Drafting proper short bill titles: do states have the answer?

• Author: Jones, Brian Christopher

INTRODUCTION

Short bill titles at the federal and state level have historically been used as legal reference points for legislation. Over the years, however, many of these titles have changed their function and now act as much more than referential designations. This has never been more apparent than on the federal level, where many titles have extensive policy implications, are politically and emotionally charged, and thus appear to be used to influence rather than explain what a law does. Many federal bills (and subsequently acts) (1) are now increasingly adorned with titles containing evocative language, seemingly designed to be used for political advantage and serve as benchmarks of governmental accomplishment, however transient either may be. This presents problems for federal titles, as they are not only used as political devices while shepherding a bill through Congress, but many of these titles ultimately end up in the statute book, inscribed as law. The legal aspects of short titles seem to have been lost on many recent Congresses, who unabashedly continue the evocative short bill title pattern. As will be seen below, no effective constraints currently exist for federal short bill titles, but given the current situation, they are sorely needed.

In contrast, many states have short title policies in place for curtailing the practices employed at the federal level. They appear to value the inherently legal aspect of short titles, and discourage lawmakers and others from using such titles as influential devices. This Article will briefly demonstrate how the federal short title situation spiraled out of control. It will also look at some of the policy aspects of current evocative bill titles. The Article then examines the dearth of federal bill drafting policies in relation to short titles by analyzing the House Drafting Manual. Next, and most importantly, the Article examines state bill drafting manuals in order to ascertain whether or not they could provide any assistance or guidance to federal policies regarding short titles. Evidence from these state drafting manuals demonstrates that there is much Congress could learn from such practices.

Though the statute book has historically been immune to the use of overtly politicized language, such is no longer the case for the Federal Code, where overtly politicized language has entered the statute book largely through the short titles of acts. The current short title situation in Congress was not always the case. An examination of some major pieces of legislation throughout American history reveals that many of the nation's most important legislative accomplishments were graced with very bland short titles designed to do little more than summarize the bill's contents. The first-ever session of Congress passed the Judiciary Act of 1789, which constructed the entire federal court system, yet it garnered only a modest title. (2) Additional examples of landmark legislation with simple, descriptive titles include the 1913 Federal Reserve Act; (3) the 1935 Social Security Act; (4) the 1961 Peace Corps Act; (5) the 1964 Civil Rights Act; (6) and the Voting Rights Act of 1965. (7) The above acts are some of the most important and historically controversial pieces of legislation Congress has ever produced. Put simply, they are innocuously titled bills that easily inform lawmakers and the public about what the bill sets out to accomplish.

In contrast, an examination of some noteworthy laws over the past quarter century shows a drastic difference in naming style. Some bills, especially important ones, are cloaked in evocative language, seemingly designed to garner sympathy, support, and political advantage. Many of these titles appear to be crafted to provide cogent policy statements rather than offer information on what the bill entails. Prominent examples from the 1990s are the Judicial Improvements Act of 1990; (8) the Torture Victim Protection Act of 1991; (9) the Brady Handgun Violence Prevention Act; (10) the Religious Freedom Restoration Act of 1993; (11) the Congressional Accountability Act of 1995; (12) the Antiterrorism and Effective Death Penalty Act of 1996; (13) the Personal Responsibility and Work Opportunity Reconciliation Act of 1996; (14) the Small Business Job Protection Act of 1996; (15) the Defense of Marriage Act; (16) and the Pam Lychner Sexual Offender Tracking and identification Act of 1996. (17)

Yet the past decade provided perhaps the most evocatively named laws the Congress has ever bequeathed to the statute book, with such titles as the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act; (18) the No Child Left Behind Act of 2001; (19) the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act; (20) the Unborn Victims of Violence Act 2004; (21) the Prison Rape Elimination Act of 2003; (22) the Partial-Birth Abortion Ban Act of 2003; (23) the Adam Walsh Child Protection and Safety Act of 2006; (24) and the Emergency Economic Stabilization Act of 2008. (25)

The 111th Congress continued the trend, providing policy-saturated names to laws such as the Lilly Ledbetter Fair Pay Act of 2009; (26) the American Recovery and Reinvestment Act of 2009; (27) the Serve America Act; (28) the Helping Families Save Their Homes Act of 2009; (29) the Credit Card Accountability Responsibility and Disclosure (Credit CARD) Act of 2009; (30) the Patient Protection and Affordable Care Act; (31) and the Dodd-Frank Wall Street Reform and Consumer Protection Act. (32) The recent trend in evocative naming is therefore not abating, and only appears to be gaining in importance at the federal level.

A couple of individuals in the popular press have noticed the stylistic transition that Congressional bill titles have experienced in recent years. Former New York Times wordsmith William Satire has deemed the titling of bills in Congress "acronymania," and he uses the USA PATRIOT Act as the most prominent example. (33) Jess Bravin from the Wall Street Journal recently penned an article complimenting Satire's hypothesis, and further notes that "[e]ven when they can't coin an acronym, legislators use loaded language that raises the stakes for voting no." (34) it appears that some are irritated with the practice, though. Bravin cites a couple of lawmakers who are against such practices. He also notes that former President George W. Bush has acknowledged, and regretted, that the name of the USA PATRIOT Act implied that those who voted against the measure were unpatriotic. (35)

As can be seen from the contemporary examples above, problems with the language of federal short bill titles stem from the fact that many are overtly political messages which usually include overly aspirational and/or tendentious language. This language is exceptionally problematic for bills, as many short titles imply that measures will be successful (for example, that they will "prevent" certain actions or "protect" certain populations) or contain various subjective characteristics (such as "responsibility" or "accountability"). While this type of language makes for effective political posturing, while putting undue pressure on lawmakers, its use in regard to law is both misleading and deceptive, as it is nearly impossible to predict how effective particular laws may be at accomplishing what they set out to do. (36) Additionally, inscribing laws with inherently subjective characteristics, such as "responsibility" or "accountability" is intrinsically misleading and deceptive, as these words mean different things to different people. (37) While some states have policies against misleading and deceptive language in short titles, the federal government has no such standard.

1. POLICY IMPLICATIONS: SOME RATIONALES FOR REFORM

   Barring the couple of media articles mentioned above, both the academic and legal communities have neglected short bill titles and the legal and political consequences of employing evocative language in titles. A combination of my own research and evidence gathered from interviews with legislators, staffers, and journalists points to a number of policy implications and concerns that lawmakers need to take into consideration when constructing short bill titles. My research primarily focused on the importance of short bill titles to those who frequently interact with legislation. Thus, those on the legislative side (legislators and staffers) and those who write about legislation (journalists) were consulted. Four major findings from my research are enlightening and somewhat disconcerting, and explain why legislators may want to consider reforming current titling practices. The four findings are: (1) that short titles no longer serve merely as referential points; (2) that short titles could be affecting whether or not a measure becomes law; (3) that some insiders are not content with the language being used in short titles; and (4) that short titles are believed to be an important aspect of the lawmaking process.

   First, there was a consensus among my interviewees that short bill titles are no longer merely used for referential purposes, but have multiple purposes. An overwhelming number of interviewees stated this to be the case. This perception was supported by a Congressman who stated that with "almost every bill, they try to come up with some type of motherhood or apple pie title to it, so that everybody will vote for it." (38) And many other interviewees seemingly agreed with him. Some were concerned that some titles gave the wrong impression of what was inside the bill, while others noted that such titles were concocted to play well in media circles, serve branding or marketing purposes, or were sometimes used to gain a political advantage. (39)

   A variety of perspectives were displayed from media interviewees, with some suggesting bill titles were primarily...