Editors note: The following commentary appeared on thedailyrecord.com on December 28, 2017.
As I read a recent article on the tax bill approved by the U.S. Congress, one line in particular caught my attention. “Drilling would be allowed in the Arctic National Wildlife Refuge.”
The bill’s other provisions are related to taxes, deductions, exemptions and credits. But the drilling provision, on its face, has nothing to do with a taxation bill. Such unrelated amendments, or “riders,” are frequently found in federal legislation and are a threat to the public’s trust in government. Government transparency is clouded by adding these unrelated amendments which often don’t get a hearing. Although riders are a common occurrence in federal legislation, they are quite rare in most states and local governments.
Forty-one states, including Maryland, have a constitutionally imposed or implied one-subject rule for legislation. The one-subject rule requires a bill to address or contain a single subject. In most states, like Maryland, this extends to a one-subject title requirement, which is intended to avoid misleading the public about the content of a bill. In the United States, these rules date back to the 19th century, as citizens sought to prevent their elected officials from adopting unsavory proposals as part of more popular legislation.
The Maryland Court of Appeals discussed the intended policy of Article III, section 29 in 1946 in the case Neuenschwander v. Washington Suburban Sanitary Commission:
“In this way the people of the State were frequently inflicted with pernicious legislation. Very often the foreign matters were incorporated into the law stealthily, especially during the haste and confusion that always prevailed near the close of the session, and in this way the statute books contained many enactments which few of the members of the Legislature knew anything about.”
There are several positive outcomes when the single-subject rule is in place.
First, transparency is increased. When unrelated provisions are added to a bill, it becomes difficult for either the public or legislators to understand the scope of the bill and its impact or the motivations of the legislators involved. This is an enormous problem at the federal level, where obscure unrelated provisions are often added, particularly to appropriations bills, in order to secure votes for the passage of the original bill.
Second, a single-subject rule prevents legislators from having to decide how to vote on a bill if both agreeable and disagreeable provisions are present. Instead, the legislator is free to vote for or against a bill based on its merits, without muddying the issue with unrelated provisions. In Congress, members who are committed to voting for a bill may have to accept an undesirable amendment in order for the bill to pass, or vote against a bill they support because of a provision they oppose.
Finally, the rule protects the governor’s veto power, which allows the state to maintain checks and balances. When more than one subject is included in a bill, the executive may be forced to veto a bill that on the whole has a positive impact, or in the alternative, allow a bill to become law that contains a disagreeable provision.
While the Congress does not have a single-subject rule, for some time there was a check on riders and unrelated provisions through the president’s line-item veto power. However, the Supreme Court struck down this power in the 1998 case Clinton v. City of New York. Since that decision, it has become even more difficult to constrain omnibus congressional legislation, which has contributed to a loss in faith and trust in the government by Americans.
The recent passage of the “income tax reform” that includes the authorization of drilling in the Arctic National Wildlife Refuge is just one example of why American voters are rightfully more skeptical about the intentions of legislative activity at all levels of government.
With all the talk about transparency in government perhaps it is time for Congress to alter its procedures and consider a single-subject rule. The chances of adopting it through the traditional method of a constitutional amendment are lengthy and challenging.
But if our congressional leaders are serious about reform and restoring American’s trust in the legislative process, taking it upon themselves to adopt the single-subject rule would be a boon to transparency and help restore faith in government.
Donald C. Fry is president and CEO of the Greater Baltimore Committee. He is a frequent contributor to The Daily Record.