THERE OUGHT TO BE A LAW: (Log) rolling down the legislative river

August 14, 2006

I usually don't confuse C-SPAN with ESPN2. But as I flipped channels last month, there was so much logrolling going on in Congress that I thought I'd stumbled upon the birling finals of the North American Lumberjack Games.

Although, come to think of it, most lumberjacks don't spout political inanities when they work. Guess that should have been my first clue.

No, friends, the logrolling we're talking about today is that time-honored legislative practice of taking two or more unrelated issues-none of which could pass on its own-and combining them in one piece of legislation in hopes of cobbling together enough votes to pass the bill as a whole.

And last month's attempt to link an increase in the minimum wage with the repeal of the estate tax took logrolling to new heights or new lows, depending on your perspective. Unable to pass the estate-tax bill on its own merits, Republicans wedded it to the minimum-wage increase Democrats have long sought, in an attempt to force the D's to vote for the whole package. Perhaps the defining moment of the "debate" occurred when Tennessee Republican Zach Wamp taunted Democrats on the floor of the U.S. House of Representatives: "You have seen us really outfox you on this issue tonight."

By the way, how does a guy with a name out of a Dr. Seuss book get elected to Congress in the first place?

I'll leave the merits of that debate to the pundits. Here's my real question: Why do we call it logrolling, anyway? Well, it appears the term derives from the early American custom of neighbors helping each other clear the timber from their land by rolling the felled logs off the fields. So logrolling was a good thing, a way for neighbor to help neighbor. That morphed into legislators engaging in "you scratch my back, I'll scratch yours" antics, before finally evolving into the cynical political ploy we saw play out last month. Ah, the nurturing, transformative power of politics.

Now, this practice is not allowed in Indiana and many other states-at least in theory. The so-called "single subject rule" is found in a majority of state constitutions. So if you pull out your pocket version of the Indiana Constitution and open it to Article 4, Section 19-probably a well-worn passage for you, anyway-you'll see it requires that legislation "shall be confined to one subject and matters properly connected therewith."

According to the records of the 1851 constitutional convention, this language was added to the state constitution to prevent "tricks in legislation" and other "mischief." At the time, folks seemed to be pretty worked up about this practice. In an 1863 opinion, the Indiana Supreme Court included "logrolling" in a list of "corrupting influences" that should not be permitted in legislative proceedings. Two years later, a court in Michigan described logrolling as "both corruptive of the legislator and dangerous to the state."

Yet despite such rhetorical flourishes back in the day, the reality is that Indiana courts have pretty much taken a hands-off approach in terms of actually enforcing this provision. It's been 35 years since the courts have struck down a law based on this principle. Instead, the Indiana Supreme Court admittedly applies "a very liberal construction" to this provision, "with all doubts resolved in favor of the legislation's validity."

So in recent years, we've gotten laws that combined the state budget and a restriction on the collectivebargaining rights of Indianapolis Public Schools teachers; a repeal of the state's prevailing-wage law coupled with a cut in the auto excise tax; and legislation that brought Indiana in compliance with the Americans with Disabilities Act while also increasing the state's contribution to legislators' pensions.

And in every case challenging these laws, the courts concluded that the various subjects were "matters properly connected therewith." Sound like a constitutional loophole large enough to drive a logging truck through? The Indiana Supreme Court has a different take: "What one person might see as evil logrolling, another might view as simple give and take."

Why do we care? Well, if the pundits are correct and the Democrats take control of the Indiana House this fall, there's gonna be a whole lot of Zach Wamp'ing going on. You don't need me to tell you that the agendas of Gov. Mitch Daniels and House Democratic leader Pat Bauer seem to blend about as well as matter and anti-matter. What's less clear is whether we end up with gridlock or "give and take," as the court might say. Personally, I'm betting on a little back scratching.

Now I know a lot of people who'd pay good money to see Mitch and Pat go at it in flannel shirts on a floating log in White River. Sadly, not likely to happen. But that doesn't mean there won't be Olympic-style logrolling going on in the back rooms of the Statehouse next spring. After all, isn't that the neighborly thing to do?



Gifford is a partner at the law firm of Baker & Daniels in Indianapolis. His column appears monthly. This article is provided for general information purposes only and should not be regarded as legal advice for any particular situation. Gifford can be reached at 237-1409 or at ron.gifford@bakerd.com.
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