THE SINGLE-SUBJECT RULE: A STATE CONSTITUTIONAL DILEMMA.

• Author: Briffault, Richard

1. INTRODUCTION

   Critics of the proliferation of omnibus legislation in Congress have pointed to the constitutions of the American states as providing an alternative, and potentially superior, model for lawmaking. (1) Forty-three state constitutions include some sort of "single-subject" rule, that is, the requirement that each act of the legislature be limited to a single subject. (2) Many of these provisions date back to the second quarter of the nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. (3) Nor is the rule a relic from a bygone era; one recent study found the rule at stake in 102 cases in 2016 alone. (4) Many of these decisions have involved controversial, hot-button issues. In the last two decades, state courts have used single-subject rules to invalidate laws dealing with, inter alia, firearms regulation, (5) abortion, (6) tort reform, (7) immigration, (8) local minimum wage laws, (9) sex offenders, (10) enhanced criminal penalties, (11) and school vouchers. (12)

   Yet, despite having long been a part of the constitutional law of most states, (13) the single-subject rule is deeply problematic. Courts and commentators have been unable to come up with a clear and consistent definition of what constitutes a "single subject." (14) Instead, a persistent theme in the single-subject jurisprudence has been the inevitable "indeterminacy" of "subject" (15) and a recognition that whether a measure consists of one subject or many will frequently be "in the eye of the beholder." (16) On the one hand, as the Michigan Supreme Court once explained, "[t]here is virtually no statute that could not be subdivided and enacted as several bills." (17) On the other hand, as an older Pennsylvania Supreme Court case put it, "no two subjects are so wide apart that they may not be brought into a common focus, if the point of view be carried back far enough." (18)

   In practice, the meaning and enforcement of the rule has usually turned on how deferential the court thinks it ought to be to the legislature or, conversely, how much it sees the combination of topics in a new law as reflecting the legislature's defiance of the norms of proper law-making. Over the past century and a half, state courts for the most part appear to have given a liberal interpretation to the concept of "single subject" and have rejected most single-subject challenges to state legislation. (19) Even with the uptick in findings of violations in recent decades, (20) the meaning of the rule remains murky, with the case law consisting of a mix of unpredictable "I know it when I see it" decisions. (21)

   Due to the slipperiness of "subject," many analyses have focused on what are regularly said to be the primary purposes of the rule--the prevention of legislative logrolling and riders, and the promotion of a more orderly and informed legislative process--and have called for reframing the enforcement of the rule around the advancement of these goals. (22) But determining whether a law is the product of logrolling, or whether a provision should be treated as a rider, will often be difficult. (23) Moreover, it is far from clear that logrolls and riders are as pernicious as proponents of more vigorous enforcement of the single-subject rule assume. (24) So, too, the more aggressive use of the single-subject rule urged by advocates as a means of thwarting "legislative chicanery" (25) and "backroom politics" (26) could also undo the cooperation and compromise necessary to get difficult but important legislation enacted.

   Part II of this Article briefly reviews the history and purposes behind the single-subject rule. Part III examines how state courts have applied the single-subject rule, with particular attention to some recent state supreme court single-subject cases interpreting the rule. Part IV focuses on arguments for reframing enforcement of the rule more tightly around its purposes, particularly the goals of preventing logrolling or riders. Part V concludes by reflecting on the significance of the failure of the rule to achieve its goal of reforming state legislative processes.

2. THE HISTORY AND PURPOSES OF THE SINGLE-SUBJECT RULE

   1. History

      Scholars have traced concerns about omnibus legislation and the norm of requiring laws to be limited to a single subject to the Lex Cecilia Didia of the Roman Republic. (27) Early instances of single-subject requirements in the American setting include a complaint by the Privy Council about the practices of the legislature of the Massachusetts Bay Colony, (28) and a 1702 directive of Queen Anne to the royal governor of the New Jersey colony against the adoption of laws "intermixing in one... Act" unrelated subjects. (29) The constitutions--federal and state--adopted after the Revolution did not include a single-subject requirement. (30) But that soon changed. The early nineteenth century witnessed growing popular discontent with the performance of state legislatures, including such abuses as "[l]ast-minute consideration of important measures, logrolling, mixing substantive provisions in omnibus bills, low visibility and hasty enactment of important, and sometimes corrupt, legislation, and the attachment of unrelated provisions in the amendment process...." (31) In response, the states amended their constitutions to impose new constraints on their legislatures. (32) Some of these were substantive, such as limits on state spending, lending, and borrowing intended to prevent the practices that got many states into fiscal difficulties in the 1830s and 1840s. (33) Others were procedural, and were intended to promote legislative accountability and deliberation. (34) These included, inter alia, requirements that votes be reflected in the legislature's journal; that no bill be altered during the legislative process so as to change its legislative purpose; that bills must "age" a certain number of days before they can be voted on; that each bill have a title clearly disclosing its subject--and that each bill be limited to a single subject. (35)

      Illinois was the first to adopt a single-subject requirement when it amended its constitution in 1818 to direct that bills appropriating salaries for government officials be limited to that subject. (36) Michigan in 1843 limited laws authorizing the borrowing of money or the issuance of state stock to a single object. (37) In 1844, New Jersey adopted the first general single-subject requirement. (38) Thereafter, the idea spread quickly. Today, forty-three states, including every state that entered the Union after 1844, include some version of the single-subject rule in their constitutions, almost always in the same sentence as the clear-title requirement. (39)

      There are some variations across the states constitutions in the language and scope of the rule. Two states apply the requirement only to appropriations bills, and another two states limit it to bills adopting special or local laws. (40) Conversely, a few states exempt appropriations bills from the single-subject requirement, (41) and some states exclude bills "for the codification, revision or rearrangement of laws." (42) A handful of states use the term "object" rather than "subject," although that does not appear to have had any legal significance. (43) Notwithstanding these variations, some version of the single-subject requirement is widespread, with roughly threequarters of state legislatures subject to the rule for most enactments. (44) It is probably the "most significant, and therefore most litigated procedural requirement" in state constitutions. (45) The language of the Ohio Constitution is typical: "No bill shall contain more than one subject, which shall be clearly expressed in its title." (46)

   2. Purposes

      The purposes of the single-subject rule are briefly stated and often repeated: the prevention of logrolling and riders; orderly legislative procedure that promotes informed legislative decision-making and public accountability; (47) and, less frequently, the protection of the governor's veto power. (48) Logrolling and riders, in particular, have been most frequently cited as the "evils" against which the single-subject rule is aimed. (49) The two terms are sometimes blurred together, (50) but they refer to somewhat different forms of legislative action. "Logrolling" is used to describe what occurs when two or more separate proposals, none of which is able to command majority support, are combined so that the minorities behind each measure aggregate to a majority capable of passing the resulting bill. (51) A "rider" is a provision which could not pass on its own but is then attached to a bill considered likely to pass and so "rides" on that more popular measure to enactment. (52)

      Both logrolling and riders have been sharply criticized because they lead to the adoption of measures that do not enjoy true majority support within the legislature, and, to the extent that legislators accurately represent the views of their constituents, within the state as a whole. (53) Some courts have also emphasized the degree to which logrolls and riders interfere with the freedom of legislators by presenting them with the "Hobson's choice" of being "forced to assent to an unfavorable provision to secure passage of a favorable one, or conversely, forced to vote against a favorable provision to ensure that an unfavorable provision is not enacted." (54)

      Beyond the prevention of logrolling and riders, many courts and commentators cite improved legislative deliberation, greater transparency, and the resulting greater accountability to the public as purposes of the single-subject rule. (55) As the Illinois Supreme Court recently explained, one reason for the single-subject rule "is to promote an orderly legislative process. 'By limiting each bill to a single subject, the issues presented by each bill can be better grasped and more intelligently discussed.'" (56) The Missouri...