Illegal Law-Making

The supplemental budget bill without question violates the Minnesota constitution’s requirement that “no law shall embrace more than one subject”

The laws listed in the accompanying table (page 42) are just a sampling of ten laws passed by the Minnesota legislature and signed by Governor Dayton in 2016. What do these laws all have in common? They were passed together in a single supplemental omnibus budget bill that spanned 599 pages.

Other than that, very little connects the subject matter each law addresses. The laws run the gamut of state policy and finance, moving from higher education to agriculture to safety standards to municipal governance to electricity regulation to economic development to occupational licensing to taxes to family law and then to education. And that is just a sample.

By touching so many different subjects, the supplemental budget bill without question violates the Minnesota constitution’s requirement that “no law shall embrace more than one subject.” The fact that state lawmakers passed a bill that so clearly violates the constitution calls attention to the importance of the single-subject rule, lack of legislative compliance, and poor judicial enforcement.

PROTECTS AGAINST LOGROLLING

The single-subject rule aims to protect citizens from the legislative practice of logrolling, a practice where unrelated bills are bundled together to gain enough support to pass when the bills could not gain majority support individually.

The limitation on logrolling is one of many checks and balances the state constitution built into the structure of our government to curb abuses. Properly enforced, the rule guards against legislators tucking unpopular minority special interests into an otherwise popular or necessary bill, which, in turn, helps guarantee the laws passed by the Legislature reflect the majority view— the will of the people.

The rule also increases the transparency and orderliness of the lawmaking process. A law with a single subject is much easier to understand, manage and debate than a large omnibus bill with disparate subject matter.

A LITTLE HISTORY

The term logrolling derives from the American frontier experience of neighbors helping each other to roll logs to clear land for farming. But the effort to curb logrolling long predates America’s westward expansion. The earliest known effort dates back to 98 B.C. when the Romans enacted the Lex Cæcilia Didia, a law forbidding the passage of laws with unrelated provisions.

American states did not begin including single-subject rules in their constitutions until the mid-nineteenth century, with New Jersey being the first to adopt in 1844. Today, over forty states have such a rule. Minnesota’s founders included the single-subject rule in the state constitution when it was ratified in 1858. During Minnesota’s constitutional convention, Justice Bradley Meeker specifically referenced “logrolling” as the reason for the rule.

In 1875, not too long after the constitution was ratified, the Minnesota Supreme Court wrote an opinion explaining the purpose of the single-subject rule:

The well-known object of [the single-subject rule] was to secure to every distinct measure of legislation a separate consideration and decision, dependent solely upon its individual merits, by prohibiting the fraudulent insertion therein of matters wholly foreign, and in no way related to or connected with its subject, and by preventing the combination of different measures, dissimilar in character, purposes and objects, but united together with the sole view, by this means, of compelling the requisite support to secure their passage.

BUDGET BILL IS A CASE IN POINT

Despite a clear intent to check the legislative process—an intent expressed by the drafters of the constitution and acknowledged by the courts—the single-subject rule is often ignored by the Legislature. The 2016 omnibus supplemental budget bill is the latest example and possibly the most egregious.

On the House Republican side, the budget bill started as three distinct
bills. One bill focused on education. The second focused on agriculture, environment, natural resources, jobs, and energy. The third focused on health and human services, state government, and public safety. After the House passed those three bills, the DFL-controlled Senate amended the education bill to include all three bills, creating the many headed omnibus budget bill.

The Senate’s omnibus version of the bill represents exactly what the Minnesota’s founders aimed to avoid with the single-subject rule. A substantial number of provisions in the bill could never have gained majority support in at least one legislative body. For instance, the grant program for minority owned businesses was part of Governor Dayton’s broader package of policies to reduce racial disparities, a strategy Republicans in the House opposed. Provision of an income tax subtraction for military pensions failed to get a hearing in the DFL-controlled Senate. The two measures only passed because they were bound together, which is clearly what the single-subject rule was intended to stop.

In addition, the process used to pass the bill was less transparent, allowed for less debate, and more difficult to track. Legislators complained they didn’t have time to even read the bill. As Session Daily reported, “With less than three hours to go, Rep. Rick Hansen (DFL-South St. Paul) said he was just over 100 pages into the bill looking for ‘surprises’ and asked if anyone else had read the whole thing.” Without question, the omnibus nature of the bill limited debate. Moreover, anyone trying to track the bill’s passage was presented with a far more difficult task. Summaries of the bill spanned multiple documents and spreadsheets.

NONCOMPLIANCE IS UNDERSTANDABLE

As an outsider, it’s easy to criticize the legislative process that created the omnibus budget bill. However, lawmakers always face great difficulties in coming to agreement across party lines, especially within constitutionally set deadlines. It’s only natural that they gravitate towards opportunities that lay out an easier path to agreement.

JUDICIARY FINDS IT DIFFICULT TO ENFORCE

Perhaps the main reason lawmakers are bending and breaking the single-subject rule more these days is because courts are letting them get away with it. Courts have always struggled with enforcing the rule because it is so hard to define what in fact is a “subject.”

To support the separation of powers, courts also show deference to legislative determinations and do their best to avoid striking down legislation. As the Minnesota Supreme Court wrote in 1875, the single-subject rule “was not intended, however, nor should it be so construed as to embarrass legislation by making laws unnecessarily restrictive in their scope and operation, and multiplying their number.” So, out of respect for the legislature, courts have long found it difficult to apply the single-subject rule.

COURTS REDISCOVER THE RULE

The Minnesota Supreme Court in the 1980s began to grow concerned that it was being “far too lax” and failing to enforce the constitution’s single-subject rule. In the case marking the shift in the court’s position on the rule, Justice Lawrence Yetka powerfully stated the Court’s role: “The courts of this nation and of the state were uniquely given the authority to prohibit infringements by either the legislative or executive branch of the government of constitutional rights vested in the people and denied those branches of the government. If we do not act to protect the public, who will?”

At the time, the Court determined the Legislature needed some notice that the rule would be enforced and so they refused to apply the rule. Instead, they warned that, if the Legislature passed a law like the one at issue in the case in the future, “we will not hesitate to strike it down regardless of the consequences to the legislature, the public, or the courts generally.” Since then, the Court has struck down a few laws after finding a violation of the single-subject rule.

The current application of the single-subject rule remains exceedingly deferential.

THE SUPREME COURT IS IN PART TO BLAME

While successful challenges in Minnesota have now revived the single-subject rule and put the legislature on notice, the Court has yet to provide a clear definition for when a bill violates the rule. The subject matter of a law must be connected by only a “mere filament,” which does not provide much clarity. This lack of clarity allows the Legislature to more freely pass laws that violate the single-subject rule. Lawmakers know the chances of a lawsuit are slim because potential litigants cannot challenge a law with great confidence.

Recently, the Minnesota Supreme Court stopped a single-subject rule case that could have helped clarify the rule. The case involved a challenge to provisions authorizing the construction of the new Senate office buildingbecause the provisions were included in a tax bill. The challenge, however was ended when the Court upheld an order requiring the challenger to post an $11 million surety bond to cover any costs tied to delaying construction.

The failure to allow the case to move forward was a surprising showing of incomplete legal analysis on the part of the Court. The order to uphold the surety bond completely missed the fact that the Legislature passed a bill to amend the surety bond statute in 1993 in direct response to a nearly identical situation. The bill required courts to consider whether a case presented an important constitutional question before requiring a surety bond. In effect, the 1993 Legislature overruled, as Rep. Howard Orenstein described it at the time, the “inherent unfairness” of how the Court required a $30 million surety bond for a citizen to mount a constitutional challenge.

Two decades later, the Court ignored this history. Whether or not the challenge to the Senate Office Building would have succeeded, it gave the Court the chance to more clearly define the single-subject rule.

By failing to take this opportunity, the Court is, in part, responsible for any ongoing violations.

As a result, the people of Minnesota must wait for someone to file another lawsuit to gain more solid protection under the rule. Maybe the omnibus supplemental budget bill will trigger such a challenge.