This Column Has a Single Subject

The Airport Security Federalization Act of 2001, in addition to federalizing airport security, contains a provision which limits the liability of the airlines, their airport security firms, the owner of the World Trade Center, the federal government, and any other non-terrorist defendant in lawsuits arising out of the attacks on September 11.

Specifically, damages awarded in victims' lawsuits can no longer exceed the amount of insurance coverage the defendant had. Further, interest on judgments and punitive damage awards are prohibited, and courts are instructed to reduce compensation awards by any amount of "collateral source compensation" — say, the Red Cross Disaster Relief Fund — the plaintiff has received.

The result of all this, of course, is an enormous windfall for insurance companies, comparable at the very least to the airline bailout. Before you line up for or against this, you may ask, what does any of this have to do with making airport baggage screeners federal civil servants? Why, in other words, is something like this Title II of the Airport Security Federalization Act, instead of its own bill?

Limiting liability of potential September 11 defendants has about as much to do with federalizing airport security as increased funding for the Low-Income Home Energy Assistance Program (LIHEAP), "weatherization grants" and state energy grants has to do with bankruptcy reform. Yet, these measures got their own Title (XIV) in the Bankruptcy Reform Act of 2001.

Those of us who are predisposed against windmills admire Sen. John McCain's crusade (are we allowed to say that?) against soft money and special interests and other sorts of undue influence on the nation's representatives and other elected officials, but real pork-elimination will never be had unless bills in Congress less resemble the Christmas trees we're all taking down and stowing these days.

If some measure or another can't muster the votes considered on its own to become law, then it shouldn't become law; it shouldn't be draped on another law, more likely to pass, like tinsel, as an amendment. There was a vigorous national discourse on what to do about the airport baggage screeners, essays were written, episodes of Crossfire were shot, hands were wrung. Hardly anyone talked about limiting damage awards for September 11 victims and their families. Why not? Because attached to the airport security bill, there was really no need to talk about it.

Some states take care of this kind of thing by way of "single subject" provisions in their constitutions, whereby bills considered by the state legislature have to be confined to one subject only. In practical terms, if you have an "airport security federalization act," say, everything in it has got to have something to do with federalizing airport security. In you've got a bankruptcy reform bill, it probably shouldn't contain spending increases for low-income energy programs, or you risk your law being struck down as unconstitutional.

Now, the words "single subject," if you've heard them at all in this context, probably conjure images of the ACLU challenging ballot initiatives in California they were unsuccessful defeating at the polls. But California, distrustful of its populace, not so much its legislators, prohibits referenda that embrace more than one subject, but does not require its other, more routine laws conform to this standard.

Take, instead, Illinois (please). Its 1970 constitution provides that "bills, except bills for appropriations and for the codification, revision or rearrangement of laws, shall be confined to one subject. Appropriation bills shall be limited to the subject of appropriations." The less equivocal people in Washington state provide that "no bill shall embrace more than one subject, and that shall be expressed in the title." Just as two examples out of many.

Why? In addition to the novel idea that each bit of proposed legislation should pass or fail on its merits, a "single subject" limitation fosters better understanding and more intelligent debate by legislators on the matters proposed. That's awfully optimistic, though, so consider it this way: it's easier to figure out what your guy (or gal) has voted for and against when considering your legislator's record come re-election time.

Did your Congressperson vote to limit compensation to victims of the September 11 attacks? Maybe, but that question is bolloxed into the question whether s/he voted to federalize the baggage screeners. Did your Congressperson vote to increase LIHEAP funding during a terrifically difficult time for energy consumers last winter? Maybe; if only they hadn't signed on to that awful bankruptcy reform bill. Or however you prefer to look at it.

Whichever way that is, your Congressperson, if smart enough to get elected in the first place, will be able to weasel his or her way through either of those questions by purporting to have voted for the good part of the bill, while pragmatically keeping the baby safe during the bathwater disposal process. This is what politicians do. This, and spend money they didn't earn.

We need a single subject provision in the federal Constitution. Let Congress debate both whether to make airport baggage screeners impossible to fire for misfeasance and whether to screw September 11 victims, and go on record with a vote on each.

We recall a brouhaha over the line item veto a few years ago; if you do, you'll remember that the President had veto power over specific line items in appropriations legislation, without having to reject entire bills. In 1997, President Clinton (of all people) used this power to veto 82 items in 11 spending bills, which would have resulted in a savings of nearly $2 billion in taxpayer money over five years. The problem with that, of course, is that it was unconstitutional. Given that you'll never find a bloc of five Supreme Court justices who would both be willing to invent our new "single subject" constitutional provision and limit the power of Congress, we'll just have to go after an amendment.

One possible objection to this is that Congress has an awfully full plate already, and forcing it to consider all this stuff individually would make it either have to work a lot harder or not consider as many pieces of legislation, or possibly both. I said it's a possible objection, not a good one. Either of those outcomes would work for me, how about you? Anyway, realistically, how much harder would Congress make itself work? What would happen is that it would not consider and pass as many laws. Good for it, or, rather, good for us.

Another possible, but as easily dismissed, objection is that Congress is never going to pass an amendment that would limit its own powers. (For one thing, it's too busy.) Happily, the Founders thought of that, and amendments may be ratified on initiative by two-thirds of state legislatures, without any more than administrative action by Congress (which "shall call a Convention for proposing Amendments," and then get out of the way).

Enforcement would be an issue, but nothing insurmountable. Every law regulates somebody's behavior. Someone whose behavior was negatively affected could have standing to challenge the enforceability of a law passed in violation of a single subject amendment. If the lawyers figure that something would need to be said about this in the text of the amendment itself (do you suppose lawyers could figure out a way to potentially create more lawsuits?), then we do that.

State laws can and do, by the way, get struck down by state supreme courts as violative of "single subject" clauses. The Illinois Supreme Court let a gunrunner go in 1999 because the law he broke, Illinois' "Safe Neighborhoods Law," was too broad. Now, we don't want judges throwing criminals back out onto the streets on technicalities, but this does illustrate that these provisions can have teeth.

A single subject amendment would do more to eliminate wasteful legislation than the line item veto and campaign finance reform put together, and would make us a more informed electorate with more accountable legislators. The only drawback is that it requires a Constitutional amendment, and those are icky, now that they're usually unnecessary. But we can, and should, get the ball rolling. Let's make it our New Year's resolution to lose Congress some excess weight.