As the executive and legislative branches of our federal government approach yet another “crisis” which they created by setting up an arbitrary and unwise partial government shutdown, this time of one of our most important Departments and governmental functions – “Homeland Security”, our “Leaders” are as usual when they are not on vacation, spending too much time developing “Talking Points” designed to shift the blame for this inexcusable breakdown of an essential and basic governmental function and not enough time figuring out how to make our increasingly fragile representative democracy work.
If this essential department of our federal government does shut down (or even we avert it before this column is published with a short-term Continuing Resolution) at a time when ISSIL and various branches of Al Queda are demonstrably planning attacks on the homeland, and when China and North Korea among others are threatening and looking at ways to compromise our cyber security, it will be as a result of a collective lack of institutional responsibility in both the U.S. House of Representatives and the U.S. Senate as well as a clear lack of both wisdom and political courage on the part of the leadership of the U.S. House of Representatives. Unfortunately, Speaker Boehner and his team are in what numerous commentators have described as a “survival mode” vis-a-vis their Tea Party Colleagues. They appear to be willing to recklessly jeopardize the safety and security of the people of this nation in order to make a political point, which they have already made too many times in a lawsuit and other legislation. That point is that President Obama’s Executive Orders on Immigration are in their view beyond his constitutional authority. Put succinctly, they want to feed red meat to the base of the Republican Party in the form of political theater and they have at least temporarily (until they come to their senses which inevitably they will do if the past is a prelude to the future) elevated the care and feeding of their political base over the safety and security of their constituents whose views are notably, according to every reliable poll, not in sync with their base.
All of this points out the profound and prescient character of H.L. Mencken’s often quoted remark that “Democracy is the Theory that the common people know what they want and deserve to get it good and hard.”
Well, the “Common people” may not know it, but this writer and others think that what they should want is a federal “Single Subject Rule”. Implementation of this idea would however require an amendment to the U.S. Constitution.
Such a rule although not often discussed and for that reason somewhat obscure has deep historical roots in American law. Many states including our own state of Maryland have some version of it in their state constitution or statutes.
Such a rule, as it already does in many states, would limit each piece of federal legislation to one and only one subject. It would not only preclude attaching unrelated legislation to The Department of Homeland Security Budget Appropriation Bill thereby precluding the current and many of our prior “crisis” generated by politically staged confrontations brought on by unrelated riders and amendments to bills having nothing to do with their subject, it would also have additional salutary effects including limiting, if not eliminating the passage by Congress of “omnibus” legislation such as the “Affordable Care Act”, the Patriot Act”, as well as omnibus financial and banking reform bills, i.e. “Dodd-Frank” and “Sarbanes-Oxley” in their current unreadable and incomprehensible form.
These are laws that members of Congress concede they vote for or against without reading them. Even more amazingly and apparently without remorse, Congress men and Congress women as well as Senators admit, as did former Speaker of the U.S. House of Representatives, Nancy Pelosi, when she was explaining how the federal legislative process worked in the area of health care reform that, “We have to pass the bill so you can find out what’s in it.”
A federal “Single Subject Rule” would, in the opinion of Law Professor Brannon P. Denning and Attorney Brooks R. Smith, a Tennessee practitioner who has litigated state cases where a violation of the “Single Subject Rule” was an issue would result in enhanced and valuable transparency. This in turn would assure what Professor Denning and Mr. Smith describe as a greater “procedural integrity” and “legislative honesty”. Ultimately what you would have as legal writer and scholar Hans Linde has described it would be a “due process of lawmaking” that would assure the “legitimacy” that is today severely lacking in the federal legislative process and with that the increased trust and public confidence critically needed to maintain our democracy.