Constrained behavior: understanding the entrenchment of legislative procedure in American state constitutional law.

• Author: Miller, Nancy Martorano

ABSTRACT

Political analysts have suggested that policy power will begin to shift from the federal government to state governments as gridlock in Congress persists. Therefore, understanding the policymaking process at the state level is more important than ever. Vitally missing from our understanding of policymaking in the states is the role of constitutional provisions. Many state constitutions contain directives that severely limit the ability of the legislature to act. Some of these directives are procedural while others are more substantive. This is relevant because constitutional rules are more difficult for members to alter than chamber rules. In this study we present a quantitative measure of constitutional restrictiveness and explore the variation in this measure across the fifty state legislatures and the U.S. Congress. We discover that constitutional restrictiveness is largely explained by the historical era in which the most recent constitution has been passed.

1. INTRODUCTION

   Recent commentaries regarding the implications of persistent Congressional gridlock have suggested that we will see a significant shift in power to the states with regards to solving many of our most significant policy problems. (1) Gaining a better understanding of the politics of the state legislative process should be of increasing interest to us all. Understanding the evolution and development of state legislatures is vital to accomplishing this goal.

   Scholars have been long fascinated by the evolution and development of legislatures in the United States. This fascination has focused predominately on the development of the United States Congress. Countless books and journal articles have focused on the development of congressional committee systems, (2) political party structures, (3) leadership, (4) and procedural rules. (5) Other works have addressed generally the process of congressional institutionalization. (6)

   Disproportionately less scholarly attention has been given to the evolution and development of state legislatures. Many of the studies of state legislative evolution and development that do exist were conducted long ago and typically focus on the development of a legislative institution in a single state. (7) More modern explorations of state legislatures have focused on explaining institutional differences across state legislatures, with little attempt to track institutions over time or determine the evolution of these institutional differences. (8) There have been very few historical treatments of state legislatures that are cross-sectional in nature. Notable examples are Squire and Hamm's 101 Chambers: Congress, State Legislatures, and the Future of Legislative Studies (9) and Squire's The Evolution of American Legislatures: Colonies, Territories, and States, 1619-2009. (10) Our purpose in this study is to consider how constitutions impact the ability of legislatures to conduct business and solve policy problems.

2. THE PASSAGE OF ABORTION RESTRICTIONS, A TALE OF THREE STATES

   Knowing that most efforts to lobby for more restrictive abortion policy at the federal level are futile and largely a waste of resources, the pro-life movement has chosen to focus its resources and efforts on the passage of laws at the state level. (11) A report from the Guttmacher Institute states that in just two years (2011-2013), 205 abortion restrictions were enacted in the states versus 189 during the previous ten years (2001-2010). (12) While pro-life advocates naturally will target ideologically conservative states in their efforts to have these laws enacted, they are sometimes enacted with substantial controversy. (13) In the summer of 2013 the legislatures of three states--Texas, Ohio, and North Carolina--passed bills that restrict abortion. (14) Each of these three states enacted these bills in very different ways, which were influenced by state constitutional provisions or lack thereof.

   1. Texas--Out in the Open

      Senate Bill 5 was introduced during a special session of the Texas legislature in June 2013. (15) Special sessions may only be called by the governor, who also dictates the agenda of the session. (16) The bill would place restrictions on abortion that many asserted would lead to the closing of most of the abortion clinics in the State of Texas. (17) Article III, section 35 of the Texas Constitution reads:

      (a) No bill, (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject.

      (b) The rules of procedure of each house shall require that the subject of each bill be expressed in its title in a manner that gives the legislature and the public reasonable notice of that subject. The legislature is solely responsible for determining compliance with the rule.

      (c) A law, including a law enacted before the effective date of this subsection, may not be held void on the basis of an insufficient title. (18)

      All bills introduced in the Texas legislature must contain a single subject and that subject must be clearly expressed in the title of the bill. (19) This provision is fairly common in many state constitutions and its purpose is to provide some transparency in the legislative process. (20) As required, this attempt to restrict abortion was introduced and considered as a separate bill. (21) Article III, section (40) of the Texas Constitution also limits special sessions to thirty days. (22) Senator Wendy Davis (Democrat, Fort Worth), an opponent of the bill, successfully filibustered for thirteen hours to block passage of the bill. (23) Her attempt brought national attention to the bill, but the restrictions were ultimately enacted via House Bill No. 2, which was introduced, considered, and enacted in a second special session convened by Governor Rick Perry in July 2013. (24)

      The Texas case illustrates one situation in which, because of the single subject provision in the state constitution, it is very difficult for members of the legislature to enact potentially controversial legislation using procedures that could possibly mask the topic of the legislation. The case also illustrates the possibility that some state constitutional provisions--such as limits on session length--can be used to help a minority slow the progress or block passage of a bill.

   2. Ohio--Using the State Budget as Cover

      In June 2013, Governor John Kasich signed House Bill 59 into law. (25) In addition to including appropriations for the next two-year budget cycle, the 3747 page bill included provisions that did everything from change the minimum school year from 182 days to a minimum number of hours, allowed the cable company to disconnect service once a bill is fourteen days rather than forty-five days late, and determined the housing and care standards for snake owners. (26) Amongst numerous nonbudget related provisions were several provisions that placed additional regulations on those seeking and providing abortions. (27) It has become common practice in the Ohio legislature to tuck potentially controversial substantive law adoption or changes into the two-year budget bill in the hopes that they may go unnoticed until after passage. (28)

      Just like the Texas Constitution, the Ohio Constitution contains a provision that limits bills to a single subject. Article II, section (15), part D of the Ohio Constitution reads: "No bill shall contain more than one subject, which shall be clearly expressed in its title." (29) The many provisions, including those restricting abortion, which do not allocate money in the 2013 budget, clearly violate this rule. (30) The inclusion of these various provisions in a single bill allows logrolling to be used to guarantee passage of the budget as well as these nonbudget related state laws. (31) Once enacted into law, the only remedy is to challenge the bill in court. Two sets of groups have challenged the budget--the ACLU and the ACLU of Ohio have challenged that the parts of the bill restricting abortion violate the Ohio Constitution single subject rule, and the Ohio Civil Service Employees Association and Progress Ohio have challenged that the sections that authorize the privatization and selling of several prisons also violate the single subject rule. (32)

      To date no ruling has been made on the October 2013 ACLU suit. In considering the Ohio Civil Service Employees Association and ProgressOhio suit over the privatization of prisons, a Franklin County trial court dismissed the case. (33) However, the Franklin County Court of Appeals found that the legislature did in fact violate the single subject provision and has ordered the trial judge who dismissed the case to undertake an evidentiary hearing to dissect the budget bill line by line and strike out any provisions that violate the single subject rule. (34) Ohio Governor Kasich and other statewide officials are asking the state supreme court to overturn the appellate court decision arguing that it amounts to an unconstitutional judicial line-item veto. (35)

      The Ohio case illustrates the strategy of burying the adoption of a potentially unpopular or controversial policy into another unrelated bill regardless of the constitutionality. Public polling suggested that a majority of Ohio voters were not supportive of the abortion regulations attached to the budget bill, (36) and it is likely that a stand-alone bill may have been more difficult to pass.

   3. North Carolina--Sneaking It Past the Minority

      In North Carolina, where there is no constitutional requirement requiring single subject legislation, the July 2013 enactment of Senate Bill 353--originally called the "Motorcycle Safety Act" (37)--included provisions that abortion clinics in North Carolina must now meet standards similar to ambulatory surgical centers. (38) The bill also allows health care providers to opt out of performing an abortion if it is against their beliefs and stops government...