the law's substance, wethink 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 "SubstantiveLimits Based on Procedural Concerns").

127U.S. CONST. art L § 1.mSee id., art L, § 9, eL. 1.'"See id., art. I, § 9, cl. 3.13°d., art, § 9, cl. 5.13See id., art I § 9, el. 8.

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Imposts and Excises... be uniform throughout the United States,"'32 and,even then, Luther Martin complained that the so-called "Uniformity Clause"did not go far enough to prevent selective taxation.'33 A uniformity require-ment also appears in the clause granting to Congress the power to establishrules for naturalization and for bankruptcy. 34 Acknowledging that uniformitywas one way to prevent the passage of partial or special legislation, theSupreme Court recently held invalid a congressional bankruptcy provisionthat applied to only one debtor. 35 This reflexive disapproval of what we todaywould call rent-seeking is also reflected in the "Port Preference Clause" ofArticle I, § 9,136 which prohibits Congress from granting to the ports ofparticular states "preferences" in "any Regulation of Commerce or Revenue"over ports in another State; for example, by designating the ports of Virginiaand Massachusetts, but not those of Georgia or Maryland, to be duty-freeports. The same clause also prohibits Congress to require that "Vessels boundto, 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 understoodthe vulnerability of lawmaking to interest group pressure; that legislators

mSee id., art 1,§ 8,cl. 1.'See Luther Martin, Genuine Information, Delivered to the Legislature of the State of

Maryland (Nov. 12, 1787), reprinted in 3 REcORDS Op TBE FEDERAL CONVEmNION Op 1787,at 172, 205 (Max Farrand ed., rev. ed., 1966).

See U.S. CONST. art. I § 8, c. 4.35See Railway Labor Executives' Ass'n v. Gibbons, 455 U.S. 457, 473 (1982)

(concluding that "[tihe uniformity requirement . .. prohibits Congress from enacting abankruptcy law that, by definition, applies to one regional debtor"; to survive scrutiny a lawmust at least apply uniformly to a defined class of debtors).

L3 U.S. CONST. art L § 9, c. 6.13 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 Mergesand 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 HarlanReynolds, The Proper Scope of the Patent and Copyright Power, 37 HARV. J. ON .IS. 45(2000).

The Bill of Rights, too, can be understood as a hedge against the agency costs that attendrepresentative governmenL See AKEHL REED AMAR, THE BILL OP RIGHTS: CREATION ANDRECONSTRUCTION xiii (1998) ("Mhe Bill of Rights was centrally concerned with controllingthe 'agency costs' created by the specialization of labor inherent in a representativegovernment. In such a government, the people ... delegate power to run day-to-day affairs toa 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 therelationship between government and citizen). Later amendments addressed aspects ofgovernmental operations and regulated inter- or intragovernmental relationships. See id. UnderProfessor Ruh's schema, the Truth-in-Legislation Amendment would fall in the lattercategory.

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might be tempted to legislate against the commonwealth for the benefit ofwell-organized minorities; and that one way to help the legislature avoid thetemptation to succumb to that pressure was to limit its legislative authoritythrough procedural and substantive restrictions. As governments at both thefederal and state level began to take on more responsibility in the nineteenthand twentieth centuries, the opportunities for legislators to yield to interestgroup pressures increased dramatically. In addition, the outrageous cost ofelections and reelections has placed lawmakers in the position of relying onwell-funded groups to finance their campaigns-groups that expect legislatorsat least to lend a sympathetic ear, if not a facile pen, in return.

These problems were recognized and addressed at the state level throughinnovations like the subject-title clause.'39 We feel confident in putting forthour proposal that the Truth-in-Legislation Amendment is completelyconsistent with the existing framework of the Constitution, as well as with theFramers' republican vision. It is, in short, a nineteenth-century innovationwhose time has come again.

Despite our certitude, we are sure that our proposal will encounterdoubters. Accordingly, in the next Part we address some of the likelyobjections 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 respondto some of these objections, none of which are, even if tenable, insurmount-able.

A Greed is Good

The author of a recent article in The New Republic4 ' raises a "macro"objection to our proposal: It aims to stop a good---even necessary-aspect ofour democratic system. Subtitled "[tihe case against the case against pork,"Jonathan Cohn's essay declares, "Pork is good. Pork is virtuous. Pork is theAmerican 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 seetheir fight against government pork as a series of "epic struggles of goodversus evil-of principled fiscal discipline versus craven political self-interest-with the nation's economic health and public faith in government

139See 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, "pork-barrel spending [is] good for American citizens and American democracy aswell. Instead of criticizing it, we should be celebrating it, in all of itsgluttonous glory.' '1 3

Cohn's apologia makes four points. First, he argues that pork-busting isoften merely a cover for a partisan or ideological agenda. This fact "calls intoquestion [a] group's reliability when it comes to making delicate distinctionabout what is truly wasteful.""' Second, he argues that the amount of moneyinvolved in pork-barrel spending is not really that much. While noting thatone 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 peoplewith that much money .... But it's less than one percent of the federalbudgetL"14 Third, Cohn writes, "it's not even clear that all of the $13.2 billionof waste is really, well, waste.",141 Finally, Cohn argues that pork is necessaryto make the wheels of the legislative process turn, implying that theelimination of pork would entail the elimination of the useful things thatCongress manages to pass each year. 47 Faced with this possibility, concludesCohn, the rest of us are better off allowing members of Congress to extractwhat amounts to protection for the good of the nation. 48

None of Cohn's points strikes us as a good argument for preserving thepresent system. His point about the de minimis cost of pork, when expressedas a percentage of the total federal budget, reminds us of a remark attributedto the late Senator Everett Dirksen: "A billion here and a billion there andpretty soon you're talking about real money."'" This point, moreover, failsto account for the psychic costs that accompany the manner in which thismoney 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 nationalinterests 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, withdisproportionate shares going to powerful lawmakers. But again, pork is such asmall portion of the budget that "equalizing" its distribution would mean onlymodest 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 thescrutiny bills get when they move through the normal appropriationsprocess. They stick in small bits of pork after hearings end because theyknow that nobody is going to vote against a multibillion-dollar bill justbecause it has a few million dollars of pork tucked in. And they can do sosafe in the knowledge that, because there's very little in the way of a papertrail, they will not suffer any consequences.151

Such skullduggery contributes to the public perception that the systemis rigged in favor of well-organized groups of special interests which, throughcampaign contributions, are able to ensure that their legislator will devotetime to securing goodies for them, instead of attending to the well-being of hisor her other constituents (and that of the nation as a whole). The present

* system furthers the perception that Congress is unrepresentative and doesnothing but waste money. These costs are not negligible; in part our proposalis aimed at restoring some integrity to the lawmaking process, and at shoringup the public's badly eroded confidence in the ability of Congress to functionas it was intended. Cohn's "pork," moreover, represents only one type oflegislation. Even if there is a "keeps-the-wheels-turning" justification forpayoffs to individual members of Congress, Cohn's defense does not justifyattempts to extract other forms of rent-major policy changes, for exam-ple-by attaching riders.

Finally, as Jonathan Rauch points out, there is real cost involved inseeking rents,'15 as opposed to committing resources to more sociallybeneficial uses like research and development:

About the lowest [estimate] is 3 percent of the gross national product ayear. At the other end of the range, David Laband and John Sophocleusfigured that Americans-including criminals as well as legal transfer-seekers-invested about $1 trillion in transfer activity in 1985, whichwould have been about a quarter of the GNP that year.

However, most estimates cluster in the range of 5 percent to 12 percentof GNP every year. In 1993, that would be $300 billion to $700 billion. Ifthose estimates are in the ballpark, then by hunting for redistributivegoodies Americans make themselves about 5 percent to 12 percent poorerthan they otherwise would be.153

"'Cohn, supra note 48, at 23."'See RAUCH, supra note 1, at 117. Professors Merges and Reynolds note that certain

corporate patent holders now devote more time and money seeking legislative extensions forthose patents than to the development of new patentable products. The continuous granting ofsuch extensions, they argue, is at odds with the text and intent of the Patent and CopyrightClause, and should be subjected to strict scrutiny by courts. See Merges & Reynolds, supranote 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 moneyexpended by persons who stand to lose from such rent-seeking, and are forcedto repel parasitic lawmaking. 154

It may be true that many of the items tagged as pork provide returns thatjustify the initial investment by the federal government, even if the investmentinitially seems to benefit only a particular district. 155 Cohn criticizes watchdoggroups who fail to investigate particular appropriations, and who insteadmerely "call something waste because it makes a clever pun,'' 56 rather thanconsidering its merits. But given the secrecy in which these items are addedto bills, should the burden of proving their economy and utility really be ongroups trying to monitor the lawmaking process?

We think not. The Truth-in-Legislation Amendment aims to drag someof this activity into the light. Cohn should agree: If a particular measure isdesirable, then let the representative or senator submit it for the approval ofhis colleagues (and constituents) after due consideration. Otherwise, let themexplain to the people that these sorts of measures are necessary to enableCongress to do its business; let voters hear powerful members explain thatthey are entitled to particular appropriations by virtue of their position, theirseniority, or for providing a key vote. If courts were able to strike downlegislation containing their non-germane measures, these members could notserve as the squeaky wheels that require greasing with pork so that neededlegislation can slide past.

Even if Cohn is correct, and the distribution of pork does have salutaryeffects, our proposal would not stop all pork-barrel politics. Even under afairly strict enforcement regime, bills dealing with necessarily generalappropriations-transportation, agriculture, defense, and the like-still offerample 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 fromfinanciers, brokers and other assorted financial middlemen, Ranch writes that they "flunkD thebasic test: [they are] not forcing anyone else to fend [them] off... A bad stockbroker or apesky real estate agent can take your money if you do hire him, but only a transfer-seeker cantake your money if you don't hire him." Id. at 73.

Describing how the passage of several large federal regulatory statutes in the 1970sresulted in a "'parasite culture' of lobbyists, trade associations, journalists, and similargovernment 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 Parasite Cultureof Washington: Take the Money and Stay, THE NEW REPUBLIc, July 28, 1986, at 16, quotedin PETE W.MORGAN& GLENN H.REYNOLDS, TIB APPEARANCE OF IMPROPRIETY: HOW TBEETmics 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 otherwisecontroversial legislation. The inability of Congress to aggregate differentappropriations bills into one giant bill might also take away the incentives formembers from, say, an agricultural district, to support measures in the defenseappropriations bill designed to benefit districts with huge defense plants,because the agricultural appropriations are not tied up in the same bill asdefense 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 beenviolated should be framed in terms of the relative capacity of courts to identify and distinguishpositive-sum and negative-sum logrolls." Gillette, supra note 36, at 658. Professor Gillettedoubts that courts have advantages over the legislative processes to "resolve the ambiguityabout the existence of a proscribed 'single subject' .' Id. He also questions whether logrollingis as inherently bad as we have suggested it is. See id. at 659-60 (suggesting that logrollingenables minority interests to achieve support for their proposals that would not otherwisegarner majority support). He also points out that single-subject bills, at most, eliminatesimultaneous trades (intra-act logrolling), while leaving in place lawmakers' opportunities fornonsimultaneous trades (inter-act logrolling). See id. at 661 ("Those who trade though amultiple-subject act have the alternative of logrolling the same provisions by trading voteswhen each subject is separately considered.') (footnote omitted). The latter, he argues, willlikely be chosen for the most egregious or objectionable trades. See id. at 661-63. Whileacknowledging that a number of factors make simultaneous trades easier to perform, he warnsthat "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 generalmean that one would be less likely to welch on a deal to trade votes for separate pieces oflegislation. See id. Professor Gillette concludes that "legislators would tend to choosenonsimultaneous trades for the most obvious or egregious logrolls, because these combinationswould be most susceptible to challenge and judicial invalidation.... Ironically, the result isthat most legislation attacked as violative of the single-subject rule will. . . not emerge fromthe 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, ifenforcement of our Amendment eliminates significant amounts of simultaneous logrolls,temporally-extended logrolls will necessarily pick up the slack. If our purpose of providingmuch more public (and media) scrutiny of the appropriations process succeeds, then certainspending measure that would otherwise have been hidden away might become politicallyuntenable, even though a legislator has given his word to another to vote for it in exchange fora 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 notes57-64 and accompanying text, where riders, unrelated to host legislation under even the mostliberal interpretation of "subject," are intended to gain passage for major policy changes on thebacks of must-pass legislation. Finally, we are not convinced that state court reticence toenforce the provision, which may be abating somewhat, would necessarily apply were ourAmendment 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 thejudiciary would not be the sole enforcer. See infra notes 189-190 and accompanying text.

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B. Title-Subject Requirements Haven't Been Effective in the States

While single-subject requirements "represent an important limit on[state] legislative authority and illustrate the result of public disillusionmentwith legislative abuses,"'15s actual invalidation of state legislation is arelatively rare occurrence."5 9 In large part, this is due to the deference givento the legislative process' 60 -emphasized repeatedly in state court deci-sions-and an unwillingness on the part of the courts to convert title-subjectprovisions into obstacles to "proper and needful legislation,"' 6' or tootherwise embarrass the legislature.162

'Robert F. Williams, State Constitutional Law 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. FranklinCounty Bd. of Elections, 580 N.E.2d 767. 769 (Ohio 1991) (holding that "courts havediscretion 'to rely on the judgment of the General Assembly as to a bill's compliance with theConstitution") (citation omitted). Yet, in these same opinions, the Ohio high court hasindicated that extreme cases were judicially cognizable. See, e.g., Franklin Co. Bd. ofElections, 580 N.E.2d at 769 (reserving right to invalidate enactments "due to a manifestlygross and fraudulent violation of [the subject-title requirement]" (internal quotation marksomitted)); 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 specifictopics in an act and when there are no discernable practical, rational or legitimate reasons forcombining the provisions in one act, there is a strong suggestion than the provisions werecombined 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 singlesubject, may not be for the purposes of logrolling but for purposes of bringing greater orderand 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 ismisplaced. One Ohio legislator introduced a measure that would require a "LegislativeServices Commission" to flag constitutionally-suspect bills, in an effort to put teeth in Ohio'smoribund single-subject requirement. His measure was opposed by a colleague who voiced theopinion that it was not "the Legislative Service Commission's---or even the legisla-tWre's-place to determine constitutionality .... The only real opinion is the one from thecourt,"' he said. Paul Souhrada, Lawmaker Wants Others to Stick to Subject, THm PLAIN

DEA.ER (Cleveland, Ohio), Feb. 2, 1998, at5B, available in 1998 WL4118477. So, in Ohio,the courts rely on the Legislature to give effect to the provision, which in turm disclaimsresponsibility 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) ("ThisCourt will resolve doubts in favor of the procedural and substantive validity of an act of thelegislature . . . [W]e ascribe to the General Assembly the same good and praiseworthy

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Those states whose courts regard the subject-title provision as manda-tory, not hortatory, and thus are willing-in theory-to enforce it, often sethigh standards that litigants must overcome. Many courts will only enforcethe provisions against gross or clear violations.163 As to what constitutes sucha violation, there are many tests that express the same basic idea. Courts havegenerally resisted a formalistic reading of the statute that converts everydeviation from the subject-title provisions as grounds for invalidation.164 Mostcourts measure the act against the purposes of the constitutional provision: tocurb logrolling and to prevent the public or other legislators from beingmisled about the nature of the legislation. 65 This purposive approach has, inmany cases, led to the single subject requirement being collapsed into the titlerequirement so that as long as the multiple subjects are expressed in the title,there is no violation. Similarly, courts often broadly construe the singlesubject requirement, allowing the inclusion of material that is reasonablyconnected with, germane to, related to, or having any legitimate connectionwith, and not incongruous or disconnected to a single purpose or a generalsubjectL66 In the words of the illinois Supreme Court:

motivations as inform our decision-making processes.") (citation omitted)." See, e.g., People v. Dunigan, 650 N.E.2d 1026, 1035 (1L 1995) ("This court has held

... that a legislative enactment violates the single-subject requirement only when the statute,on its face, clearly embraces more than one subject."); Franklin County Bd. of Elections, 580N.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-subjectrequirement "'should not be construed narrowly or technically to invalidate proper and needfullegislation ....) ; Miller v. Blair, 444 N.W.2d 487, 489 (Iowa 1989) (rejecting "the view thatthe existence of two seemingly dissimilar subjects in a bill," each of which could conceivablyconstitute 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.2d775, 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 whichthe General Assembly concerns itself.") (citations omitted); Wise v. Bechtel Corp., 766 P.2d1317, 1319 (Nev. 1988) ("[The main test of the application of the clause to a particular statuteis whether the title is of such a character as to mislead the public and members of thelegislature 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 mayinclude 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 bedeemed, 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 asubject, which may be as broad as the legislature chooses, so long as the matters included havea natural and logical connection") (citation omitted); People v. City of Chicago, 111 N.E.2d626, 632 (11. 1953) ( "To render a provision in the body of a statute void as not embraced inthe 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 asthe legislature chooses, so long as the matters included have a natural orlogical connection. An act may include all matters germane to its generalsubject, including the means necessary or appropriate to the accomplish-ment of the legislative purpose. Nor is the constitutional provision alimitation on the comprehensiveness of the subject; rather, it prohibits theinclusion of "discordant provisions that by no fair intendment can beconsidered 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 providesufficient analysis in the application of their own well-worn tests. So often,state courts dispose of single-subject cases through "[fiormalistic explana-

with the title.) (citation omitted); Harding, 831 P.2d at 969 (quoting State v. Reeves, 666 P.2d1190 (Kan. 1983) (stating that "'only where an act embraces two or more dissimilar anddiscordant subjects that cannot reasonably be considered as having any legitimate connectionwith or relationship to each other' constituted a violation); Metropolitan Sports FacilitiesComm'n v. County of Hennepin, 478 N.W.2d 487, 491 (Minn. 1991) ("[What is required isthat all matters in the bill be 'germane' to one general subject.") (citation omitted); Miller, 444N.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 thatif 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 constitutionalone-subject provision to countenance invalidation only of legislation embracing "'two or moredissimilar and discordant subjects that by no fair intendment can be considered as having anylegitimate connection with or relation to each other," but holding that it did not follow "thatany two subjects in a multifaceted piece of legislation must, in isolation, demonstrably relateto each other for the bill to pass constitutional muster," only that "all subjects relate to a singlepurpose"); 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 shouldembrace one general subject; and by this is meant, merely, that all matters treated should fallunder some one general idea, be so connected with or related to each other, either logically orin 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 challengedlegislation 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 encompassedin the bill are necessarily or properly connected to each other rather than disconnected orincongruous... :' (quotingIn re House Bill No. 1353,738 P.2d 371,374 (Colo. 1987) (statingthat "if legislation 'is gennane to the general subject expressed in the title; if it is relevant andappropriate 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 eitherfunctionally related to one another or are reasonably germane to one another or the objects ofthe enactment!); In re Breene, 24 P. 3, 4 (Colo. 1890) ("a matter is clearly indicated by thetitle, when it is clearly germane to the subject mentioned therein").

'67City of Chicago, 111 N.E.26 at 632 (quoting People v. Board of County Comm'rs ofCook County, 189 N.E. 26,27 (11. 1934)).

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tions" embodied in either "a short statement of a rule accompanied by a stringof citations or in a mechanical restatement of the relevant text[,]" both ofwhich techniques "have long [been] discredited as aridly conceptualistic andhopelessly literalistic."' 68

Many courts that uphold diverse legislation as long as the subjectscontained in a particular bill are "reasonably germane" to the title, or as longas the court can discern a "rational unity" among them, do so withoutunpacking or defining those phrases. Indeed, the opinions often convey asense of the judicial unwillingness to develop a meaningful standard forchallenges to legislation. At other times, the courts interpret their constitu-tions' provisions so loosely as to empty them of any meaning, as when courtshold that the subject-title requirement is satisfied if the title hints at themultiple subjects in the body of the bill; or when they tolerate a title so broadthat it can be said that all provisions in the body of a bill relate to, aregermane to, or have a rational unity with its title.

Though it is overstated, there is some truth to an early twentieth-centurycommentator's observation that no criteria for subject-title requirements "hasbeen developed by judicial action," except in cases of flagrant violation. '69

The judicial attitude toward subject-title challenges may arise in part from thefact that constitutional challenges to state legislation frequently include anallegation of a subject-title violation, making those provisions "the usual lastresort of constitutional arguments," as Justice Holmes once characterizedEqual Protection Clause challenges. 70 Such familiarity can breed judicialcontempt. But we disagree with that same commentator's assessment thattitle-subject requirements are "so indefinite that they do not present anobjective standard by which the validity of legislation may be tested"; andthat "no test of violation is laid down by the provision itself.' 17 ' Recentexamples from state court opinions demonstrate that such criteria can bedeveloped, and that judicial underenforcement is not inevitable. 7 1

'6'ROBERT F. NAGEL, CONSTrUTIONAL CULTURES: T1 MENTALiTY AND CONSE-

QUENCES oF JUDIciALRBvIw 129 (1989) (footnote omitted).16W.F. Dodd, The Problem of State Constitutional Construction, 20 COLUm. L. RBv.

635,640 (1920).'7°Buck v. Bell, 274 U.S. 200, 208 (1927). The Nevada Supreme Court anticipated

Justice Holmes' comment: "The reports show that seldom, indeed, has the validity of a lawcome 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'rsof 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 statutoryprovisions against single-subject challenge, noting that act "embraces but a single subject- ie.,implementation of the state budget for the 1996 fiscal year') and Arangold Corp., 1999 WL

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California Supreme Court Justice Stanley Mosk recently criticized thepractice of folding the one-subject requirement into the title requirement sothat multiple issues may be addressed as long as the title gives fair warningto the public and to legislators:

[Petitioners] deny that the provision sets forth an independent requirementthat a bill must first be confined to one subject and assert that a statutecomplies with the Constitution even if it includes numerous unrelatedsubjects as long as they are all germane of the title of the act. The problemwith this claim is that it reads the single subject provision out of theConstitution and substitutes for it a provision that a statute with multiplesubjects complies with [the provision] so long as those subjects areincluded within the title.173

A more plausible reading, as Justice Mosk suggests, makes the single-subjectinquiry a threshold matter, compliance with which is a necessary but notsufficient condition for a judicial determination of an act's constitutionality.174

482301, at *12 (Hieple, J., dissenting) (perhaps prematurely lamenting death of Illinois' single-subject clause), with People v. Cervantes, No. 87229 (Ill. Dec. 2, 1999), available at<http://www.state.iLus/court1l999/87229.han> (invalidating "Safe Neighborhood Law," whichincluded provisions related to various unrelated criminal statutes and established privately-operated 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 Actin relation to governmental matters, amending named Acts," which combined law enforcementmatters, truth-in-sentencing legislation, and provisions related to perfection and satisfactionof hospital liens); Johnson v. Edgar, 680 N.E.2d 1372, 1374 (11. 1997) (invalidating bill thatbegan as eight-page act relating to reimbursement of state by prisoners for expense of theirincarceration that resulted in a 200 page bill "so voluminous that not even the broad title of 'AnAct 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 criminalsentencing 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 (Ohio1999) (striking down state tort reform legislation for, inter alia, violating state constitution'ssingle-subject rule); Washington v. Cloud, 976 P.2d 649, 655-56 (Wash. 1999) (striking downprovisions 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 billthat "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 CareNetworkv. Missouri, 968 S.W.2d 145, 149 (Mo. 1998) (invalidating legislation because title failed "toexpress clearly a single subject).

"7Harbor v. Duekmejian, 742 P.2d 1290, 1300 (Cal. 1987). Justice Mosk went on towarn the legislature against attempts to title bills with "matters of 'excessive generality' thatwould 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 appeargermane only to topics of excessive generality such as 'government' or 'public welfare")).

74See id. at 1300.

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Other state judges, similarly unwilling to interpret substantive restrictionson legislative cupidity out of existence,175 have put the legislature on notice,at least prospectively, of an intent to invoke the title-subject restrictions.1 76

The opinions of these state judges belie the claim that adducing meaningfulstandards to guide legislatures is beyond the institutional competence of thejudiciary, or that such standards are impossible to articulate. The WashingtonSupreme Court's 1995 decision Washington Federation of State Employeesv. Washington" 7 is a useful case in point. In a partial dissent, JusticeTalmadge wrote of his concern that the Washington high court's "treatmentof [Washington's one-subject requirement] has too often been a talismanicrecitation of the 'rational unity' doctrine without a real discussion of what thatdoctrine means. 178 As Justice Talmadge interpreted the requirement, theprovision contains two distinct tests:

First, are the sections of the legislation connected by a rational relation-ship, or, as the case law has expressed it, are the provisions of thelegislative 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 beone 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 MinnesotaSupreme Court concurred specially in a case in which the court turned aside a title-subjectchallenge 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'sConstitution, Justice Yetka felt compelled to put the legislature on notice that the title-subjectrequirement would henceforth be interpreted more strictly:

Garbage or Christmas tree bills appear to be a direct, cynical violation of ourconstitution and however enticingly they may be drafted and whatever promisethey may contain, we must have the will and the courage to resist the temptationto affirm the legislative action.... Thus, we should publicly warn the legislaturethat if it does hereafter enact legislation similar to [that upheld in the case] ... wewill 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 constitutionalprovision proscribing change in meaning of bill on its way through passage "was to put themembers of the assembly and others on notice.., so they might vote on it with circumspec-tion") (citation omitted).

When the Commonwealth argued that the Pennsylvania Supreme Court should regardas nonjusticiable an allegation that a bill regarding the salary of public officials violated a stateconstitutional 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 questionpresented 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 dono 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 thesequestions is a distinct question under [the constitutional provision] andmust be satisfied.... 179

In answering the first-whether the subjects shared a "rational unity"-Tal-madge concluded that the courts should be guided in its determination by "thetwo general principles that underlie [the provision]: notice to the Legislatureand to the public, and the prevention of logrolling," while according to thelegislature "a wide latitude in defining a 'subject." 180

Justice Talmadge then set forth five criteria to test legislation against theone-subject provision. Courts should consider, he wrote, whether: (i) "theprocess by which the law was enacted open to public involvement"'81 ; (ii)"the public [was] given adequate notice of the contents of the enactment!"';(iii) "the issues [have] been considered together historically"8 3 ; (iv) "thesubject matter of the enactment" 84 ; and (v) whether "the title of the enactmentindicate[s] a common unifying theme to the enactment.,' 8 The point is notthat Justice Talmadge's schema is the only, or even the best, approach toapplying a title-subject requirement 86 ; rather, it is that his effort demonstratesthat meaningful criteria can be articulated by courts. The United StatesSupreme Court has been forced to reckon with constitutional provisionsoffering far less guidance than that offered by the text of most subject-titlerequirements. Moreover, in applying our Truth-in-Legislation Amendment,the Court need not reinvent the wheel-it will be able to draw upon thejurisprudence and collective experience of forty-three state courts to do so."8

It is also worth noting that states' comprehensive revision and codifica-tion efforts present special problems to courts trying to enforce theseprovisions. Because of differences in legislative competencies at the state andfederal level, a subject-title amendment should work better at the federal levelthan at the state because Congress does not legislate on the diversity of topicsthat states do. Congress, for example, is rarely faced with the task ofcompletely recodifying a particular area of law, like criminal codes or statutesrelated to descent and distribution.

'I9 d. at 1042 (citations omitted)."1Id. 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 thatenough to invalidate the bill? Must the bill fail more than one of the tests? Any effectivescheme 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 easilycircumvented; a bill could simply be given an extremely broad title, onesuggesting a connection among otherwise heterogeneous pieces of legislation.First, the possibility that Congress will attempt to evade the restrictionsimposed by the Truth-in-Legislation Amendment should not militate againstits adoption. Passage of the Amendment by two-thirds of both Houses ofCongress, and its ratification by three-fourths of State legislatures orconventions would signal both broad and deep support for the mea-sure-support that the legislative and judicial branches would ignore at theirperil. 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. Forinstance, the Illinois Supreme Court has noted on this subject that "[t]he titleof 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 fairlypoint out the subject-matter of the act which is to follow it."' 8 An overlygeneral title, "A Bill Related to the Prevention of Crime" or the like, wouldraise concerns that the legislature is addressing more than one issue in thebody of the bill.

Finally, we note that responsibility for the enforcement of the Truth-in-Legislation Amendment does not solely lie with the judiciary. Congress andthe President, too, have a role in guarding against the enactment of unconsti-tutional laws. Though many state legislatures have often seen fit to skirt theedges of their constitutional subject-title requirements, or to ignore thementirely, it is not inevitable that Congress will do the same, or if it does, thatthe President will not veto the offending measure on constitutional grounds." 9

In fact, the presumption of constitutionality that acts of Congress and thePresident enjoy in the courts is grounded in the judicial assumption thatindependent constitutional review occurs at each of those levels and that theother branches have taken constitutional limitations--even the inconvenientones-into account. In the experience of the states, that presumption seemsto have been unwarranted; should Congress follow suit, a role for thejudiciary would seem clear. Where a mandatory constitutional provisionimposes an obligation on lawmakers, "the judicial branch cannot ignore aclear violation because of a false sense of deference to the prerogatives of asister branch of government."' 90

'88Rouse v. Thompson, 81 N.E. 1109, 1111 (l. 1907); see also Harbor v. Deulmae.jian,742 P.2d 1290, 1303 (Cal. 1987) (warning that attempts to title bills with "subjects of'excessive generality"' would violate title-subject requirement).

' See supra note 125 and accompanying text.'"Consumer Party of Penn., 507 A.2d at 334.

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C. Unnecessary, and Duplicative of Existing Congressional Safeguards

Another argument against our Amendment would likely be that similarlimitations already exist in Congress. The Rules of the House of Representa-tives, for example, contain the provision that "no motion or proposition on asubject different from that under consideration shall be admitted under colorof 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 ridersbe germane exists in the Senate, which is not bound by the rules of theHouse.192 In the interest of bicameral accommodation, the House often retreatsfrom its stated rule, allowing nongermane Senate provisions to stand whenversions of the bill passed by each house are harmonized in the ConferenceCommittees. In the House itself, rules are routinely suspended to facilitate thehurried passage of legislation at the last possible moment. Even if Housemembers did not have a vested interest in acquiescing to violations of Houserules, and filed suit, standing would be difficult to obtain, and courts wouldlikely be extremely reluctant to intervene in the internal governance of thelegislative branch. Moreover, nothing would prevent the House from merelyamending its rules to omit the germaneness requirement, thus mooting anysuit brought by a plaintiff with proper standing. In short, all a concernedcitizen 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 thelawmaking process. The Amendment, critics might argue, is an unnecessarytechnicality that could hinder the flexibility of the lawmaking process.Certainly in some quarters there has always been an hostility to judicialenforcement of structural features of the Constitution on the grounds thatobservance of the limits that inhere in federalism, separation of powers, eventhe requirements of Article I, § 7, like bicameralism, slow down thelegislative process and contribute to gridlock. Contemporary commentatorsquestioned the wisdom and utility of subject-title requirements within state

191Rules of the House of Representatives XVI, cl. 7.

nUntil 1995, when it was eliminated, the Senate's Rule XVI barred the addition of

riders to spending bills. See Tim Weiner, Senate Riders Put Some on the Inside Track, N.Y.TIMES, July 7, 1999, at A18. For a description of the old Senate rule, see Stanley Bach,Germaneness Rules and Bicameral Relations 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 Constitutionexplicitly recommended their repeal. 94, The last thing we should do, suchcritics might argue, is to introduce more obstacles to federal legislative action.

Actually, our proposal would not hinder the legitimate business ofCongress one iota.195 As accounts of the last-minute passage of the budget billdemonstrate, such omnibus bills are really undertaken for the benefit ofindividual members, who can force the addition of pork to the bill or effectother rent transfers both because other members wish to do the same thing andbecause the impending recess of Congress severely limits time for debate.Many members publicly lamented that they had not even read the budget, norcould they have been expected to possess even passing familiarity with theforty-pound behemoth.' 9 The presence of an additional procedural require-ment could deter such last-minute slathering on of appropriations for thebenefit of well-connected rent-seekers, or at least provide a party with properstanding a remedy for the most insidious provisions that get through theprocess. In any event, one person's formalism is another's due process orprocedural integrity. Our entire lawmaking process-passage, presentment,signature (or veto) by the President, override, roll-call voting-involvesformalism of one sort or another.

E. Will Encourage "Judicial Activism"

The flip side to the objection that the title-subject requirements wouldnot work is the objection that they might work all too well: Opponents ofparticular bills, having lost on the floor of Congress, could seek a minorityveto in the courthouse. A hostile judiciary then might interpret the Amend-

193See Dodd, supra note 169, at 640 (arguing that title-subject requirements are "soindefinite that they do not present an objective standard by which the validity of legislationmay be tested," that "no test of violation is laid down by the provision itself[,] and [that] nonehas been developed by judicial action" except in cases of flagrant violation; noting that failureof legislature to follow procedural provisions such as subject-title requirements "may lead tocourt tests of the validity of statutes"). See also William J. Keefe, The Functions and Powersofthe State Legislatures, in STATELEGISLATURES INAMEUCANPOLrrICS 50 (Alexander Hearded., 1966) (suggesting that judicial use of constitutional procedural devices to invalidate non-complying legislation, such as single-subject requirement, is unnecessarily "harsh"); Frank P.Grad, The State Constitution: Its Function and Form for Our Time, 54 VA. L REv. 928, 930(1968).

'1The Model State Constitution abolished, as part of its suggested "reform" of stateconstitutions, "virtually all procedural and substantive limits on legislative action.' TARR,supra note 42, at 156.

195We emphasize the use of the negative pregnant: To the extent that our Amendmentprevents Congress from a repeat performance of the recent budget follies, that is, for us, oneof its virtues. Likewise, some may argue that anything that hampers Congress' ability to passlaws is, by definition, a good thing.

16See Hager, supra note 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 standingwould also prevent a flood of frivolous suits; litigants would have todemonstrate a particular injury to bring suit in federal court ' 9 In addition, ifa provision was struck as having violated the Amendment, Congress couldrepass the offending portion immediately in a separate measure. 98 Judicialinvalidation under the Amendment is not, after all, a judgment about thestatute's substance. Rather, a nonconforming law is struck down because theprocess 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 barrelpolitics that undermined majority rule and diminished accountability, manystates imposed restraints, like subject-title requirements, on legislatures. Asthe recent budget process graphically demonstrates, the pathologies of latenineteenth-century state lawmaking still plague the federal legislative process.We suggest that members of Congress unhappy with that process, facilitatingas it does last-minute looting of the Treasury for old-fashioned pork, or thedistribution of other rents to select groups, follow the states' examples andpropose a federal title-subject clause-the Truth-in-Legislation Amendment.

While our proposal might lack the "sex appeal" of a Balanced BudgetAmendment, term limits, or the line-item veto, we cheerfully plead guilty toconsiderations of substance over style. Our proposal will not eliminate all

"~Compare Raines v. Byrd, 521 U.S. 811 (1997) (plaintiffs lacked standing to challengeline-item veto), with Clinton v. New York, 524 U.S. 417 (1998) (standing found). See alsoSkaggs v. Carle, 110 F.3d 831, 832 (D.C. Cir. 1997) (finding that members of Congress lackedstanding 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 hasstanding 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 judicialunderenforcement, or nonenforcement of the sort common at the state level. Even amendmentsto the U.S. Constitution are not immune to judicial abnegation. For all of the academicuncertainty accompanying the belated ratification of the Twenty-seventh Amendment ("No lawvarying the compensation for the services of the Senators and Representatives shall take effectuntil an election of Representatives shall have intervened."), the judiciary has shown littleinterest in enforcing it, using a variety of procedural doctrines to defeat challenges to automaticcongressional cost-of-living increases. See Boehner v. Anderson, 30 F.3d 156 (D.C. Cir. 1994);Shaffer v. Clinton, 55 F. Supp. 2d 1014 (D. Colo. 1999). Congress seems to regard cost-of-living increases in their salaries as outside the scope of the Amendment, despite the fact thatthey "vary[] the compensation" without intervening elections, in contravention of theAmendment's plain text. See Associated Press, Congress Likely to OK Pay Raise, N.Y. TIMEs,July 15, 1999; CNN, House Expected to Give Itself Pay Raise, July 14, 1999, available in<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 rent-seeking-parasites are, after all, highly adaptable199 -but we submit that nosystem consistent with our constitutional traditions and that preserves itsvaluable checks and balances of our regime could possibly eliminate allabuses of the legislative process.

The best security in the first instance is for an informed electorate tochoose honest, civic-regarding representatives. Rewarding these representa-tives with reelection when they refuse to engage in pork-barrel politics orwhen they eschew the use of non-germane riders to pass substantivelegislation, as opposed to criticizing them for not protecting the interests oftheir constituents, is of equal importance.

Because old attitudes die hard, particularly when those attitudes rewardfederal spending in voters' districts, a virtuous electorate is unlikely tospontaneously generate. Moreover, the present congressional legislativeprocess provides no incentives for pursuing the public interest; the public-regarding legislator is often penalized for taking a principled stand. Therefore,we have proposed the Truth-in-Legislation Amendment as a way to encouragelegislative virtue by imposing reasonable procedural and substantive restraintson the process of lawmaking. The imposition of this mild fetter on Congresswill, in the long run, result in a greater ability to pass public-regardinglegislation unencumbered by profligate spending, obstructionist riders, andthe payment of "tolls" to members who might otherwise block important bills.A subject-title requirement (present in the constitutions of over four-fifths ofthe states) strives to place accountability and responsibility for lawmakingback where the Constitution puts them-with a majority of the members inboth houses of Congress, working with the President, at the head of-and nothostage to-our legislative process.2 °

For an illustration of how adaptable, see Jonathan Rauch, Lean Budget, BloatedGovernment, 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--likethe Appalachian Regional Commission and the National Writing Project---are not only stillthere, but had their average spending grow by 3 percent since the Republicans took overCongress").

20°See U.S. CONST. art. I, § 7.

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APPENDIX A

1005

STATE STATE SINGLE TITLE YEARCONSTITUTION SUBJECT REQUIREMENT ADOPTED

PROVISION PROVISION

Alabama '"Each law shall Yes Yes 1865contain but one

Article IV, subject, whichSection 45 shall be clearly

expressed in itstitle, exceptgeneral appro-priation bills,general revenuebills, and billsadopting acode, digest, orrevision of stat-utes."

Alaska "Every bill Yes Yes 1959shall be con-

Article II, fined to oneSection 13 subject unless it

is an appropria-tion bill or onecodifying, re-vising, or rear-ranging existinglaws. Bills forappropriationsshall be con-fined to appr-opriations. Thesubject of eachbill shall beexpressed in thetitle."

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1006 UTAH LAW REVIEW [1999:957

Arizona "Every Act Yes Yes 1912shall embrace

Article 4, but one subjectPart 2, and matters

Section 13 properly con-nected there-with, whichsubject shall beexpressed in thetitle; but if anysubject shall beembraced in anact which shallnot be ex-pressed in thetitle, such actshall be voidonly as to somuch thereof asshall not be em-braced in thetitle."

Arkansas "The general Yes No 1877appropriation (for appro-

Article V, bill shall em- priations)Section 30 brace nothing

but approp-priations for theordinary ex-pense of theexecutive,legislative andjudicial depart-ments of theState; all otherappropriationsshall be madeby separatebills, each em-bracing but onesubject." _

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UNEASY RIDERS

California

Article 4,Section 9

I I

"No bill, exceptgeneralappropriationbills, shall bepassed contain-ing more thanone subject,which shall beclearly ex-pressed in itstitle; but if anysubject shall beembraced inany act whichshall not beexpressed in thetitle, such actshall be voidonly as to somuch thereof asshall not be soexpressed."

Connecticut N/A No No N/A

Yes"A statute shallembrace butone subject,which shall beexpressed in itstitle. If a statuteembraces a sub-ject not ex-pressed in itstitle, only thepart not ex-pressed isvoid...."

Colorado

Article V,Section 21

1849

1876

No. 4] 1007

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UTAH LAW REVIEW

Delaware

Article II,Section 16

"No bill or jointresolution, ex-cept bills ap-propriatingmoney for pub-lic purposes,shall embracemore than onesubject, whichshall be ex-pressed in itstitle."

1897

Florida 'Everylaw Yes Yes 1868shall embrace

Article 3, but one subjectSection 6 and matter

properlyconnectedtherewith, andthe subject shallbe briefly ex-pressed in thetitle."

Georgia "No bill shall Yes Yes 1877pass which re-

Article 3, fers to moreSection 5, than one sub-

Paragraph 3 ject matter orcontains matterdifferent fromwhat is ex-pressed in thetitle thereof."

Hawaii 'Each law shall Yes Yes 1959embrace but

Article III, one subject,Section 14 which shall be

expressed in itstitle."

1008 [1999: 957

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No. 4] UNEASY RIDERS 1009

Idaho "Every act shall Yes Yes 1890embrace but

Article I1I, one subject andSection 16 matters prop-

erly connectedtherewith,which subjectshall be ex-pressed in thetitle; but if anysubject shall beembraced in anact which shallnot be ex-pressed in thetitle, such actshall be voidonly as to somuch thereof asshall not beembraced in thetitle."

Illinois "Bills, except Yes No 1870bills for appro-

Article 4, priations andSection 8(d) for the codifica-

tion, revision orrearrangementof laws, shallbe confined toone subject.Appropriationsbills shall belimited to thesubject of appro-priations.'

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1010 UTAH LAW REVIEW [1999: 957

Indiana "An act, except Yes No 1851an act for the

Article 4, codification,Section 19 revision or rear-

rangement oflaws, shall beconfined to onesubject andmatters prop-erly connectedtherewith."

Iowa 'Every act shall Yes Yes 1857embrace but

Article 3, one subject,Section 29 and matters

properly con-nected there-with; whichsubject shall beexpressed in thetitle. But if anysubject shall beembraced in anact which shallnot be ex-pressed in thetitle, such actshall be voidonly as to somuch thereof asshall not beexpressed in thetitle."

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No. 4] UNEASY RIDERS 1011

Kansas "No bill shall Yes Yes 1859contain more

Article 2, than one sub-Section 16 ject, except ap-

propriation billsand bills forrevision or cod-ification of stat-utes. The sub-ject of each billshall be ex-pressed in itsttle... Theprovisions ofthis sectionshall be liber-ally construedto effectuate theacts of the legis-lature."

Kentucky "No law en- Yes Yes 1891acted by the

Section 51 General As-sembly shallrelate to morethan one sub-ject, and thatshall be ex-pressed in thettle. .... I I I"J

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UTAH LAW REVIEW

Louisiana

Article 3,Section 15(A)

& (C)

"Every bill,except the gen-eral appropria-tion bill andbills for theenactment, re-arrangement,codification, orrevision of asystem of laws,shall be con-fined to oneobject. Everybill shall con-tain a brief titleindicative of itsobject.""No bill shallbe amended ineither house tomake a changenot germane tothe bill as intro-duced."

1845

Maine N/A No No N/A

Maryland "[Elvery Law Yes Yes 1867enacted by the

Article III, General As-Section 29 sembly shall

embrace butone subject,and that shallbe described inits title."

Massachusetts N/A No No N/A

Michigan "No law shall Yes Yes 1850embrace more

Article 4, than one object,Section 22 which shall be

expressed in itsitle... I

1012 [1999:957

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UNEASY RIDERS

Minnesota "No law shall Yes Yes 1857embrace more

Article 4, than one sub-Section 17 ject, which

shall beexpressed in itstitle."

Mississippi 'TEvery bill in- No Yes 1959troduced into

Article 4, the legislatureSection 71 shall have a

title, and thetitle ought toindicate clearlythe subject-matter or mat-ters of the pro-posed legisla-tion."

Missouri 'No bill shall Yes Yes 1875contain more

Article 3, than one sub-Section 23 ject which shall

be clearly ex-pressed in itstitle, exceptbills enactedunder the thirdexception insection 37 ofthis article andgeneral appro-priation bills,which may em-brace the vari-ous subject andaccounts forwhich moneysare appropri-ated."

No. 4] 1013

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UTAH LAW REVIEW

Montana

Article V,Section 11(3)

"Each bill, ex-cept generalappropriationbills and billsfor the codifica-tion and generalrevision of thelaws, shall con-tain only onesubject, clearlyexpressed in itstitle. If any sub-ject is em-braced in anyact and is notexpressed in thetitle, only somuch of the actnot so ex-pressed isvoid."

1889

Nebraska "No bill shall Yes Yes 1875contain more

Article III, than one sub-Section 14 ject, and the

same shall beclearly ex-pressed in thetitle."

Nevada "Bach law en- Yes Yes 1864acted by the

Article 4, LegislatureSection 17 shall embrace

but one subject,and matter,properly con-nected there-with, whichsubject shall bebriefly ex-pressed in thetitle... "

1014 [1999: 957

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No. 4] UNEASY RIDERS 1015

New N/A No No N/AHampshire

New Jersey 'To avoid im- Yes Yes 1844proper influ-

Article 4, ences whichSection 7, may result from

Paragraph 4 intermixing inone and thesame act suchthings as haveno proper rela-tion to eachother, everylaw shall em-brace but oneobject, and thatshall be ex-pressed in thetitle. This para-graph shall notinvalidate anylaw adopting orenacting a com-pilation, con-solidation, revi-sion, or rear-rangement ofall or parts ofthe statutorylaw."

New Mexico "The subject of Yes Yes 1911every bill shall

Article 4, be clearly ex-Section 16 pressed in its

title, and no billembracingmore than onesubject shall be

I passed...

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UTAH LAW REVIEW

New York "No private or Yes Yes 1846local bill,

Article 3, which may beSection 14 passed by the

legislature,shall embracemore than onesubject, andthat shall beexpressed in thetitle."

North N/A No No N/ACarolina

North Dakota "No bill may Yes Yes 1889embrace more

Article 4, than one sub-Section 13 ject, which

must be ex-pressed in itstitle; but a lawviolating thisprovision isinvalid only tothe extent thatthe subject isnot expressed."

Ohio "No bill shall Yes Yes 1851contain more

Article IL than one sub-Section 15(D) ject, which

shall be clearlyexpressed in itstitle."

1016 [1999: 957

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No. 4] UNEASY RIDERS 1017

Oklahoma "Bvery act of Yes Yes 1907the Legislature

Article 5, shall embraceSection 57 but one subject,

which shall beclearly ex-pressed in itstitle, exceptgeneral appro-priation bills,general revenuebills, and billsadopting acode, digest, orrevision of stat-utes .... Pro-vided, That ifany subject beembraced inany act contraryto the provi-sions of thissection, suchact shall bevoid only as toso much of thelaw as may notbe expressed inthe title there-of."

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1018 UTAHLAWREVIEW [1999:957

Oregon "Every Act Yes Yes 1859shall embrace

Article IV, but one subject,Section 20 and matters

properly con-nected there-with, whichsubject shall beexpressed in thetitle. But if anysubject shall beembraced in anAct which shallnot be ex-pressed in thetitle, such Actshall be voidonly as to somuch thereof asshall not beexpressed in thetitle. This sec-tion shall not beconstrued toprevent the in-clusion in anamendatoryAct, under aproper title, ofmatters other-wise germaneto the samegeneral subject,although thetitle or titles ofthe original Actor Acts may nothave been suffi-ciently broad tohave permittedsuch matter tohave been soincluded insuch originalAct or Acts, orany of them."

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No.4] UNEASY RIDERS 1019Pennsylvania

Article 3,Section 3

"No bill shallbe passed con-taining morethan one sub-ject, whichshall be clearlyexpressed in itstitle, except ageneral appro-priation bill or abill codifyingor compilingthe law or apart thereof."

1874

Rhode Island N/A No No N/A

South "Bvery Act or Yes Yes 1868Carolina resolution hav-

ing the force ofArticle H1, law shall relateSection 17 to but one sub-

ject, and thatshall be ex-pressed in thetitle."

South Dakota "No law shall Yes Yes 1889embrace more

Article II, than one sub-Section 21 ject, which

shall be ex-pressed in itstitle."

Tennessee "No bill shall Yes Yes 1870become a law

Article I, which em-Section 17 braces more

than one sub-ject, that sub-ject to be ex-pressed in thetitle...."

No. 4] UNEASY RIDERS 1019

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1020 UTAH LAW REVIEW [1999: 957

Texas "(a) No bill, Yes Yes 1845(except general

Article 3, appropriationSection 35 bills, which

may embracethe various sub-jects and ac-counts, for andon account ofwhich moneysare appropri-ated) shall con-tain more thanone subject.(b) The rules ofprocedure ofeach houseshall requirethat the subjectof each bill beexpressed in itstitle in a man-ner that givethe legislatureand the publicreasonable no-tice of that sub-ject. The legis-lature is solelyresponsible fordeterminingcompliancewith the rule.(c) A law, in-cluding a lawenacted beforethe effectivedate of this sub-section, maynot be heldvoid on the ba-sis of an insuf-ficient title."

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UNEASY RIDERS

Utah

Article VI,Section 22

-r T

"Except generalappropriationbills and billsfor the codifica-tion and generalrevision oflaws, no billshall be passedcontainingmore than onesubject, whichshall be clearlyexpressed in itstitle."

1895

Vermont N/A No No N/A

Virgini "No law shall Yes Yes 1902embrace more

Article IV, than one object,Section 12 which shall be

expressed in itstitle."

Washington "No bill shall Yes Yes 1889embrace more

Article 2, than one sub-Section 19 ject, and that

shall be ex-pressed in thetitle."

No! 4] 1021

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UTAH LAW REVIEW

West Virginia

Article 6,Section 30

"No act hereaf-ter passed, shallembrace morethan one object,and that shallbe expressed inthe title. But ifany object shallbe embraced inan act which isnot so ex-pressed, the actshall be voidonly as to somuch thereof asshall not be soexpressed."

1872

Wisconsin "No private or Yes Yes 1848local bill which

Article 4, may be passedSection 18 by the legisla-

ture shall em-brace more thanone subject,and that shallbe expressed inthe title."

1022 [1999:'957

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No. 4] UNEASY RIDERS 1023

Wyoming "No bill, except Yes Yes 1890general appro-

Article 3, priation billsSection 24 and bills for

codification andgeneral revi-sions of thelaws, shall bepassed contain-ing more thanone subject,which shall beclearly ex-pressed in itstitle; but if anysubject is em-braced in anyact which is notexpressed in thetitle, such actshall be voidonly as to somuch thereof asshall not be soexpressed:'

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UTAH JAW REVIEW

APPENDIX B

States with subject-title requirements, in order of adoption:

1844 New Jersey

1845 LouisianaTexas

1846 New York

1848 Wisconsin

1849 California

1850 Michigan

1851 Indiana(subject only)

Ohio

1857 MinnesotaIowa

1859 KansasOregon

1864 Nevada

1865 Alabama

1867 Maryland

1868 FloridaSouth Carolina

1870 Illinois(subject only)

Tennessee

1872 West Virginia

1874 Pennsylvania

1875 MissouriNebraska

1876 Colorado

1024 [1999:957

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UNEASY RIDERS

1877 GeorgiaArkansas

(appropriationsonly)

1889 MontanaNorth DakotaSouth DakotaWashington

1890 IdahoWyoming

1891 Kentucky

1895 Utah

1897 Delaware

1902 Virginia

1907 Oklahoma

1911 New Mexico

1912 Arizona

1959 AlaskaHawaii

Mississippi(title only)

The following States have enacted no subject-title provisions: Connecticut, Maine,Massachusetts, New Hampshire, North Carolina, Rhode Island, and Vermont.

1025No. 4]

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