The Need for Constitutionsto Define the Boundaries of the Legislative Game

Thomas Jefferson opened his original "A Manual of Parliamentary Practice" with this statement:

Mr. Onslow, the ablest among the Speakers of the House of Commons, used to say, "It was a maxim he had often heard when he was a young man, from old and experienced members, that nothing tended more to throw power into the hands of administration and those who acted with the majority of the House of Commons, than in neglect of, or departure from, the rules of proceeding; that these forms, as instituted by our ancestors, operated as a check, and control, on the actions of the majority; and that they were, in many instances, a shelter and protection to the minority, against the attempts of power.

So far the maxim is certainly true, and is founded in good sense, that as it is always in the power of the majority, by their numbers, to stop any improper measures proposed on the part of their opponents, the only weapons by which the minority can defend themselves against similar attempts from those in power, are the forms and rules of proceeding, which have been adopted as they were found necessary from time to time, and are become the law of the house; by a strict adherence to which, the weaker party can only be protected from those irregularities and abuses which these forms were intended to check and which the wantonness of power is but too often apt to suggest to large and successful majorities.

And whether these forms be in all cases the most rational or not, is really not of so great importance.  It is much more material that there should be a rule to go by, than what the rule is; that there may be a uniformity of proceeding in business, not subject to the caprice of the Speaker, or captiousness of the members.  It is very material that order, decency and regularity be preserved in a dignified public body.[1]

Introduction

Having worked in the federal legislature in a limited roll and the Texas legislature as a senior staff person, I have often wondered why the two bodies operate so differently.  From my perspective, Congress is a much less deliberative body than the Texas legislature.  Deliberation, being the goal of any successful legislature, is the proposal of ideas followed by a thorough discussion or debate on the merits to each idea.  Legislative proposals, in the form of bills, are written by a few powerful members in Congress and, once written, rarely do other members have an opportunity to amend the legislation.  But more importantly, few members get to propose alternative ideas in the public forum and force votes thereon.  What this means for public voters is vague elections where issues are not at the center of the debate but rather the personalities.  There is no voting record to run on or against because most of the recorded votes are on large pieces of legislation, whose purpose can not be relayed in a small political mail piece or a thirty-second commercial.  Perhaps the most devastating effect of the lack of deliberation is the squelching of ideas and the less than perfect legislation that has been forced through the chamber rather than agreed upon through compromise.  In short, often the voice of the minority never makes it on the page and no matter what political affiliation a citizen chooses, he has lost.

My experience with the Texas Legislature exhibited to me a much more responsive body.  The talent of most every member was well utilized and the members with less knowledge on a given topic were protected from tough work thereon.  Where politics were necessary, they were allowed, and where close hard work was needed, it was delivered.  Though Texas has its own problems in terms of an efficient legislature, the goals of proposing, analyzing and debating, and accepting or rejecting of ideas was well accomplished.

At first I thought the most important difference between these chambers was bi-partisanship.  Whereas there is a great deal in the Texas Senate, there is very little in the United States House of Representatives.   It was difficult for me to believe that this difference was due to the quality of people in the chambers so I turned to another reason.  Could it be that the rules under which the body operates could affect what type of body it becomes?  There is no doubt that is true.  When I started a closer analysis of the rules governing the state and federal legislatures, it became clear that constitutional rules play an important role in governing how the state legislatures operate.  On the other hand, there are no constitutional rules controlling Congress.

The most important of these rules is the one-subject rule.  A one-subject rule requires that any bill or resolution be limited to one distinct subject and that the subject should be clearly contained in the measure's title.  The goal is to prevent bills from being too lofty for any one member to comprehend and to ensure each important measure receives its fair deliberation and vote.  Though it is not a panacea to all the problems of the federal legislature, I believe had the founders placed it in the Constitution of 1787, Congress would have evolved much more differently than it has.  Though it is unlikely the clause will ever make its way into the federal charter, the lesson learned from its absence exhibits to the authors of future constitutions here and abroad that a one-subject rule is an important clause limiting the power of the legislature.

Curiously, the founders of the United States Constitution never seem to have considered the subject.  Indeed, the only evidence of their feelings toward a one-subject rule or any other constraint on the rules governing the House and Senate is Article I, Section 5 of the Constitution, which states, "Each House may determine the Rules of its Proceedings."  Courts have taken this phrase seriously and rarely overturn a legislative result based upon an inequitable rule.  With the exception of a few rules, which do not much affect debate, there is no other constraint on the proceedings of the federal legislature.  Thus, Congress is left unchecked to govern its proceedings, almost as it sees fit.

The result of this decision by the framers has been a smaller version of what James Madison warned about in Federalist 10.  When discussing a chief complaint of government by his contemporaries, he stated, "the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority."  Madison goes on to partially agree with this summation of the failures of past governments to what he called factions.  Factions are "a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community."  He believed the chief response to the threat of factions was "to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations."  Madison went on to say that the evil work of factions will still take place but he hoped the other divisions in government would be an adequate check.  What his work did not account for was a "chosen body of citizens" who acted without any consistent set of rules and where the minority rarely, if ever, were able to participate in the process.  This article hopes to exhibit that mistake.

This work also hopes to fill a gap in scholarship.  Very little investigation has been done regarding the one-subject provision.  What little has been accomplished recently is with regard to a political solution to the problems of Congress.  As mentioned infra, many have suggested methods in which a one-subject provision could be urged under the current Constitution by the President or the Courts.  The constitutionality of their suggestions is a discussion that is taking place elsewhere.  My concern is what the rule means for the people who draft the government charters of the future.  The only study on the provision from a constitutional perspective was written in 1958, and it was a survey of the various state provisions and how they have been affected by court decisions.[2]  My hope is to augment this work by providing an example of what occurs without the one-subject provision and to offer a comprehensive argument for its value.

I.Congress' Operation

The early Congress was a much more manageable and deliberative body than the national legislature of today.[3]  Courtesy, dignity, and custom controlled the proceedings of the House and Senate in the early days of the Republic.[4]  The Senate would sometimes adjourn from their chairs to the cloak room fireplace to keep warm and discuss pressing matters.[5]  This type of body did not need complex rules to keep order and deliberation.[6]  In fact, they only adopted 20 standing rules.[7]  Thomas Jefferson wrote the first rules of the House as a small pamphlet and they still form the basic rules of that chamber today.[8]  Today the number of people on one house committee often exceeds the entire membership of the Senate in the early days of the Republic.[9]  As a result, the rules have been often amended and they have increased rapidly.[10]

The filing of a proposal begins the legislative game.  Proposals for new law are filed as either a bill or joint resolution.[11]  It was long the custom that measures creating new law that envision only one, simple subject be filed as a joint resolution.[12]  More complicated measures were to be filed as bills.[13]  This distinction is rarely observed today.[14]  Overall, passing a bill is much more difficult than defeating one.  There are many obstacles in place for a bill sponsor.[15]  Each of these obstacles is more likely than not the product of a procedural rule.

Each house adopts its own rules describing how proposals of one of its members shall be handled.[16]  The Senate rules carry over through sessions because of the continuity of membership.[17]  The House adopts new rules at the beginning of each Congress, usually following the previous rules substantially.[18]  Sometimes an election, which results in a shift of the majority party, will cause a substantial rule change at the beginning of the next Congress.  This is usually to correct what the new majority feels were abuses by the old majority during their time in power and is a rare occurrence.  In addition to the written rules, a great deal of precedents are recorded and followed by the chair of each body.[19]

Unlike many state legislatures, the interaction of the membership is rarely affected by the rules themselves.  There is an informal agreement among the bodies that members should be able to work their will on the floor.[20]  As a result, the complex rules of each body often does not constrain the actions of it.[21]  Often rules are waived or ignored.[22]  Each body has several sets of rules for different phases of the body.[23]  If a bill fails to obtain passage under one set of rules, it is usually not prohibited from waiting for another set of rules.[24]

Also, the rules have no effect unless a member brings them into play.[25]  A member can call a rule to the attention of the membership by raising a point of order.[26]  The point of order is raised by offering it to the membership through the chair.[27]  The problem is that often the chair does not recognize a member with this objection or other political factors prevent a member from raising a point of order.  For example, the President's favorite program that is widely supported by the public is not likely to be the subject of a point of order, even if the bill seriously violates and important rule.  Moreover, if the chair does recognize a member on a point of order, a discussion then ensues between the member offering it and the offeror of the subject amendment or bill.[28]  If an agreement can not be worked out, the member then insists on the point of order and the chair undertakes a decision.[29] 

However, a rule of the chair can be overturned by a majority of the membership in either body.[30]  Though this rarely occurs in the House, in the Senate, point of orders can be ruled on by the majority before the chair makes its determination, and they often are.[31]  This allows for the rules on any given bill to be decided by a simple majority.  Thus, as one commentator has put it, "the rules are not permitted to stand in the way of Congress' Policy objectives."[32]  Indeed, votes on procedure are often votes on policy.[33]

Despite the many rules in place to handle legislation, the major initiatives, which are likely to cause high amending activity on the floor, are rarely heard under the standard rules.[34]  In the House, the Rules Committee sets the rules for debate on each bill and decides if and when it will be heard.  In the Senate, each bill is set for floor debate by the majority leader and the rules for that debate are set with a unanimous consent agreement worked out by the majority and minority leadership.[35]  The rules are often shaped to contain the debate to positions only the bill sponsor or leadership desire.[36] 

The rules of Congress for any given bill are highly complex and often depend upon the bill being debated and those rules could change at any given moment of debate.[37]  Though this article does not attempt to flush out all of the common avenues for legislation, many other quality analysis are available for review.[38]  What is important to note for this purpose is that, as a whole, the rules for Congress are up for debate along with each policy suggestion.  For better or worse, this leaves the policy decisions almost entirely to the majority.  Only the filibuster in the Senate and political maneuvers through the press by the President or a popular Congress member are available to the minority to seriously affect major legislation.

With regard to a one subject procedural policy, there are two rules that constrain bills to one subject.  First is the one-subject rule itself, which requires a bill to envision only one subject, and second, the rule that all amendments be germane.  The first rule ensures a bill covers only one topic from the start while the second prevents a bill from being changed to another subject or used to carry an initiative involving another policy area.  For an example of a germaneness provision, Rule XVI,7, of the Rules of the United States House of Representatives of the United States provides, "No motion or proposition on a subject different from that under consideration shall be admitted under color of amendment."[39]  On the other hand there is no standing rule in the Senate requiring amendments to be germane to the subject bill unless it is an appropriation measure.[40]

Neither body, however, requires each piece of legislation to envision one limited subject.[41]  For example, a bill can be proposed that creates a national health care system and also decreases regulation to environmental polluters.  However, since most bills are heard under specific rules, it is important to note that though the House rules for each bill are usually very restrictive about amendments, the Senate rules rarely have a germaneness requirement.[42]  Even when a rule exists in a unanimous consent agreement, for example, it is often rarely followed and members rarely enforce it against one another because it prohibits members from speaking on any topic when their schedule permits, a practice every Senator would like to retain.[43]  Also, neither body includes a one-subject rule provision for any bill.[44]  The result being that a member can file a bill reorganizing the tax code that can then be amended to also change speed limits on interstate highways and require means testing in social security benefits.  Indeed, a single bill could be filed to do all three things.

Bills covering multiple subjects like the one just mentioned are a result of a political technique called logrolling.  There are two types of logrolling.[45]  One involves loading several items into one bill in order to gain a majority vote on the same measure.[46]  The other is when one member promises her vote in the future in exchange for another member's vote immediately.[47]  The second method is less certain and leaves room for a member to change her mind, arguably a better method for policy reasons.[48]  Time logrolling is less risky in the Senate than the House because the body itself is smaller and because Senate rules allow co-sponsoring, which allows a member to effectively place his name as an author of the bill.[49]  Thus, once a member places his name as a co-sponsor on legislation, it looks foolish later when he votes against it.[50]

Some logrolling is helpful.[51]  It allows members to compromise by giving and receiving on various topics.  When done with the time method, all policy is still voted on in the open and most members are aware of the various trades being made.  On the other hand, when all the provisions are rolled into one bill, it is impossible for any member to know the contents of the bills voted on.  Thus, votes often come down to coalitions rather than good policy.  Indeed, many votes are for legislation in which the individual member has no idea what is contained therein.  This process of legislating has become the rule of the United States Congress.

For a while, the common practice for individual members has been to attach their bills to moving appropriation legislation, thus bypassing the typical hurdles for individual bills.[52]   Omnibus bills are often used to cover a wide-range of policy areas and the rules allow for sections of legislation to be referred to many different committees.[53]  In this way, no single member has a handle on the entire depth of the bill. Amendments offered on the floor to an appropriation bill are almost always accepted by the bill sponsor, which is usually the chair of the committee that oversees the department being funded.[54]  Amendments accepted by the bill author are almost always adopted.[55]  This allows a great deal of policy to be injected into moving bills with little or no public comment or deliberation because the committees have been bypassed.  It also allows legislation to roll into bills that the membership itself is unaware exist.  On the other hand, a broad bill could be written in committee which is advertised by its title as dealing with elderly care when it actually does little on the elderly care topic and more about assistance for ailing savings and loans.  Since often the House Rules Committee adopts a closed rule that prohibits any amendments to a bill, it is impossible for an attentive member to remove any policy material from the bill, which is not advertised as being there. [56]  Should she choose to vote against a measure, a political opponent is likely to send out a direct mail advertisement claiming the bill the incumbent member voted against was to assist elderly individuals, usually a popular cause.

The result is a system wherein most bills that make its way through the process are very large so that each member can have little hope of reviewing it.  Thus, the policy ends up being decided by the committees and their leadership, which is of course the chamber leadership.  With the rules allowing a rolling quorum in each committee, these policy decisions are often made by a few members and more often their staffs.[57]  Consequently, when a bill lands on the President's desk for a signature, it is on a broad range of topics and its contents are usually only comprehensively known by the originating committee's staff.  The President is then in a position to veto or accept.  The politics for him being, does he sign a bill for elderly care, which actually does little on that topic and more for another, or does he veto it?  His political opponents are waiting and watching.

This method of producing laws has been in practice for some time and delegates to state constitutional conventions in the new Western states observed the process and learned from it.  For example, delegates to the California Constitutional Convention of 1849 recognized that the federal system was developing into a much less deliberative body.  The suggestion was made that a one-subject rule would help the situation.[58]  One delegate stated, when a motion was made to remove the one-subject rule from a draft of California's new Constitution, "Logrolling is the way legislation takes place in the Congress of the United States, and accounts for the vicious legislation which takes place there . Now, if we should take this clause out altogether, it would open legislation here to the same rule."[59]  The delegates retained the rule.[60]  The typical one-subject rule requires "(1) that the act contain only one subject and (2) that this single subject be expressed in the act's title."[61]

II. Who should decide what rules control congress?

Apparently, the Founders gave little thought to the subject of rules for the legislative branch.[62]  Perhaps this was due to the close relationship between members of that body and a belief such a relationship would persist into the future among federal legislators.  The result of the Founder's conclusions in this area is the provision that controls today.  Article One, Section Five of the United States Constitution provides, "Each House may determine the Rules of its Proceedings." 

The courts have given this section much strength.  Litigants, usually members of Congress and interest groups, have tried to attack unfair rules in the past.[63]  Courts will review procedural rules with deference but other liberties must not be infringed.[64]  However, courts usually resolve the matter on the political question doctrine.[65]  The court used the textual commitment of rules to Congress in the Constitution alone to determine that a political question exists.[66]  The one loophole is when the Constitution does place a proscription on Congress.  In that case, Congress may create the rules to ensure the spirit of the Constitution prevails but it must do so with a reasonable rule.[67]  They may adopt their rules by custom or practice.[68]

In some cases, courts are willing to avoid a specific textual commitment of a power to the legislature.  For example, the United States Supreme Court decided to allow the instatement of a Senator even though the Senate itself had determined he was unfit for office.  The Senate did so in accordance with Article I, Section 5 of the United States Constitution, which states in pertinent part that each house "shall be the judge of the elections and returns . of its own members."[69]  In any event, the courts have been unwilling to travel down the same road when it comes to the rules of the bodies themselves.

It seems that courts have determined that for them to decide procedural issues, usurps the role of the body itself.  That is to determine what the law should be.  This is true even when the decision seems to be wholly procedural and when due process may be of concern.  For example, one court determined that it would be "a 'startling unattractive' idea" to decide whether the Speaker of the House was in error when he appointed more Democrats than Republicans to powerful committees.[70]  If the Court does decide to skip passed the political question doctrine to determine the case on the merits, the test is in two parts: (1) "what rules has the (legislative body) established" and (2) have those rules been followed.[71]

The United States Supreme Court opined it this way, "The question, therefore, is as to the validity of this rule, and not what methods the speaker may [utilize to achieve his goals.]  Neither do the advantages or disadvantages, the wisdom or folly, of [the] rules present any matters for judicial consideration. With the courts the question is only one of power.  The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained.  But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just."[72]

Thus, it seems the only restriction in the Constitution on the procedural operation of the Congress is the provision requiring spending bills to originate in the House.[73]  One scholar has argued that the Founders may have been concerned with the process of omnibus bills when it adopted this provision because the practice of big spending bills had already begun in England.[74]  The framers were concerned that one bill originating from a chamber through the other would lead to tacking, but for unknown reasons, they included it anyway.[75]  It seems the framers believed the powers they gave the Senate were adequate to check any logrolling that may have occurred to appropriation bills or that the chambers would resolve the matter with their own rules.[76]

Unfortunately, the Founders were incorrect in their assumptions and the chambers have not been effective, if they have earnestly tried at all, to eliminate the practice of severe logrolling or tacking, as they referred to it.  As a matter of fact, the Founders had evidence that rules left to the legislatures themselves would often work mostly for the majority.  Prior to the Constitutional adoption, non-germane amendments were allowed in either chamber even if they vitiated the entire bill or changed its purpose.[77]  Under the new Constitution, some improvement was made to the rules by the House.  In 1787, that body adopted a rule that substitute amendments must be germane.[78]  Then after much obstruction, in 1822 the House applied the rule to all amendments.[79]  The rule has remained the same since.[80]  Unfortunately, as discussed supra, it is rarely followed due to the custom of adopting specific rules for each matter under consideration.  As for the one-subject rule, neither chamber adopted it as a rule of practice despite the fact that both Jefferson's Manual of Parliamentary Practice and Luce's Legislative Procedure (two of the primary sources of legislative rules) included provisions suggesting that bills be limited in scope.[81]  In fact, Jefferson's Manual advised, "every question, which is brought either before the House of Lords or Commons, should be as simple and as little complicated as possible. For this reason, the proceeding, that is but too often practised, of putting together in the same Bill clauses that have no relation to each other, and the subjects of which are entirely different, ought to be avoided. Even where the propositions are separately not liable to objection in either House, the heaping together in one law such a variety of unconnected and discordant subjects, is unparliamentary."[82]  Indeed, even the rules of the Constitutional Convention allowed any member to divide a complicated question into subparts for consideration.[83]

It wasn't long before writers of other American constitutions noticed the mistake of leaving all procedural rules to the legislature.  By the Civil War, the practice of logrolling was so pervasive in the United States Congress that the Confederacy adopted the one-subject rule.[84]  The provision became so popular that, after the war, the new constitutions of the Southern states incorporated the provision into their new constitutions.[85]  It also spread to the constitutions of the new Western states.[86]  Today, forty-one states have some form of the one-subject rule.[87]  Also, the Model Constitution contains the provision, though it eliminates the clause from judicial review.[88]

As for Congress, scholars have suggested many fixes to the ongoing problem.  First, some argue the President can veto a measure envisioning many subjects because it is not a bill as understood by the Founders.[89]  The proponents are claiming that when the Constitution uses the word bill, it assumes one subject by definition.[90]  Other commentators have argued the presentment section actually means a limited definition of a bill.[91]  In recent years, even Senator Robert Byrd (considered the resident Senate expert on the rules of procedure) has suggested a rule be adopted that allows 3/5 of Senators to adopt a germaneness rule on any given measure.[92]  However, the most successful option is to amend the document itself, a politically unlikely solution.  Whatever solution is found to the American problem, if any, it is clear that writers of the constitutions of the future should seriously consider a one-subject provision.

III. In Defense Of A Constitutional One-Subject Rule

There are many reasons, in addition to the ones already mentioned, for a constitutional rule that limits the reach of an individual piece of legislation.  As noted supra, a lack of constitutional rules and the habit of adopting rules for each measure considered has made a travesty of the deliberative process in the federal legislature.[93]  The result has been the governing of a small number of the majority party in each chamber.  When this occurs, there are several negative results.

The house describes their germane amendments rule's purpose as "to prevent hasty and ill-considered legislation, to prevent propositions being presented for the consideration of the body which might not be reasonably anticipated and for which the body might not be properly prepared." And "it precludes consideration of subjects that were not considered by the appropriate committee."  Also, "the rule [is one] that favors the majority and hinders the minority in its attempt to introduce alternate proposals."  Finally, "it prevents bills from being 'rewritten on the floor' on terms 'which have never been reported by any committee."[94]  These reasons apply to the single-subject rule but when it is in the Constitution, it can not be ignored by the majority as the House rule described above often is.

The first adverse result of not having a one-subject rule, is when a provision is placed in a bill without the knowledge of other members and obtains passage as a parasite to the host measure.[95]  For example, in one state without a one-subject rule, the legislature found that some of its members had smuggled a provision in a bill allotting state lands to some private individuals.[96]  The bill became law and many acres of state land were transferred.[97]  The event caused an enormous public spectacle and the legislature quickly reversed the measures.[98]  They also adopted a one-subject rule.[99]  It is impossible to be certain how much of our federal law is mistakenly passed, but it is certain it is possible for a member to slip something in a bill.  Moreover, even if that opportunity is never ceased upon, the ability to subvert the process so pervasively hinders the image of the body and process as a whole.

In the extreme, lack of some control over the legislature by constitutional rules, leads to a total deadlock of the chamber.  In one case, a court by necessity was forced to determine the rules because the chamber had completely disintegrated.  The court did so acknowledging that the common law did not allow it the power but failing to act would cause a complete collapse of government.  The leadership under one regime was battling with the leadership of another as to which controlled the chamber.  Separate floor debates occurred wherein members from the opposing regime were absent.  In essence, two decisions were made on the same subject.  In that case, the court decided who was in charge and compelled the legislature to resume business.[100] 

Thirdly, a single-subject provision prevents the legislature from veto-proofing bills by loading them with popular provisions before sending to the President.[101]  In this instance, a bill is filed in committee with a title referring to a popular purpose.  In other words, the bill is well supported by the public.  Next, as the bill makes it through the chamber, it is well supported by both parties.  Then, once the bill reaches conference committee, to work out what little differences there are between the House and Senate bill, it is amended with many other controversial provisions.  The bill leaves the conference committee and then each chamber must only accept or reject this popular measure despite the fact that it does much more than advertised.  The rules do not authorize amendments to conference committee reports.[102]  Thus, a rule must be very offensive for the chamber to reject the bill.  The President is similarly placed in this position when his approval is requested.

Some have suggested that the President can combat veto-proofing by using the press to complain of riders.[103]  Though this argument may be true on larger bills, the average bill will receive little or no press attention.  Also, other pressing matters will exist so as to prevent the President from taking his time on the subject.  The result is a political decision is made.  Though the executive may oppose some portions of the bill and support others, he may have to sign it if his team determines an opponent will likely use a veto against them and that the administration is not willing to expend the political capital on the issue.  With a one-subject provision, the debate would have to be limited to the one subject, preventing the unpopular portions of the bill.  In short, it prevents the legislative branch from subverting the power of the executive.[104]

The process of logrolling has its benefits to some.  First, the leadership almost exclusively controls the debate.  Also, a second more legitimate benefit from this system is that a bill could be filed to begin the process and then once the leadership and the President have worked out a compromise, it can be substituted in the conference committee.  This is wonderful for efficiency but it still subverts almost 90% of the membership of Congress.  Under a one-subject rule debate, when the executive works out a compromise with the bill sponsor, it is offered as an amendment on the floor and is explained.  Then, depending upon the popularity of the executive, the compromise is adopted.  As noted supra, when the bill author accepts this amendment, it is almost always accepted by the body.

Single-subject legislatures have another procedure for allowing compromises between branches, which develop later in the process.  In that case, members usually know early in the session so they divide an important measure into several bills entertaining the popular parts and the controversial.  All the bills are filed and the non-controversial head through the process.  The proposing members also file a bill with a vague title and send it through the process.  Once an agreement is made with the executive, all the bills are referred to one conference committee and then are rolled into the bill with the vague title.  In this instance, almost all of the measures were debated on the floor and votes were taken.  The members of the conference committee who want to subvert the minority are in a position where they must take out measures debated, amended, and accepted during floor debate.  Most often the political pressure is too strong to accomplish that individual member's goals.

Another benefit of the rule is perhaps the most important.  It is a long settled rule that any appropriation must first be authorized by law to be in order.[105]  In other words, before Congress can allocate money to spend on a program, the spending program must be authorized by law first.  What this means under a one-subject rule regime is that a bill must be passed authorizing the program and describing who will get the money and how it will be allocated.  Then, the money must be provided for the program in an appropriation bill.  The current practice, without the one-subject rule, is to roll the provisions of a given program in with the appropriation.  Thus, the benefits of a program are often assessed along with the billions of dollars allocated to pre-existing programs.  What this means is, once it is written in the appropriations bill, it becomes law with that bill.  A much more limited version of this phenomenon occurs in the states.  The appropriation committees alter programs in the spending measures by restricting how money can be spent.  This effectively changes the law.  However, a framework must already exist in the law creating the program.  Without it, the committee is not permitted to spend the monies.  At least, under this scheme, a vote was once taken on whether the program was good policy at all.

Others may suggest that membership need only be encouraged to adopt and operate under a one-subject provision.  This suggestion is ineffective for several reasons.  First, the custom of both chambers, as exhibited supra, is to avoid legislative rules and change them as a bill moves forward.  This custom seems to be the natural evolution of such a body.  Secondly, when only the body can police its rules, a chair can refuse to recognize a member trying to enforce them.  This leads to the third problem with the suggested solution.  When the chambers make the rules, it goes along that a majority of the chamber makes the rules.  Thus, if there is majority support for a bill, then the majority can change the rules to ensure passage of the measure.  

The rule's placement in the constitution gives it much greater weight.  When left to the body, those offended can not bring the issues before the courts to get a fair determination.[106]  A constitutional rule allows this check by another branch.  Furthermore, a minority of one can raise a point of order that is likely to be taken if the rule is in the constitution.  For example, I have observed floor debates where a bill with overwhelming support was killed by a point of order from a minority member because of a perceived constitutional violation.  Members are afraid a court will strike down a measure on constitutional grounds and they will be caught in the next election cycle explaining why they voted for an unconstitutional measure.  Political opponents often capitalize and misrepresent these situations in political mail pieces.

Some scholars have used these numbers to show that the rule is ineffective.  The rule is "a weak and undependable arrow in (and advocate's) quiver," according to one commentator.[107]  Indeed, most of the time the court finds no violation of the one-subject rule.[108]  Professor Ruud argues the reason the provision is ineffective is the presumption that acts are constitutional and courts don't want to say something "funny" happened in legislature.[109]  What this ignores is the feeling among legislators, as discussed supra.  This doesn't mean members don't take it seriously and the threat a measure may be overturned is still there.  Indeed, there have been hundreds of cases where a court has been called on to determine if an act envisions more than one subject, and struck it down for that reason.[110]  This exhibits that the threat of having a bill overturned is there but there are not enough of those decisions to interrupt the state system, as others may suggest.

With the provision in the Constitution, it is also possible the executive could enforce the rule with the veto.  The more likely result will be as it occurs in some states today.  The executive will find a member of the body to hear the bill next and will have her raise the point of order during floor debate.  This is often seen as a gift from the executive and members who have been chosen to raise of point of order are seen as political friends of the other branch.  This often times makes them a more powerful member, depending upon the popularity of the executive.  This favor system works with amendments also.  When the executive wishes to propose an amendment to a bill, he bestows it upon a willing member as a favor.  Thus, the power of the rule is the negotiation that it spurs between the executive and members of the legislature.[111]

Limiting the subject of bills and thus, invoking a germaneness rule by necessity of the Constitution, eliminates the need for severe limits on floor amendments as often required by the House Rules Committee and the Senate Unanimous Consent Agreements.  This is because the leadership does not have to be concerned about a rogue member bringing up an unsavory topic.  Lack of an open amendment process allows members to avoid attending floor debate because issues do not unexpectedly come up.  Votes are scheduled and issues are debated off the floor, among the leadership.  A one-subject rule might encourage members to stay on the floor, as many more bills would come up.

It may also be argued that requiring bills to be on one subject would take too much time with such a large body.  First, the states seem to prove this not the case.  For example, in Texas bills are small enough for members to read in a few minutes, and some in fact do.  The result is a much more lively and spirited debate on the issues.  Though many times debates can last into the night, almost five thousand bills can be heard in six months.  Every bill that makes it to the Governor has been seriously considered except for a few abuses at the conference committee level.  Though Texas has its own problems in laws slipping through the cracks, overall, the debate exists where it is simply absent on the federal level.  Plus, votes are forced to be up or down on a measure.  Though some political backsliding can occur later as to what the bill does, it is severely restricted to the one topic.  Thus, when public voters are informed on a member's voting record and it shows that she supported a particular bill, it will be less difficult for her to claim the bill actually accomplished other tasks.

Requiring legislation to go through exhaustive steps wherein it must pass a vote at each level actually checks the power of the majority.  The rule prevents one committee from invading the subject matter of another.[112]  With the House rules as they are, all the Speaker need do is appoint a large contingent of majority members to the Rules Committee and all debate is then controlled by the Speaker because any bill making it out of a subject committee must set for a debate by the Rules Committee; the Rules Committee must also construct the rules for the debate on that bill.  Under a one-subject rule, bill production is shifted to the committees because each policy area is divided into smaller bills.  When the leadership appoints members to various committees and posts, it can not hide the minority party - it usually controls about half of the seats in the chamber.  Sometimes the minority will hold a small majority of seats on a committee or moderate majority members will place votes favoring the minority.  Thus, only a few major blockades can be firmly controlled by the leadership.  As bills come out of committee that require passage, the leadership will become more dependent upon the work of these committees and their work will prevail in floor fights.  The Speaker will still control the Rules Committee; however, more members will have a stake in any bill and will resist any destruction of their compromise language by the leadership.  Also, because members will have so many more bills of theirs to accomplish their pet goals, they will need members of the opposing party to support and will work hard to build relationships across the aisle.

A one-subject rule does not solve every problem of the modern legislature.  The leadership can still completely change a bill in conference committee and then push it through on the floor.  However, it is much more difficult because the committee and the entire membership of the body have built the bill.  Many amendments will have been made to the bill and many members will have a stake in it.  It is no longer the product of a few members.  As a result, even members of the majority will be angered by a complete revision in conference committee.  They will want to protect the provisions they were able to get in the bill, and most will want to stand by the compromise they made with the minority to get the provision in the bill.  To do that will mean retention of provisions they gave in the give and take.  More importantly, proponents of the measure going into the conference committee will be able to rely upon the public testimony and study the authoring committee undertook to create the bill.  This will give them an upper hand in the debate.

Conclusion  

Congress has evolved into a body with little deliberation where most important pieces of legislation are drafted by a few and pushed through each chamber.  This has led to a lower bi-partisanship spirit because the new majority is always trying to punish the old for what it perceived were abuses of power during their control.  A lack of constitutional rules, specifically a one-subject rule, has fertilized this environment.  A legislature without rules is policy making in the state of nature; where the party with the most force achieves their goals and the rest of the ideas perish.  The fittest is the party with the majority and is not inclined to entertain the ideas, good or bad, of the minority.  The only check on this abuse of power is the hope that another party controls the White House or the other branch in Congress.  When that occurs, a balance can be reached wherein limited compromise becomes necessary for solutions to prevail.  Unfortunately, when the bodies are split, sometimes the "patriotism and love of justice" Madison hoped members of the federal legislature would possess, is not enough to overcome the intense feelings sowed by the events of the past.  When this happens, stalemate results.

[111] Harold Staeley, Missouri's Single Subject Rule: A Legal Tool to Block Environmental Legislation?, 7 Mo. Envtl. L. & Pol'y Rev. 41.