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The kind of logrolling hated by conservatives, except Feeney


© St. Petersburg Times, published February 18, 2001

TALLAHASSEE -- Some people think they are conservatives if they're simply for slashing spending, repealing taxes and getting the government out of everything except, perhaps, your bedroom.

William Safire, who really is one, defines conservative in a fuller sense: "a defender of the status quo who, when change becomes necessary in tested institutions or practices, prefers that it come slowly, and in moderation." (Safire's Political Dictionary)

House Speaker Tom Feeney brought the difference to mind the other day when he popped off against Circuit Judge Nikki Ann Clark for declaring the entire 1999 "tort reform" law to be unconstitutional. Feeney complained that Clark had applied "an overly technical definition" of Article III, Section 6 of the Florida Constitution, which provides that "(e)very law shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title. . . . "

Under the catch-all label of "relating to civil actions," the Legislature had grab-bagged more than 20 provisions as diverse as note-taking powers for jurors, severe limits on punitive damages, and the infamous Boeing Amendment, to which we shall return shortly. The bill comprised 53 pages, 5 1/2 of which were title.

Clark wasn't fooled. She called it "a classic case of logrolling, which is precisely the kind of enactment to be prevented by the single-subject rule."

As it had been Feeney's bill, you can appreciate why he was upset. But as a conservative, Feeney should worship the single-subject rule as if it were holy writ. Its purpose, since 1868, has been to protect the public from a runaway Legislature. What could be more eloquently, classically conservative than that?

Imagine that someone proposes a bill whose only purpose is to prohibit any product liability claim involving a commercial airplane more than 20 years old. Debate illuminates the hypothetical example of an aging 747 that blows up, not over water, as TWA Flight 800 did, but over a crowded football stadium, killing or injuring thousands of people who can't recover a dime. One might argue, crassly, that the passengers could have purchased flight insurance. But what about the people on the ground?

Not even Florida's Legislature would pass a bill like that. But when precisely such a provision -- the Boeing Amendment -- was slipped into the "tort reform" bill with only days left in the session, the combined weight of all the other logs swept it inexorably to the governor's desk. The House and Senate received the conference committee's report on the session's last day -- by design -- when the only choices were to pass it whole, kill it whole, or extend the session. Though he publicly deplored the Boeing Amendment, Gov. Jeb Bush was committed to sign the bill.

Two other interesting things had happened. The Senate had prudently obliged the "tort reform" lobby -- a formidable coalition of more than 40 companies and trade groups -- with four separate bills, any one of which might have survived single-subject attack. But the lobbies' internal deal had been one for all and all for one, and so the conference committee wrapped everything into one bill.

There hadn't been any "findings of fact" to show that the assorted restrictions on personal injury lawsuits would produce any public benefit. Those appeared at the last minute, too, but the senators on the committee balked because there hadn't been any testimony to support them. The "findings of fact" were dropped.

That was fatal. As Clark noted, the Supreme Court has upheld some examples of logrolling legislation, but only when the Legislature or a court had found an underlying crisis. Neither the Legislature nor the defendants claimed one this time.

No circuit judge has the last word on the constitutionality of a law, but as Clark's ruling was the first among many cases pending, it's likely to be hers that the Supreme Court reviews. The business lobbyists, sounding as if they had expected it, said they would ask the Legislature for new laws -- plural -- while they appeal. That signified less than full confidence in the appeal.

But the Legislature won't touch it unless it has to, which means not this year.

"Each bit will be as hard as the whole," ventured Tom Slade, a former state Republican chairman who lobbied for the 1999 bill, "and there's not a vehicle in place."

Moreover, 45 of the 84 House members who voted for it are gone -- most due to term limits -- and their replacements will have to be educated -- i.e., with campaign contributions -- to swallow what their predecessors did.

Lastly, there is this: The most controversial parts of the 1999 bill not only set a formula for limiting punitive damages in each particular case but made it virtually impossible to impose them on a defendant who'd already been assessed punitive damages for the same reasons. Bring up such a bill today, and two words should suffice to chill even the most pro-business legislator:

Ford. Firestone.

Three cheers for Article III, Section 6.

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