“The Single-Subject Rule: A State Constitutional Dilemma”

Richard Briffault has posted this draft on SSRN (forthcoming, Albany Law Review). Here is the abstract:

Critics of the proliferation of omnibus legislation in Congress have suggested that state constitutions offer a potential solution. 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. Many of these provisions date back to the early and mid-nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. Nor is the rule a relic from a bygone era. In the last two decades, state courts have used single-subject rules to invalidate laws dealing with, inter alia, firearms regulation, abortion, tort reform, immigration, local minimum wage laws, sex offenders, enhanced criminal penalties, and school vouchers.

Yet, despite having long been a part of the constitutional law of most states, 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.” Instead, persistent themes in the single-subject jurisprudence has been the inevitable “indeterminacy” of “subject” and disagreement over how deferential courts should be to legislatures.

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. But determining whether a law is the product of logrolling, or whether a provision should be treated as a rider, will often be difficult. And it is far from clear that logrolls and riders are as pernicious as proponents of more vigorous enforcement of the single-subject rule assume. The more aggressive use of the single-subject rule urged by advocates as a means of thwarting “legislative chicanery” and “backroom politics” could also undo the cooperation and compromise necessary to get difficult but important legislation enacted.

This article examines the history and purposes behind the single-subject rule; recent state supreme court cases interpreting it; and the arguments for reframing the rule more tightly around the prevention of logrolling or riders. It finds that although the justifications for the rule – improved legislative deliberation, transparency, and public accountability – are admirable goals the state constitutional rule has not been and is unlikely to be an effective means of achieving those ends.

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