Combining subjects in one bill is bad lawmaking

I checked my New Mexico constitution the other day, and the provision is right there where I left it: Article IV, Section 16,  “Subject of bill in title; appropriation bills.”

“The subject of every bill shall be clearly expressed in its title, and no bill embracing more than one subject shall be passed except general appropriation bills and bills for the codification or revision of the laws; but if any subject is embraced in any act which is not expressed in its title, only so much of the act as is not so expressed shall be void….”

This is called the single-subject provision. I wrote about it a couple of years ago, pointing out how nasty it is when Congress violates this principle and what a relief it is that New Mexico, along with 41 other states, has a single-subject requirement.

Congress regularly sticks multiple unrelated subjects into the same bill, so members have to vote for the part they disagree with in order to support the part they agree with. How many bills have come out of the US House of Representatives that include something about undoing the Affordable Care Act, for example? The House of Representatives was barely able to pass a bill funding the Homeland Security Department for more than a week because some members insisted on holding the funding hostage to extraneous provisions. It’s one reason Congress can’t get much done and why our opinion of Congress is so low.

During New Mexico’s current legislative session, when a legislator added a minimum-wage provision to the right-to-work bill (House Bill 75), my first reaction was that’s a nasty trick; the two subjects should not be in the same bill. My second reaction was, “What about the constitution?” (Right-to-work, you recall, says that people who don’t want to join unions don’t have to, even when the union is required to represent them.)

We have a single-subject provision precisely to prevent things like this.

The minimum-wage provision, added by means of a committee substitute for the original bill, raises the state minimum wage to $8 an hour, with an exception for trainees. The committee substitute also contains a “severability” provision, which says if any part of the bill is found invalid, the rest of the bill will still be in effect. The severability provision suggests the author of the tacked-on minimum-wage provision understood the bill might be on shaky ground.

Legislation that does not meet constitutional criteria does not become void automatically. Somebody has to bring a lawsuit to challenge it, and the issue has to be argued before the State Supreme Court, which will decide. A couple of experts told me they thought it’s unlikely the court would overturn the bill if passed. Attorney David Buchholz said, “I believe that a modern court would give a fair degree of deference to the legislature in determining the scope of the subject of a bill.…”

If this bill is enacted, we can guess Democrats will bring that lawsuit, but we can also guess that the bill won’t make it through the Senate, which is controlled by Democrats. Republicans have carried the bill this far. Democrats have introduced several minimum wage bills, all of which increase the minimum wage more than this one. Those bills are not moving at all in the House, and not much in the Senate.

By employing tactics that imitate Congress, our legislature is wasting time and resources on bills that won’t get enacted. They are also deepening partisan dissension that will make it harder to get other things done.

This is not just a question of the legal right – whether this bill could survive a challenge in the courts. It’s whether this is or is not the right thing to do. I think it is not. Legislators have let a particularly combative cat out of the bag, setting a precedent that we will live with at our peril.

Triple Spaced Again, © New Mexico News Services 2015