Single Subject = Single Stupidity

New House Rule Designed To Cause Dysfunction

Mencken: Simple, Neat, and Wrong

The House Rules package passed last night is potentially a disaster: it seems specifically created to make it impossible for the federal government to pay its debts, although there are (second-best) ways around it that President Biden will undoubtedly use.

One provision, though, seems common-sensical: each bill must have a “single subject.” No more massive omnibus bills throwing in the kitchen sink. It appears like it just enhances transparency. It piggybacks on 43 state constitutional provisions that say the same thing.

In fact, it’s a recipe for dysfunction, which is why it is basically never enforced.

The entire idea of legislation in large bodies, such as the House of Representatives, is compromise: you get what you want, and I get what I want. There is literally no reason why these things are or should be on a single subject. You might want something regarding, say, education, and I might want something regarding the environment. The obvious answer is that we combine them into one piece of legislation, which codifies the compromise.

Single-subject rules make this impossible (even if we could solve the theoretical question of what constitutes a “single subject,” about what more in a bit). If these two provisions must be legislated separately, it generates all kinds of possibilities of bad-faith defection.

Now, one could say: all right, if that’s true, why is it that Congress has only recently taken to passing huge Omnibus bills like the one that recently funded the government? There are two answers.

First, the parties have separated ideologically. In earlier days, if, say, the GOP leader decided to defect on a promise and not agree to the passage of the Democratic part of the compromise, he (and it was always a he) would face blowback not from the other party, but from members of his own party, which would destabilize his leadership. Now, however, these sorts of cross-cutting coalitions are things of the past. That means that deals must be enforced more strictly.

Second, and more importantly, there is no trust between the parties. Serial compromises require trust: you get your bill passed first, but you are trusted to come through on the other half of the compromise. This trust no longer exists, and the reason is obvious: the Republican Party.

As Norman J. Ornstein and Thomas E. Mann have written:

The GOP has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition.

When one party moves this far from the mainstream, it makes it nearly impossible for the political system to deal constructively with the country’s challenges.

They wrote this in 2012, when Donald Trump was still a reality host punch-line. It is orders of magnitude worse now.

So this rule seems commonsensical, but in fact is designed to cause the federal government to seize up.

Now, you might say, what about intra-party compromises? We have seen over the last two weeks that the GOP is anything but unified. Doesn’t this cut their own throat?

Well, to some extent yes: no one ever accused Kevin McCarthy  or his gang of being particularly smart. But there is a work-around: the House Rules Committee, which will determine if bills have a single subject. This Committee per McCarthy’s agreement will be stacked with House Fountainhead Caucus members. So they can always determine, if it is convenient for them, that a bill has a “single subject” even if it has no such thing.

Legislating is complex and difficult. It requires skill and patience. If anyone tells you that they have solved this problem, they are either lying or stupid, or both. As HL Mencken is often quoted as saying, “To every problem there is a solution that is simple, neat, and wrong.”

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About Jonathan

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

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