Utah’s Rep. Mia Love has introduced legislation that would require Congress to consider bills that contain only one subject. Her intention is to try to bring “Utah’s values” to Washington. “Let’s bring a little bit of what works in Utah to Washington,” she says. Utah’s constitution contains a provision that requires exactly that.
I’m all for bringing Utah values to Washington, but there are serious problems with Love’s approach. She worries that it will be opposed by those making “backroom deals” to slip unrelated provisions into gargantuan policy and spending bills. More likely her bill will be ignored, and if by some syzygy of events it were to pass, it would have no effect.
To begin with, it is a bill, not a constitutional amendment. It is an axiom of parliamentary law and procedure that no legislature can bind a successor. In other words, if Congress were to pass Love’s bill, and the president were to sign it, the next Congress could simply ignore it. Legislation passed contravening its provisions would be valid.
Consider funding for Planned Parenthood. Money for Planned Parenthood is authorized by Title X of the Public Health Service Act of 1970. But that authorization expired years ago and hasn’t been renewed since 1985. That’s right. Appropriating money for Planned Parenthood has been illegal for the last 30 years. But Congress continues to do it, and the courts simply say that if Congress thinks appropriating that money is legal, it must be.
Love’s bill would create a “cause of action,” allowing individuals to bring suit against any legislation passed in violation of the One Subject At A Time Act, but there is no reason to think that the courts would be more likely to allow one Congress to bind another than they are now.
A second problem for the Love bill is that the rules of the House already contain provisions against non-germane amendments. (The Senate handles germaneness differently, as explained below.) So one could argue that her bill is unnecessary. Perhaps the “Utah Way” can persuade Love’s colleagues to abide by their own rules, but a law isn’t going to do it.
Thirdly, the insurmountable problem in the House lies in the difference between rules and “rules.” Rules are the general procedures adopted at the beginning of each Congress for the running of the House and the consideration of legislative proposals, including bills. “Rules” are quite a different matter.
“Rules” are issued by the Rules Committee, and they provide for the consideration on the floor of specific pieces of legislation. When a bill is reported from committee, before it can be considered on the floor, it must go to the Rules Committee, which is totally controlled by the Speaker of the House, and get a “rule.” That “rule” (in form it is a House Resolution) will provide that, upon adoption of the resolution, it will be in order for the bill manager to call up the bill for consideration. The “rule” will specify how long the debate will last, what amendments are in order, who will control the time, and other things. It may (and usually does) also, and this is where it affects Love’s proposal, waive points of order against the bill.
For example, it is against the rules of the House to consider a bill as soon as it is reported from committee. It must “lie over” for three days before coming to the floor. Otherwise, a point of order would lie against the bill. That is to give members time to read it, a perfectly logical and laudatory purpose. But if the Speaker wants to bring that bill up before the expiration of three days (or even three minutes!), he will see to it that the “rule” for that bill waives points of order. He (or she) can do the same thing for other prohibited provisions of the rules, including the rule that amendments must be germane.
A “rule” can be most powerful. It can make black white and non-germane germane. If a bill violates the Budget Act, the “rule” can simply say that the bill does not violate the Budget Act. (This, by the way, as I have written here before, is why a Balanced Budget Amendment to the Constitution is a will-o’-the wisp.)
A “rule” has to be adopted, of course, and if Love can cobble together a majority of the House to defeat the “rule,” then the “rule” (I’m as tired of those quotation marks as you are, if, by some chance you have read this far, but they remain necessary to avoid confusion) can be amended, maybe by striking the waiver of points of order.
But votes on “rules” are Leadership Votes, and your average Member cannot go against party Leadership more than once or twice a session. A member that routinely votes against Leadership finds himself or herself without support for anything that Member wants to do, and quite possibly without any committee assignment. It just doesn’t happen.
In the Senate, thing are a little more complicated, but the result is the same. There is no such thing as a “rule” in the Senate. What there is a “unanimous consent agreement” (and that’s the only time I’m putting quotes around it). A UC contains the same kinds of instructions as a “rule,” providing for time management, amendments, etc. As its name implies, a UC requires consent of every member of the Senate, meaning that Love’s Senate colleague, Mike Lee, could object, thus blocking the UC until it is modified to his satisfaction. Eventually, however, the Majority Leader would stop asking for unanimous consent, and would “move” to take up the bill by majority vote. That’s a debatable motion, of course, and could be filibustered. But opposing Leadership in the Senate has the same effect as it does in the House. Just ask Ted Cruz.
I can’t refrain from noting that unanimous consent agreements in the Senate usually contain the following phrase, “and that the agreement be in the usual form.” That language means that amendments to the bill affected have to be germane. Otherwise, the Senate has no rule requiring germaneness. But even then, “germaneness” means what the Senators say it means. Suppose Senator Lee proposes an amendment to the Military Construction Appropriation de-funding Planned Parenthood. That amendment would be non-germane under the “usual form,” and would be subject to a point of order. The chair would no doubt uphold the point of order, but if Senator Lee has the votes, he can appeal the decision of the chair and make his amendment “germane.”
So, where does that leave us? Applauding Love’s intentions, but profoundly skeptical of their effect. Majoritarian bodies eventually work their will. They will not, cannot, be bound by rules or “rules” that are not supported by the majority. In particular, one Congress cannot bind its successors. Possibly a Constitutional Amendment would do the job, but even there I’m dubious. Love will have more success, I suspect, importing Utah Values to Washington by example than by her One-Subject-At-A-Time proposal.