Cindi Ross Scoppe

Are you ready for some bobtailing?

tglantz@thestate.com

AFTER WEEKS of trying everything she can think of to control a demonic child who runs around screaming and playing during nap time, a day-care teacher declares that from now on, when the child acts out, she will confiscate and destroy the toy he is playing with.

After she does that a few times, the little brat sort of calms down. Then one day he finds the remote control to the big-screen TV, presses “on” and starts channel-surfing, at top volume.

The teacher realizes that all the children would suffer if she took a sledgehammer to the screen, so she backs down. She just takes away the remote. And the child learns a very important lesson.

You could think of this as a preschool version of too big to fail.

Or you could think of it as our Supreme Court’s efforts to make the Legislature obey the state constitution.

For years, the Legislature cobbled together unrelated bills and passed the whole massive result as one take-it-or-leave-it proposition that no one dares leave. This is the process that gave us video gambling and a bribery-tainted retroactive tax break and enshrined the Confederate flag’s position on the State House dome and re-opened the Barnwell low-level radioactive waste landfill to the nation. It’s how many of the sales tax exemptions came to litter our tax code.

For years, too, the Supreme Court struck down the add-ons as violations of the state constitution, which says a bill may have only one subject. Then seven years ago, the court declared that, from now on, it would not simply strike down these add-ons, or bobtails. It would strike down the entire law.

And just like the preschool teacher, the court did what it said it would do. And just like the incorrigible child, the Legislature sort of behaved. For a while.

Then last year, the Legislature added a proviso to the state budget bill to let the governor keep appointing the director of the state Transportation Department after that power expired on July 1. A lawsuit was filed. And on Wednesday, the Supreme Court said that, yes, of course, that was an unconstitutional bobtail.

But rather than striking down the entire state budget, the court simply invalidated that one proviso. And it explicitly modified its 2009 decision, saying it did not apply to the budget bill. Chief Justice Costa Pleicones made a point of explaining that the court had bypassed the lower courts and heard this case in its original jurisdiction in order to preserve the budget — because a Circuit Court judge would have had no choice but to invalidate the budget.

I will engage in outrageous understatement when I say this is not the sort of thing you see a court do every day.

Three points need to be made.

First, declaring this an unconstitutional bobtail is not a close call. In fact, the court pointed to another change-of-governance bobtail it had struck from a state budget back in 1985.

Second, the governor absolutely ought to be able to hire and fire the transportation secretary. But that authority has to be granted within the confines of the constitution. And the Legislature needs to see to that, this session.

Third, the court might have made the right decision.

A sound argument can be made that the court went too far in its 2009 order. The court’s justification seven years ago was that judges could not possibly identify the “proper subject” of a multi-subject bill, and when it tried to guess which subject to invalidate and which to preserve, it was making a legislative decision, which a court is not supposed to do.

And, well, yes and no. It is true that the court cannot know which, if any, of the many subjects in a bobtailed bill might have passed as a stand-alone bill. But the court probably has a right to assume that the “proper subject” is whatever the bill started out as. I suspect that this “can’t pick the proper subject” argument was a pretext to impose the nuclear option, because the court was just so exasperated with the Legislature ignoring its opinions, over and over again. But I suppose that is, in a very different way (one might say in a noble way), just as bad as the Legislature’s own extra-constitutional actions.

Whether the court was right or wrong to go nuclear nine years ago, the justices are correct now when they say it’s clear that the purpose of an appropriations act is to appropriate money — and that the unconstitutional add-on is the one that does not appropriate money, i.e., the one that changes the governance of a state agency.

The good news is that the Legislature has taken some steps on its own to rein in bobtailing. The bad news is that Wednesday’s order almost certainly will embolden the Legislature, maybe not immediately, but eventually. Again. Even more.

Now that the court has announced it will not invalidate the state budget, the Legislature will feel free to add whatever it wants to the budget. And when it gets sued for bobtailing other bills, it can argue that the primary topic is quite clear, so the court must invalidate only the add-on. And before you know it, we’ll have the Legislature legalizing video gambling through secret budget provisos. Again.

But perhaps I am engaging in outrageous overstatement.

Ms. Scoppe writes editorials and columns for The State. Reach her at cscoppe@thestate.com or (803) 771-8571 or follow her on Twitter @CindiScoppe.

  Comments