Over the past 20 years, the Supreme Court has issued a series of rulings on the single-subject rule, the original-purpose rule, and the three-day rule found in Pennsylvania's Constitution. In virtually all cases, they have ruled unanimously that the Constitution's directives for how the General Assembly should work are to be interpreted broadly out of "deference" to a co-equal branch of government. This is logic they come back to time after time.

For example, in this year's unanimous ruling (except for Newman, who recused herself) on the gambling bill (Act 71 of 2004), the court's opinion said, "First, our case law [the law the court itself creates] makes clear that there is a strong presumption in the law that legislative enactments do not violate our Constitution... All doubts are to be resolved in favor of finding that the legislative enactment passes constitutional muster." Opinion at p. 7.

With respect to the single-subject rule, the original bill (HB 2330) dealt with requiring the State Police to provide "criminal history background reports for persons participating in harness or horse racing." This was a two-page bill. The final bill dealt with slot machines, enforcement, etc. It was 146 pages. Even so, the court ruled "...there was a single unifying subject to which most of the provisions of the act are germane, the regulation of gaming." Opinion at p. 26.

The ruling applied the same logic to the original-purpose rule. "Considering the original purpose in reasonably broad terms...we find that the primary objective of the legislation was to regulate gaming." Opinion at p. 34.

With respect to the three-day rule, the court unanimously ruled that if the single-subject rule hadn't been violated and the original-purpose rule hadn't been violated, then neither had the three-day rule. Even though none of the language from the original bill is included in the final law, and the final law was considered for only 36 hours, that's good enough.

This ruling, therefore, gave the green light to the legislature to enact the pay raise in the manner it did. They took a two-page bill (HB 1521 that would have prohibited executive branch officials from earning more than the governor) and considered it for three days in the House and two days in the Senate. Then they removed every word of the original bill and inserted 22 pages of new language, which was considered for a matter of hours before being approved and signed into law.

But the final product dealt with a single subject (broadly interpreted), which was to regulate salaries for state officials. It maintained its original purpose (broadly interpreted), which was to regulate salaries for state officials. And therefore, it is likely that the Supreme Court will rule, if it ever gets the case, that Act 44 (the pay raise) also did not violate the three-day rule.

As I mentioned, Justice Sandra Shultz Newman did not participate in the Act 71 decision, but Justice Nigro did. However, both Justices Newman and Nigro participated in an earlier case decided in the same manner, most recently Pennsylvania School Boards Association, et al. v. Commonwealth Association of School Administrators, et al. (2002). In this case the original bill, considered for eight months in the House and Senate, proposed to transfer the Scotland School for Veterans Children from the Department of Education to the Department of Military Affairs and to confer certain powers on the boards of the Scotland School and two other state-owned schools. On one day, the bill was amended with substantial new language to govern collective bargaining and binding arbitration of school administrators. Both the House and Senate approved the bill one day later.

The Philadelphia County Common Pleas Court had ruled that "there was no reference whatsoever in the legislation or title to any subject even remotely related to the arbitration of labor disputes involving school administrators" and therefore violated the requirement in Article III, Section 4 for bills to be considered on three separate days by each House.

The Supreme Court reversed the lower court stating, "This overly narrow view of the legislation ignores the fact that the initial draft of the bill, as well as the subsequent amendments, related to the administration of schools." The court also implied that such changes are normal, saying "…it is expected that legislation will be transformed during the enactment process."

In my opinion, this is the kind of overly broad view that allows and encourages the General Assembly to enact stealth legislation like the slots law and the pay raise. The Philadelphia County Common Pleas Court actually got the case right - ruling that the legislature had violated the Constitution - only to be overruled by the Supreme Court.

Now. What are my responses to these arguments?

First, the court was factually wrong to say that the original purpose of the bill that became Act 71 was "to regulate gaming." The original purpose of the bill was to regulate horse racing, not gaming. As far as I've been able to learn, horse racing has never been referred to either in law or in common parlance as "gaming." This was a critical error because it allowed the court to brush aside other Constitutional concerns like the three-day rule.

Second, the court owes its deference to the sovereign, which is the people, not to the servant, which is the General Assembly. As proof of the assertion, who elects the justices of the Supreme Court? The legislature or the people? What kind of court gives greater deference to the servant than to the sovereign? A court that doesn't understand, or doesn't care about, representative democracy. A court that has lost its common sense. When a court must decide whether to interpret the Constitution on the side of the people or the legislature, our system of government requires that it rule in favor of the people who have to live with and pay for the laws.

Third, the General Assembly has an alternative way to do business, which just happens to be the way the Constitution requires. The citizens, however, have no alternative to stealth legislation. It's not hyperbole to say that someone convicted of a crime has more right of appeal than a citizen who is victimized by stealth legislation. To whom can the citizen appeal? Not to the courts given the history of their rulings. An important purpose of the single-subject rule, the original-purpose rule, and the three-day rule is to give people a chance to know what the General Assembly is doing with sufficient notice to affect the outcome. When the Supreme Court rules that such notice is not enforceable or is irrelevant, the result is what I call "representation without representation." On the gambling law and the pay raise, my legislators could not possibly represent me because I never knew what was happening in time to inform them of my opinion.

Fourth, it is wrong to say that the General Assembly followed anything like a normal procedure in the cases cited. The normal procedure -- followed hundreds of times in each two-year session -- is to have public committee hearings; to have fiscal notes and, in the case of pensions, actuarial notes; to have floor debate; and even to have amendments both in committee and during the debate on final passage. None of this normal procedure applied to the pay raise, and not much of it applied to the gambling law. Further, it's rare for the governor to sign legislation on the same day he receives it, but that's what Gov. Rendell did with both laws.

Fifth, the court's rulings mean that the General Assembly can adopt the same procedure on any day for any purpose. As of October 3, more than 2,000 bills have been introduced in the House since January. No doubt, there's a bill that addresses every conceivable "single unifying subject" whose original purpose can be interpreted in "reasonably broad terms." This means that on any day they want, they can have a vehicle to insert entirely new language -- without notice, public hearings, or public knowledge -- and enact it.

I don't care what kind of slick language they use, this simply isn't right. People have a right to know what the legislature is contemplating, not just what they have done. People have a right to real representation, which means their legislators take time to learn what their constituents think. People have a right to influence the decisions of government before they occur.

After all, nothing our General Assembly does is so urgent - with the sole exception of disaster response - that legislators can't wait to learn what the people think who will have to live with and pay for it. None of this is national security or emergency surgery.

Why vote Newman and Nigro off the court? Because they have allowed the General Assembly and governor to abuse the Constitution's protections for citizens.

If the Supreme Court wants to stop this grotesque mockery of representative democracy, they can do it any time they want. As noted above, the Philadelphia County Common Pleas Court tried to stop it in 2002 only to have the Supreme Court, including Justices Newman and Nigro, overrule them.

When the court decides that the Constitution means what it plainly says, that people are entitled to participate in government again, all of the sleazy behavior of the General Assembly and governor will stop. It's reasonable to assume, on the basis of their records, that Newman and Nigro will not be the justices to put a stop to stealth legislation.

Until the court changes its mind -- or until we change the minds on the court -- we will continue to have a General Assembly and governor who treat the citizens as nothing more than walking wallets. For them, the phrase "checks and balances" means they write the checks and the taxpayers pay the balances.

Finally, legislators defended themselves on Act 71 last year by saying that gambling was discussed and debated for years, so people had plenty of opportunity to express themselves. This year, they defend themselves by saying that rumors of a pay raise appeared in newspapers before July 7. Like the Supreme Court, legislators say it's enough for the public to know the "general subject" that is being considered, and the details are not that important.

To which I reply that the General Assembly enacts laws, not concepts or newspaper articles. If the details aren't important, why does the legislature spend $8.5 million a year on an office of lawyers -- the Legislative Reference Bureau -- to make sure that every bill and amendment says exactly, word for word, what legislators want it to say? Indeed, if the details don't matter, why do we need courts to interpret the laws?

The answer, of course, is that the details are everything. And because they are everything, the people have a right to inspect proposals and express their opinions about them when there is still an opportunity to change them before enactment. So it is entirely appropriate, even necessary in my opinion, to remove from office judges, legislators and governors who don't behave according to that fundamental premise of representative democracy.

About Tim Potts

Tim Potts is the director of Democracy Rising. Visit their website at www.democracyrisingpa.com. Email Tim at twpotts9@kuhncom.net.

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