President Joe Biden caught flak this month when he released his infrastructure plan and named it the American Jobs Plan.
Republicans said he was being misleading by stretching the definition of “infrastructure,” and they questioned his claims about the number of jobs the proposal would create. It’s neither an infrastructure nor a jobs plan, they groused.
Controversy over legislation names is hardly new. Politicians have long used bill titles as marketing, concocting sometimes misleading and outlandish monikers to get media attention, drum up support – who can be against leaving no child behind? – and frame the conversation around the bill before their opponents do.
Stark Naked Act
Sometimes the whole point of legislation is to get a conversation going and show the public that a lawmaker or a political party cares about an issue. These so-called “messaging bills” won’t pass, but they give lawmakers a chance to hold press conferences and hearings, and go on talk shows.
U.S. Rep. Pete Stark, D-Calif., in 1997 introduced a bill called the “No Private Contracts to Be Negotiated When the Patient Is Buck Naked Act,” which became known as the Stark Naked Act. It was designed to draw attention to the problem of doctors asking patients to pay more money when they were “in an exposed condition.” It never received a vote.
President George W. Bush took things a step further, introducing proposals with Orwellian names that were the opposite in substance to what their names suggested. Remember the Clear Skies Act (2002), which would have weakened the Clean Air Act, and the Healthy Forests Initiative, which became law in 2003 and gave timber companies more access to cut down trees in forests.
Other times, lawmakers try to come up with a clever and memorable acronym, often stretching the limits of the English language. Take, for example, the Service Act for Care and Relief Initiatives for Forces Injured in Combat Engagements of 2004 – the SACRIFICE Act – which aimed to help military families and recognize the sacrifices of the Armed Forces members injured in combat – and the Regulations from the Executive in Need of Scrutiny, or the perennially reintroduced REINS Act, a GOP bill to, well, rein in the president’s power.
And let’s not forget the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, known as the USA PATRIOT Act, which legitimized domestic spying.
As if coming up with these mouthfuls weren’t enough, the House Transportation Committee in 2004 was charged with weaving into legislation the name of the wife of then-Chairman U.S. Rep. Don Young, R-Alaska, Lu. The result: the 2005 Safe, Accountable, Flexible, Efficient Transportation Equity Act: a Legacy for Users (SAFETEA-LU).
It’s not just a U.S. phenomenon; University of Stirling (Scotland) researcher Brian Christopher Jones determined in 2011 that bill naming in the U.K. is an important part of the legislative process and even could influence a bill’s passage.
It’s unclear whether a bill title can affect a congressional vote, but it can have serious implications if the law ends up before the U.S. Supreme Court, where the title can be used to infer legislative intent.
“The Defense of Marriage Act” was so influential a title that its meaning was debated by Supreme Court justices in United States v. Windsor, in which the court deemed the act was unconstitutional.
“Both the majority and minority opinions discussed the name and its implications at length, but came to differing conclusions on its importance,” wrote Jones, who was so vexed by that title’s influence on the highest court in the
U.S. that he called for a neutral bill-naming office to be created so that lawmakers could no longer be in charge of naming their legislation.
In fact, lawmakers can name bills as they see fit. They are fortunate that the rules of advertising don’t apply; in 2013, Jones and attorney Randal Shaheen concluded that some bill titles would be deemed deceptive advertising if overseen by the Federal Trade Commission.
Confusion about naming
So, is Biden’s plan an infrastructure bill? Or a jobs bill?
The White House contends it is both. Building new roads and bridges, upgrading transit systems and replacing lead water pipes requires hiring lots of workers.
But trying to brand one proposal as two things violates the rules of branding, and coverage of Biden’s plan highlights the dangers of doing so. Some media referred to Biden’s proposal as an infrastructure measure, while other headlines blared about his jobs plan. Confusing? Yes, especially given the rapid-fire nature of proposals coming out of the White House these days. One could be excused for wondering whether Biden had released two plans instead of one.
Would lawmakers submit to an independent bill-naming review process, as Jones suggests?
Unlikely. Chances are they would dub it a “No Onerous Name Surveyor to Ask Regarding Titles Endlessly Released,” or NONSTARTER.
– Angela Bradbery is the Frank Karel Endowed Chair in Public Interest Communications at the University of Florida