Steven I. Platt: Make Congress stick to the subject

As the executive and legislative branches of our federal government approach yet another “crisis” that they created by setting up a partial government shutdown of one of our most important departments — Homeland Security — our “leaders” are, as usual, spending too much time developing talking points 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 at a time when ISIL and various branches of al-Qaida are planning attacks on the homeland and when China and North Korea, among others, are seeking to compromise our cybersecurity, it will be as a result of a lack of institutional responsibility in both the House and the Senate.

Unfortunately, Speaker John 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 of Americans 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 Barack Obama’s executive orders on immigration are beyond his constitutional authority. They want to feed red meat to the base of the Republican Party in the form of political theater at the expense of the 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: “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, has deep historical roots in American law. Many states, including Maryland, have some version of it. The rule limits each piece of legislation to only one subject.

The rule would not only preclude attaching unrelated legislation to bills, thereby precluding a crisis generated by staged confrontations over unrelated riders and amendments, but it would also have additional salutary effects, including limiting, if not eliminating, the passage of omnibus legislation such as the Affordable Care Act and the Patriot Act and financial and banking reform bills such as Dodd-Frank and Sarbanes-Oxley in their current incomprehensible form.

These are laws that members of Congress concede they vote on without reading. Or, as former Speaker Nancy Pelosi said of health care reform, “We have to pass the bill so you can find out what’s in it.”

A federal single subject rule, 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 rule was an issue, would result in enhanced transparency. This, in turn, would assure what Denning and 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 severely lacking in the federal legislative process and with that the increased trust and confidence of the public.

Steven I. Platt, a retired associate judge on the Prince George’s County Circuit Court, writes a regular column for The Daily Record. He can be reached at info@apursuitofjustice.com.