Logrolling Gets Logrolled: Same Sex Marriage, Direct Democracy, and the Single Subject Rule

Abstract

Single subject rules limit bills, referendums, and initiatives to one subject. Because courts first addressed the single subject rule in the legislative context before applying it to direct democracy, they tended to adopt the test for initiatives and referendums directly from their legislative analogues. The analogy between representative and direct legislation is flawed.

This article uses the conflict over same sex marriage to explain how structural differences between direct and representative democracy alter the effect of strict enforcement of the single subject rule. Part I describes the Georgia same sex marriage amendment and demonstrates how the single subject rule has failed to achieve its historic purposes of preventing logrolling and reducing voter confusion. Georgia's experience will facilitate this article's examination of the single subject rule by serving as a recurring example of how logrolling and voter confusion operate in direct democracy.

Part II reviews the historical development and purpose of both single subject rules and direct democracy. The fact that states adopted single subject rules prior to the spread of direct democracy helps to explain why courts applied their tests for legislative compliance with the single subject rule to initiatives and referenda. Part III analyzes the limitations of the analogy between representative and direct democracy. First, it employs public choice theory to demonstrate that while logrolling produces a balance of benefits and costs in the legislature, logrolling predominantly incurs costs in direct democracy. Second, this Part examines the heightened possibility of voter confusion in plebiscites. Third, it considers how structural differences between representative and direct democracy alter the role of the single subject rule. Each inquiry suggests that an effective test for compliance with the single subject rule in the legislature may prove insufficient for direct democracy.

Part IV considers the effectiveness of the predominant test for compliance with the single subject rule - the reasonable germaneness test - which imposes a lax requirement of relatedness on drafters of legislation. It finds that the reasonable germaneness test performs well in the legislative context, but that direct democracy requires a stricter test more faithful to the historical goals of the single subject rule.

Keywords: same sex marriage, gay marriage, single subject rule, direct democracy, initiative, referendum, logrolling, confusion, constitutional amendments, civil unions, Georgia, direct legislation, representative democracy, plebescites, germaneness, clear title, public choice theory, coalition, rider