That this year’s Legislature crammed all of its work into just 80 acts — the fewest of any legislative session in state history — is shocking. It is not that this year’s Legislature did less work than predecessors. It just packed all its work into too few bills.
Passing only 80 bills is evidence that the Legislature this year habitually violated a simple, traditional and invaluable provision of the Minnesota Constitution. The Constitution mandates that “No law shall embrace more than one subject, which shall be expressed in its title.”
This requirement ensures that individual legislators and watchful citizens can know what is in bills — what the Legislature is working on. And it allows individual legislators and citizens to rally support for pending bills, fix defects in those bills and have a clean shot at killing legislative initiatives that they believe to be mistaken.
This year’s Legislature has gotten bad press, with its failures usually blamed on the partisan split between the House and the Senate.
I think the blame should rest significantly on the thoughtless violation of the single-subject rule. This facilitated partisanship by taking decisions away from the membership of the Legislature as a whole and transferring control to legislative cliques that, at the end of the session, put together “omnibus committee bills” and rider-loaded appropriations bills.
These practices undermine the good policy of involving all legislators in decisionmaking. It is involvement that keeps legislators working thoughtfully as elected individuals, and not thoughtlessly as partisans.
The numbers tell the story on the multisubject violations.
This year’s legislative output of just 80 acts was the fewest in state history by a wide margin. For comparison, in 1973 (the year annual sessions began), an excellent DFL-controlled Legislature passed 783 separate acts. And, over the next 20 bienniums (1975 to 2013), the Legislature passed, on average, nearly three and a half times as many bills in each odd-year session as did this year’s body.
Back in 1969, an excellent conservative (GOP) Legislature divided its work into 1,150 acts!
To have all the work of the Legislature crammed into 80 acts is absurd — and destructive of the legislative process. No one — not legislators, the public, the media, agencies of government, affected businesses, cities, counties, school districts, public interest groups — could possibly spot and respond to the many provisions hidden in the huge bills cobbled together by the 2015 Legislature.
The sin of multisubject bills has grown steadily since the 1980s, so this year’s Legislature bears responsibility only for carrying the practice to shocking new heights. But it cannot escape that responsibility.
What has caused the plague of multisubject bills?
One cause is the new practice of enacting “omnibus committee bills.” Each of these bills, as the name suggests, addresses many issues. It has been dismaying for me to watch a solid case being made in a legislative committee for passing a straightforward bill with a single subject, only to have the bill held in the committee “for possible inclusion in the omnibus committee bill.”
Bills being considered by a committee should be approved — or killed — on the spot, in an open meeting, with everyone watching, and after the whole committee has had an opportunity to evaluate the single idea and to make perfecting amendments.
The omnibus committee bills are put together later, near the end of the session, by the partisan committee staff and the chair. That often puts a subtle partisan twist on some provisions and deprives the committee members of their rightful role of passing judgment on the strengths and weaknesses of the testimony they have just heard from witnesses and the insights they have heard from colleagues. And it limits the opportunity for perfecting amendments.
There is a place for an omnibus bill when the bill starts out as a “single-subject” bill for the general repair of some body of law (probate law or liquor control or timber management). But absent that kind of single-subject purpose, each legislative idea should be addressed in a single-subject bill and acted on when the case for and against it is fresh in the minds of committee members (and before any partisan twist has been added).
Even more serious than those omnibus committee bills is that the Legislature has begun loading extraneous provisions (called riders) onto must-pass appropriations measures.
Appropriations-bill riders have multiplied, with the practice of putting responsibility for each of the various appropriations bills in the hands of the same few legislators who have responsibility for substantive legislation in the area covered by the appropriation. It is too easy — and tempting — for those legislators to slip their favorite policy ideas into their appropriations bills as riders, rather than advancing those ideas as single-subject bills that might fail if each had to win passage on its own.
There is one more problem with multisubject bills. When bills contain thousands of words and a variety of policy initiatives, differences in House and Senate versions are inevitable. These bills must then be referred to conference committees that negotiate the differences between the two houses.
Conference committees — universally known to be the most secretive, undemocratic and highhanded part of legislative work — deliver their bills to the House and the Senate on a take-it-or-leave-it basis, with individual legislators denied any opportunity to amend or, because of adjournment deadlines, to reject the conference-committee deals. And watchful citizen groups that monitor the Legislature cannot effectively protest ill-advised provisions.
The main purpose behind the single-subject rule of the Minnesota Constitution is to prevent bad ideas from hiding in and hitchhiking on multisubject bills. That is what inevitably happens when a several-thousand-page, multisubject bill emerges from a conference committee.
It is not just the big appropriations bills that moved through conference committees this year. In total, a fourth of the 80 regular-session bills that made it to Gov. Mark Dayton’s desk were delivered to the House and the Senate by conference committees on a take-it-or-leave-it basis, unusually late in the session and with not one amendment permitted. Those 20 bills contained nearly all of the session’s significant public-policy work.
The Legislature should kick the habit of big, multisubject bills. But a cure for the multisubject disease may have to come from somewhere else, from an institution with an obligation to enforce the mandates of the Minnesota Constitution.
The Minnesota Supreme Court will almost certainly soon be given an opportunity to call a halt to the multisubject bill problem.
The interests that were hurt by multisubject bills this year should bring lawsuits asserting that the provision that hurts each was enacted in violation of the single-subject rule. That constitutional challenge is relatively inexpensive to pursue and there are many potential plaintiffs.
In previous cases over the years, the court has expressed its dismay at legislative passage of multisubject bills, but the court almost always has politely declined to have the judicial branch police the conduct of the legislative branch. Usually the court has said, “next time.”
This is next time.
The court has never been confronted with multiple petitioners, and it has never been confronted with the kind of gross multisubject violations that this year’s Legislature committed. This time the Supreme Court should announce: “ We are holding invalid these multisubject provisions and — as of now — calling a halt to this destructive legislative practice.”
Jack Davies, of Minneapolis, is a former appellate judge and state senator.