Sticking to the Subject

In a prior post, I wrote about “spot” bills.  So if a legislator thinks of a new idea, why can’t he or she simply tack it on to an existing bill?

The reason why this isn’t possible is that the California Constitution requires that a statute embrace only a single subject and that subject must be expressed in the title.  If a statute “embraces” a subject not expressed in the title, the part not expressed in the title is void.  Cal. Const. Art. IV, Sec. 9.   Other state constitutions have similar requirements (e.g., Del. Const. Art. 2, Sec. 16 & Nev. Const. Art. 4, Sec. 17).  These are two independent requirements with independent purposes.  The single subject rule is intended to limit “log rolling” – the scheme whereby a majority approval is obtained by combining different provisions appealing to disparate constituencies.  The title provision is intended to give legislators and the public fair notice of legislative proposals.  See Harbor v. Deukmejian, 43 Cal. 3d 1078 (1987).

In the case of AB 919 (Nava), we see how legislators deal with the constraints of legislative deadlines and the single subject and title rules.  As introduced a year ago, AB 919 changed a single word, “may”, to “shall” in Civil Code Section 2929.3 (which relates to foreclosures).  This enabled the author to meet the bill introduction deadline.   A couple of months later, the bill was amended to make substantive changes to other provisions of the Civil Code dealing with mortgages.  After passing out of the Assembly, the bill was gutted (i.e., all of the Civil Code amendments were stripped out) and amended to require disclosure of political contributions by corporations and grant objecting shareholders a right to a refund.  Thus, a bill dealing with mortgages under the Civil Code was reborn as a corporate governance bill amending the Corporations Code.

The techniques of introducing a “spot” bill and “gutting and amending” bills are widely used.  Unfortunately, it makes it very difficult for members of the public to have fair notice of proposed legislation.  This was particularly true in the case of California’s much derided Disclosure Act, which I’ll cover in a later post.

For more on the topic of the single subject rule, see Martha Dragich,  State Constitutional Restrictions on Legislative Procedure: Rethinking the Analysis of Original Purpose, Single Subject, and Clear Title Challenges,  38 Harv. J. on Legis. 103 (2001)

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