Another view
Wednesday, Aug 23, 2023 - Posted by Rich Miller
* I received some push-back about a post I did last Friday (click here) on the state constitution’s three readings requirement. From the Illinois Constitution…
A bill shall be read by title on three different days in each house. A bill and each amendment thereto shall be reproduced and placed on the desk of each member before passage.
The key to the other side’s argument is “shall be read by title.” Even when jamming through amended legislation at the last second, they’ve read the bill “by title” on three days in each chamber.
* This is from the state’s argument in the recent Caulkins vs. Pritzker assault weapons ban case…
First, as defendants noted in the circuit court, C498-99, plaintiffs did not establish a violation of the three readings rule. That rule requires that bills be “read by title” on three different days in each chamber of the legislature. Ill. Const., art. IV § 8(d). Plaintiffs acknowledged that the Act’s title was read on three different days in both the House and Senate, but they claimed that between readings, the Act was substantively amended and not read three times thereafter. C13-15. The title, however, did not change through the amendment process. C59 (reflecting title of “an act concerning regulation”); C67 (amendment preserving title). Thus, the three readings rule was satisfied.
I knew about that, but thought it was an awfully narrow and technical reading.
* I was reminded of that push-back while reading this column by Jim Dey…
It was designed then to prevent exactly what legislators do now: legislation by ambush. They propose complicated bills at the last minute that few have read or understand and then vote them into law.
The idea behind the mandate is that the legislative process should be open, that legislators should have time to review and debate the issues before them, and that the public should have forewarning of what’s on tap.
Nonetheless, legislators ignore the requirement.
I thought the drafters had that very same intent.
* But this is also from the government’s appeal, with emphasis added by me…
Plaintiffs appear to contend that the three readings rule required reading the Act’s text, but that does not comport with the Constitution. Although some cases have suggested that substantial amendments to a bill must be read three times, that authority relies on Giebelhausen. E.g., People v. Gill, 169 Ill. App. 3d 1049, 1056 (1st Dist. 1988) (citing Giebelhausen). Giebelhausen interpreted the three readings rule in the 1870, not the 1970, Constitution. See 407 Ill. at 46. The 1870 Constitution required a bill to be read “at large” on three different days in each house. Ill. Const. (1870), art. IV § 13.
This change from requiring three readings “at large” to three readings “by title” was a deliberate choice by the Constitution’s drafters. The Constitutional Convention’s Committee on the Legislature explained that the three readings requirement in the 1870 Constitution — requiring that bills be read “at large” — was adopted to ensure that “those members of the General Assembly who could not read what was in a bill know its contents,” and “the legislative process did not move with undue haste.” 6 Record of Proceedings, Sixth Illinois Constitutional Convention 1385.
But in 1970, the committee noted, the rule was no longer needed to assist illiterate legislators. Id. The revised rule — that bills be read “by title” — struck the appropriate balance, avoiding “undue haste,” but “without unnecessarily allowing the legislative process to be bogged down in the interminable delay of ‘reading at large’ on three separate days.” Id. In other words, the drafters of the 1970 Constitution rejected the practice of reading the text of each bill, and recognized that, as a practical matter, legislators in the modern era were aware of the contents of bills. Plaintiffs’ argument, demanding three readings of the entirety of each bill, ignores the constitutional text and thwarts the drafters’ choice.
In other words, the contention is the 1970 drafters were actually relaxing the rules.
* Even so, I’m reminded that the Illinois Supreme Court finally got fed up with the legislature violating the constitution’s single-subject clause and clamped down…
The single subject requirement, therefore, “ensures that the legislature addresses the difficult decisions it faces directly and subject to public scrutiny, rather than passing unpopular measures on the backs of popular ones.”
In determining whether a particular enactment violates the single subject requirement, the term “subject” is to be liberally construed in favor of upholding the legislation, and the subject may be as comprehensive as the legislature chooses. Nevertheless, a legislative act violates the single subject rule when the General Assembly “includes within one bill unrelated provisions that by no fair interpretation have any legitimate relation to one another.” Therefore, in order to satisfy the single subject requirement, the matters included within the enactment must have a “natural and logical connection” to a single subject.
The GA really stretched that definition and got brought up short. It should probably be more careful on the three readings stuff. The court’s majority managed to avoid the question in the Caulkins case, but it’ll surely face this issue again.
- Perrid - Wednesday, Aug 23, 23 @ 11:52 am:
“…and recognized that, as a practical matter, legislators in the modern era were aware of the contents of bills.”
Are they aware though? If it’s common practice to gut and completely rewrite bills that have been “read by title”, does anyone know what’s in the bill? Rich had some good examples in his post complaining about it the other day.
That’s a practical argument about what should happen, not a legal argument about what’s required by the Constitution, but still.
- Rich Miller - Wednesday, Aug 23, 23 @ 11:59 am:
===Are they aware though? ===
Good question and why pushing the top court on this could be unwise.
- Oswego Willy - Wednesday, Aug 23, 23 @ 12:04 pm:
===Good question and why pushing the top court on this could be unwise.===
When Rich had this as a QOTD, I was “fine” with it to this exact extent.
Once ambiguity is lost for a specific “other branch” as ILSC seems to give to the full extent, unintended consequences to exacting letter of the constitution becomes more of an unintended restraint
- Suburban Mom - Wednesday, Aug 23, 23 @ 12:11 pm:
===Are they aware though? If it’s common practice to gut and completely rewrite bills that have been “read by title”, does anyone know what’s in the bill? ===
I’m not sure how draft bills are given to legislators, but it should be fairly trivially easy to use a native “track changes” or “compare changes” function in a word processor, or to have an amateur programmer spin one up for plaintext bills.
There are lots of these on the web that track and highlight companies’ stealth changes to their public-facing privacy policies and user agreements
- Anyone Remember - Wednesday, Aug 23, 23 @ 12:13 pm:
Single Subject violation(s). Wasn’t that the “fruit” from the “tree” of Pate Philip limiting the number of bills that could be introduced? People should remember that when they complain about the number of shell bills.
- TheInvisibleMan - Wednesday, Aug 23, 23 @ 12:21 pm:
–was adopted to ensure that “those members of the General Assembly who could not read[…]”–
Ah, I see why republicans are so angry about this now.
- JB13 - Wednesday, Aug 23, 23 @ 12:23 pm:
– Pate Philip –
There it is. Can always count on someone here to reach back into the past to find a Republican they can blame for something untoward Democrats are doing *now*
Well done.
- Rich Miller - Wednesday, Aug 23, 23 @ 12:26 pm:
===something untoward Democrats are doing *now*===
Incorrect. The Dems aren’t being accused of violating the single subject rule. Your victim trigger is set too light. Adjust.
- Oswego Willy - Wednesday, Aug 23, 23 @ 12:26 pm:
===someone here to reach back into the past to find… are doing *now*
Well done.===
Another view?
Institutional knowledge is a thing.
- Learn Something New Everyday - Wednesday, Aug 23, 23 @ 12:26 pm:
====A bill shall be read by title on three different days in each house=====
A long time ago I was complaining to one of the attorneys on one of the staffs at the beginning of the year before they passed their rules. I told them they should change the rules to at least allow changing the title of the bills. I used the example of a gaming bill being on a bill concerning nursing. After they listened for a minute they just looked at me, laughed and said “read the constitution”.
- Oswego Willy - Wednesday, Aug 23, 23 @ 12:28 pm:
===Another view?
Institutional knowledge is a thing.===
So I’m clear.
This idea of not understanding *any* institutional knowledge in context is bad, that shouldn’t be a thing.
Rich already cleaned up the misunderstanding “to the actual”.
- JB13 - Wednesday, Aug 23, 23 @ 12:32 pm:
– Plaintiffs’ argument, demanding three readings of the entirety of each bill, ignores the constitutional text and thwarts the drafters’ choice –
Using the plain text of the constitution to point out they violated the constitution is meritless and likely unconstitutional, because people in 1970 would agree that it is not unreasonable to expect lawmakers to read thousands of pages of legislation in a few hours?
Whew.
That argument explains why Rochford, Theismann, et al simply ignored the Three Readings arguments completely in the assault weapons decision.
- Norseman - Wednesday, Aug 23, 23 @ 1:20 pm:
A lot of huffing and puffing to argue the effort of MAGA GOP politicians and a couple of judges come up with some plausible excuse to invalidate a reasonable justice reform measure. They failed miserably.
Had this bogus argument succeeded, think about 50+ years of laws that could be subjected to challenge under this new doctrine.
Folks need to move along and do the people’s business and work to ensure the new law is implemented efficiently and effectively and any legitimate glitches that arise get fixed expeditiously.
- Excitable Boy - Wednesday, Aug 23, 23 @ 1:27 pm:
- the rule was no longer needed to assist illiterate legislators. -
This may have been the case in 1970 but now that we have several seemingly illiterate legislators it is certainly time to rethink it.
- SAP - Wednesday, Aug 23, 23 @ 1:45 pm:
Part of the reason that, about 25 years ago, LRB started drafting bills with very general titles instead of bill titles referring to specific Acts being amended.
- cover - Wednesday, Aug 23, 23 @ 3:18 pm:
The drafters of the 1970 Constitution made a clear distinction between the 3 readings requirement on bills (”read by title”) vs. constitutional amendments (”read in full”). These terms have plain meaning, just like “shall not be diminished or impaired” in the pension clause. I see no basis for the Illinois Supreme Court to reinterpret “read by title” to mean “read in full”.
- TheInvisibleMan - Wednesday, Aug 23, 23 @ 4:41 pm:
“several seemingly illiterate legislators”
They also seem to be afraid of the dark, with how often they complain about how things are done ‘in the dark of night’.
No matter how many times I read the state constitution, there’s still nothing in there about requiring the sun to be above the horizon.