What Does the Legislation Do? – The Problem of Bill Titles
By David Ferguson
The titles of some bills filed in the Arkansas legislature are so short and vague they will leave you scratching your head wondering “what does it do?”
Sometimes a bill only addresses one specific change and in those instances a short title gives you all the information you need but often having a short title means very important details go unnoticed until it is too late.
Sometimes the sponsor of a bill intentionally leaves the title vague to keep you from noticing less popular changes being made. More often the vagueness comes not from an intentional deception but from the legislature’s long accepted preference for bills with brief titles.
The legislature’s practice is in sharp contrast to the lengthy and very descriptive titles you see on ballot issues proposed by the people by petition. Proposals by the people are REQUIRED to have titles that are descriptive of each change being proposed. If the title of an initiative is not descriptive enough the court will likely throw it off the ballot.
The legislature has no such rules. Legislative rules only require the subject of the bill to be “expressed in the title”.[i] But, in practice that may only tell you a broad subject area and give you zero detail.
Some legislators take advantage of short titles to hide offensive provisions from their colleagues and the public. There was a time when legislators punished their colleagues who did that. I recall a conversation I had with a state senator several decades ago in which I asked him why a certain legislator could get no bills passed but similar bills by other legislators would pass. The Senator said, “Because he lied to us about what his bill was going to do and we voted for it.” Payback for deceiving his colleagues! I don’t think that happens anymore.
While some legislators use short titles for the art of deception, other legislators have been harmed by short vague titles. Let me give you one example.
Instead of picking on a current legislator and recent legislation, let’s look back at a 2011 bill that helped defeat several legislators who voted for it. Look at the Title and Subtitle (short title) of SB383 and see if you can tell what it does.
For An Act To Be Entitled
AN ACT TO AMEND VARIOUS PROVISIONS OF ARKANSAS CODE TITLE 6 CONCERNING PUBLIC EDUCATION; TO MAKE TECHNICAL CORRECTIONS TO TITLE 6; AND FOR OTHER PURPOSES.
TO AMEND VARIOUS PROVISIONS OF ARKANSAS CODE TITLE 6 CONCERNING PUBLIC EDUCATION.
Other than being about public education it tells you NOTHING. Plus saying it included “technical corrects” led some to think it was a do-nothing bill.
What some legislators knew and others didn’t know was on the bottom of page 6 of the 35-page bill the State Board of Education was authorized to force public schools to use COMMON CORE standards. Most parents hated Common Core. When the vote was used against some legislators in the election of 2015, some tried to defend themselves by saying they didn’t know they had voted for Common Core when they voted for what they thought was a cleanup bill, but the excuses were not accepted by voters.
Too bad the legislature did not have a rule requiring bill titles to describe each change being made (like is required for initiatives). If there had been such a rule everyone would have known the bill was bringing in Common Core and some legislators who voted for the bill might have instead insisted Common Core be amended out, and some election results might have been different.
With bill titles being the way they are, legislators risk many more embarrassing votes each session.
Short vague titles is not a new problem but it has gotten worse. Even when I started work for the legislature in 1980 many bills had very short titles, but I also recall some comprehensive bills with a title that was a page or page and a half long.
Several factors have contributed to more bill titles being short and vague. If you are interested in reading some I recall, they are listed in the notes below.[ii]
By this time, you may be thinking – forget bill titles, the legislature needs to read every word of every bill. Some legislators try to do this. Some join with a group of colleagues to divide up the bills among the group and then discuss the bills in the group. But reading 1,500 to 2,000 bills is a monumental task. That doesn’t include reading all the laws referenced in the bills or the many versions of a bill that come across their desks or the many resolutions that are filed.
Also, it is not just legislators who look at legislation. There are lots of individuals and grass roots groups who try to find out what the legislature is working on, especially on issues that affect them. An honest and detailed title would everyone to find out what is going on quicker.
Requiring a title to describe all the changes would help readers understand what a bill is doing, which is just good government. Perhaps someday the legislature will consider adopting at least some standards by rule.
Like everything else, a better title has a downside in that it would take a little longer to prepare bills and a detailed title would make it more likely that the title would need to be amended when the body of the bill is amended.
For the time being you must be aware – you can’t judge Arkansas legislation by its title.
[i] House Rule 38. (j) No bill shall be passed by either house containing more than one subject, which shall be expressed in the title, and the subtitle. (J.R. 4)
[ii] Here are a few things I recall as having contributed to more bills having short vague titles.
- When I first drafted bills for the legislature in the 1980’s the legislature had a rule that if you amended a bill in a way requiring the title to be modified, you had to file a separate title amendment. Having a separate title amendment was a pain and could lead to confusion and delay. To avoid having to file a title amendment legislators and staff wanted less detail in the title so the bill could be amended without the title needing to be changed. Sometime in the early 80’s the legislature changed its rules to allow the title and body of the bill to be amended in the same amendment but the preference for titles that didn’t have to be amended remained.
- Many bills come to legislators from lobbyists. At least while I worked for the legislature, many lobbyist and other outside sources gave their bill proposals short catchy titles and legislators tended to be reluctant to make significant changes to those titles.
- Beginning with a December 1992 special session the legislature added a Subtitle (short title) to each bill because the House bought a voting machine system that included the ability to display 240 characters of a title. The Subtitle had to fit on the display. This helped the House but the downside was it wasn’t long until some legislators insisted their bill titles be shortened to resemble the Subtitles.
- A 1995 policy change in the House of Representatives eventually resulted in hundreds of shell bills being filed on the last day to file bills and by necessity almost every shell bill had an extremely short title. The addition of so many shell bills made short titles even more common place. A “shell bill” is basically a place holder with the details of the bill to be amended in later and are usually used to beat a filing deadline. Prior to 1995 a legislator who missed the filing deadline for an important bill was allowed to file a concurrent resolution to suspend the rules to allow him to file a specific bill. With the House refusing to allow such resolutions, legislators began filing vague shell bills just in case something important came up. When lobbyists saw how shell bills worked some of them wanted to have some of their proposals filed as shell bills so they could surprise opponents by amending the details when things were hectic, hoping to catch potential opponents unaware. (I have to give the legislature credit for ending the final bill deadline which should curb the problem of shell bills.)
- Across the country there was a trend of naming legislation after a person, often a victim of a crime. Some legislators wanted nothing more than “AN ACT TO BE KNOWN AS THE (name of person) ACT.” Also there was a trend in the Arkansas legislature to give a new law a fancy name and use that name as the title without explaining what the bill actually did. Giving a bill a fancy name could help sell the bill.