Gilbert: Logrolling and Germaneness?

Here is a guest post from Mike Gilbert of U Va:

The single subject rule strikes again.  This week the Supreme Court of Oklahoma invalidated the state’s Comprehensive Lawsuit Reform Act of 2009 for violating the state constitution, which reads in pertinent part:  “Every act of the Legislature shall embrace but  one subject, which shall be clearly expressed in its title.”  The Act addressed Medicaid refunds, seat belts, physician testimony in asbestos litigation, liability for livestock, and the conduct of school district representatives, among other topics.  “[W]e will not sit by and ignore violations of our Constitution,” the Court declared.  It struck down the Act by a vote of 7 to 2.
The opinion illustrates the fundamental flaw in single subject jurisprudence:  the test for determining compliance with the rule does not systematically further the rule’s purpose.  The principal objective of the rule is to prevent logrolling, i.e., vote trading.  The Court wrote, “the constitutional infirmity of logrolling . . . is the basis of this opinion.”  It turns out logrolling in legislatures may not be so bad (see here for a discussion), but ignore that and take the purpose as given.  To determine whether logrolling occurred, the Court used (as most do) the “germaneness” test, asking whether the Act’s components were “germane” to one another or instead reflected “unrelated provisions” lacking “a common, closely akin theme or purpose.”  That approach cannot reliably identify logrolls.  It upholds acts comprising topically related provisions–corporate taxes, farm subsidies–that resulted from logrolling (no individual provisions would have passed alone).  And it invalidates acts comprising disparate provisions that did not involve logrolling (every provision would have passed alone).
Bob Cooter and I proposed a solution to this problem.  We suggested that judges focus not on the topical similarity of the provisions of an act but on whether voters (or legislators) can make independent judgments about them.  If most can decide how to vote on provision A without knowing whether B will become law and vice versa, then A and B are separate subjects and cannot be combined in one act.  Otherwise they can.  We believe this approach is intuitive, and we prove that it would prevent logrolling.  So unlike the traditional approach, ours would further the purpose of the rule.  (Hasen and Matsusaka critique our proposal here, and we reply here.)
Alas, the courts have ignored us, and we get opinions like this.  It condemns logrolling, it applies the test, it strikes down the act, and it provides no reason–no theory, no evidence–to believe logrolling took place.

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