In recent years, there has been increasing chatter about constitutional amendments on subjects ranging from balanced budgets to term limits. Here is another possible amendment — or at least a rule Congress can consider for itself: a federal single-subject rule. As is already the case in many states, such a rule would limit each piece of federal legislation to one, and only one, subject. Call it the anti-omnibus rule.
It may sound obscure, but the single-subject rule actually has deep historical roots in American law, and in fact traces its origins all the way back to the Romans. Most states have some version of a single-subject law, and many, including New York, have enshrined it as part of their state constitutions.
The single-subject rule was intended to restrain lawmakers and to protect against the unsavory practice of “logrolling” — similar to earmarking — whereby legislators insert less popular measures and riders into a larger, more popular bill. It is another example of how our forefathers had a well-founded suspicion of politicians’ ambitions and their tendency toward horse-trading and sleight of hand at the citizenry’s expense. In many cases, one-subject rules have curtailed at the state and local level the kind of legislation that Congress often now produces: massive unreadable bills dealing with innumerable subjects and permitting special consideration for favored constituents.
The rule has seen a renaissance in recent years, with more lawsuits citing it and several states’ supreme courts relying upon it to strike down high-profile legislation. My law firm is currently representing a client who sued the New York City Council for violating the rule when it amended the City’s Smoke Free Air Act (SFAA) to ban e-cigarettes. The SFAA was passed to protect people in public places from second-hand smoke emitted from tobacco cigarettes, not water vapor from electronic cigarettes, thus introducing a new subject into the legislation.
At the federal level, the scope and breadth of congressional legislation is unlikely to contract without a structural change. Requiring lawmakers to pass free-standing laws that deal with just one subject—as is required in many states—rather than introducing new topics through amendments of old laws or passing legislation dealing with multiple subjects, would impose some much-needed discipline.
It would also bring clarity and transparency to the legislative process. Transparency, in particular, is something that politicians often pay lip service to, only to frustrate it once in office and subject to scrutiny. A federal single subject rule would also end the practice of Congress passing bills, like the Affordable Care Act, that few people have read, that are far too complicated for anyone to understand, and that are filled with special interest concessions on varying topics. A federal single subject rule, like many states’ rules, should also require that a statute’s title clearly define the subject to avoid misleading the public about its contents.
The previously popular mechanism for dealing with riders and omnibus bills at the federal level was the president’s line-item veto power, which the Supreme Court struck down in the 1998 case, Clinton v. City of New York. This is why a constitutional amendment would be required. Additionally, the one subject rule undoubtedly suffers from some deficiencies, including uncertainty over what constitutes a single subject. This would invite a whole new sphere of litigation in federal courts.
All of that said, constraints on Congress are desperately needed. A federal single-subject rule, though perhaps imperfect, could go a long way toward imposing them.
Brett Joshpe is principal of Joshpe Law Group LLP, a New York City law firm that handles corporate and litigation matters and also represents whistleblowers. He is also co-author of the book “Why You’re Wrong About the Right.” Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions for editorials, available at this link.
