Thursday, May 27, 2010

Matt Entenza, Robyn Robinson, Celebrity Politics: Throwing the Hail Mary?

So Matt Entenza selected Robyn Robinson of FOX 9 to be his running mate? How interesting. What does all this mean?

When Jesse Ventura was first elected one of my graduate students and I wrote an article describing how he was an example of what we called a “politainer.” A politainer is one who combines entertainer status with politics. Jesse represented the real emergence of the convergence of politics and entertainment–or politainment. Politainers use their celebrity status and multi-media venues (and their brand) as a way to gain name recognition and market themselves both politically and personally. Politainers also have an advantage in using their celebrity status to get valuable name recognition.

For Entenza/Robinson, each of the two has a good reason in being joined to the other. Entenza gets instant recognition and buzz for his campaign, something he clearly needs. It may not matter that RR is a political novice. What he is buying is buzz. In the end, it is unclear if the choice of lt. governor really affects how citizens vote. The issue for Entenza is to get name recognition, get the public talking and to think about the campaign, and then do other ads and GOTV to get people actually out to vote for you.

For RR, she is in a no lose deal. If she wins, she is lt. governor and able to use that status to help her market her new jewelry business. If she loses, again, the campaign helps her with the marketing of her name and brand.

The real danger for Entenza is if RR flops and people say her choice smacks of desperation or it speaks badly of him as governor to select a political novice. I think RR is smarter than Palin, but the latter is one of the few examples where a number 2 on the ticket hurt who was number one.

Are Minnesotans any more likely to pick politianers than those in other states? I am not sure that is true. But if it is, maybe it says something about Minnesotans who are normally reserved that they are attracted to candidates with a lot more personality than we see in most of us. Or perhaps it speaks to how these candidates are very familiar faces and we vote based on our comfort level of supporting those we already know. Or perhaps the success speaks to how bad the major political parties have been in terms of recruiting a new generation of dynamic candidates who look fresh. Thus, you cannot look to the junior varsity bench but instead recruit from the outside. Her selection may speak more to the lack of depth of good political candidates than does anything else.

And if elected, what now? What does she do or what are her qualifications? This is what we need to hear. However, if she is truly irrelevant as lt. governor that again speaks to the need to eliminate that position as a waste of taxpayer dollars.

Whatever the reason, I will not argue that popularity of politianers in MN is part of our political culture. That answer does not tell us anything. Appeals to political culture are like saying there is something in our drinking water.

Blogging from Moscow: Waiting for the Revolution

I am live, from Moscow, Russia, blogging at the 8th Annual International Conference "Public Administration in the XXI Century: Traditions and Innovations," organized by the School of Public Administration, Lomonosov Moscow State University.

This is my third trip to Moscow, the second time attending this conference. The first trip to Moscow was in 2007, when I was teaching on my Fulbright at American University in Yerevan, Armenia. I wrote to the faculty at Moscow State and asked if I could take a quick trip from Armenia to Moscow (only three hours as opposed to 12+ from Minnesota) to give some lectures. The second time I visited was in 2008 to attend this conference.

The paper that I gave today was entitled “The Crisis of Public Administration in a Post-Global World.” The thesis of my paper was simple. As I describe it in the introduction of my paper:

Nearly a generation ago and soon after the collapse of Soviet Marxism, writers such as Francis Fukuyma proclaimed in The End of History and the Last Man [1] that western capitalism had won. More specifically, writers such as him and later Thomas Friedman in The World is Flat [2] heralded that free markets had emerged as the winner in the Cold War and that the future was one of less government intervention in the economy in an increasingly globalized capitalist economy. The winners would be those with flat economies fully integrated into the market, the losers those outside.

But the western banking crisis that began in 2008 and the global recession produced as a result is an historic event on two counts. First, state intervention to save the banks and the free market from itself undermine whatever remaining legitimacy there is in the intellectual foundations of neo-liberal ideology, setting the stage for a new vision of the world in ways that have not been seen since the 1930s. Second, the crisis and collapse of the financial sector challenge public administration, specifically the role that the government and government officials have in regulating the economy and in delivering goods and services.

Theories of the economy, state, and public administration are interrelated. As conceptualizations of how markets operate change, so do theories about the role of the state or government in relation to economic activity. This then demands a rethinking of the role of public administrators and government officials. The global recession of 2008 has challenged more than a generation of beliefs about free markets and global trade, thereby necessitating a rethinking about the role of governments in promoting policies such as deregulation and privatization. This article examines the role of public administration in a post-global world. Specifically it asks how prevailing public administration theory–at least in Europe and North America–is challenged and changed by a potentially new global economic order.
Simply put, the collapse of the global economy in 2008 brought with it the demise of the political-economic order of the world that had prevailed since the late 1970s-
80s. Ronald Reagan is dead, and the theory of politics, government, and economics that he and Margaret Thatcher represented, are also dead. The global economic collapse proved the bankruptcy and demise of the prevailing economic order and a new one is needed. Unfortunately, it is not clear that the powers to be realize Reagan is dead and real change is needed. This is beyond the change that Obama promised, it is a demand for a new global restructuring of the world economy to the degree not seen or needed since the Depression of the 1930s and the Bretton Woods Conference of the Post WW II.

My paper was part of a larger panel on public administration in crisis. I was the only American at this conference, with most participants from Russia and the former soviet republics. I find it absolutely interesting to visit this conference and talk to scholars who think about the world in ways so different from that in the USA. They talk of the unity of politics, economics, and public administration in ways that specialization in the United States does not allow.

My paper was well received on two counts. First, its content was provocative, challenging prevailing patterns and assumptions about how governments should respond to the global economic crisis. Second, my style of delivery was different. Most of the presenters use a style which I describe as “Soviet lecture”–straight lectures and little animation and discussion. I am much briefer, more animated, and do more to engage the audience. Their presentation style, much like the teaching I have seen here and in Eastern Europe, shares this lecture style. It is a style from the old Soviet era. After my talk several faculty from schools around Russia asked for my card and I was complimented on the talk. That was nice.

Moscow State is dear to my heart for many reasons. As an undergraduate one of my political science professors taught here on a Fulbright. Ever since then I was to teach or visit here. Moscow State was and is the flagship school of Russia. During the Cold War it was the intellectual center of Soviet science and knowledge. Today it is still the elite school of the country and the students here are the best of the country.

But Moscow State is also dear because while here I am assigned student translators and guides to work with. All have been female students here and the best time I have is walking and talking with them. They have shown me the hidden side of Moscow, told me about their dreams, and in general we have become good friends. Two years ago it was two students each named Anna whom I befriended, this time it is Dasha and Glbova who I spent two days with. After the conference we just sat drinking tea, discussing their views on Russia, America, and on pop culture and life. As I saw elsewhere in the former communist countries, the real revolution here is yet to come. When the older generation dies off and this new generation of those born after 1990 take power, the changes in attitudes and life will produce the real revolution here.

So to me, while my paper is about Reagan dying and the need for a global political-economic revolution, the real revolution emerging is the cultural-generational one. This is the one that I hope produces more change. Witnessing this revolution through the students is the real treat in visiting Moscow, and that is the most important thing I like about my trips here.

Friday, May 21, 2010

Challenging Minnesota's Ban on Same-Sex Marriage: Good Law, Bad Politics?

The challenge to Minnesota’s ban on same-sex marriage is good law, bad politics. There is little question that the Minnesota Constitution and precedent favor the plaintiffs. But Governor Pawlenty’s recent appointments to the Supreme Court practically guarantee there will not be a majority that reaches that conclusion.

For over 20 years I have taught a class on state constitutional law, and have taught a class on Minnesota constitutional law for over a decade. In teaching this subject I have looked at how same-sex marriage has been litigated at the state level.

Challenges to bans on same-sex marriage in America got their start in the 1971 Minnesota Supreme Court decision Baker v. Nelson. Then like now, a case was brought in Hennepin County, asking for the local officials to issue a marriage license to a same-sex couple. In 1971 there was no language in the law declaring gay and lesbian couples could not marry, but the Court ruled against the plaintiffs nonetheless.

The Court then stated that it was “unrealistic” to believe that those who drafted the state marriage laws would have intended same-sex couples could marry. It reasoned: “The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.” In rejecting claims that bans on same-sex marriage were similar to antimiscegenation laws prohibiting interracial marriages, the Court noted those laws were based on “patent racial discrimination.” There was a rational basis to limiting marriage to a man and a woman, including promoting procreation, and that did not constitute discrimination.

The legal challenges in Baker implicated the Due Process and Equal Protection clauses of the Fourteenth Amendment. The recently filed legal challenge in Benson v. Alverson is different in several ways. First, there is now Baker as precedent, as well as a Minnesota Defense of Marriage Act limiting marriage to opposite sex couples. Second, the legal challenges are rooted in the Minnesota Constitution, specifically its Due Process, Equal Protection, and Freedom of Conscience provisions. Third, this case comes not at the beginning of the legal challenges to same-sex marriage, but after several courts, including Massachusetts and Iowa, have used their own constitutions to reach decisions contrary to Baker.

After Baker in 1971, one of the most significant legal revolutions in the United States begin. Labeled, “new judicial federalism,” this a federalism among state courts interpreting their state constitutions often differently from the U.S. Constitution, often offering more protections for individual rights than those found in the Bill of Rights. Minnesota has been part of that revolution. The Minnesota Supreme Court has ruled that the State’s Equal Protection and Freedom of Conscience clauses offer more protection than those found in the in the U.S. Constitution and Bill of Rights. Given the heightened protection these clauses offer, that should be enough to question the rational basis of a ban on same-sex marriage.

Other state courts have already done that. The Massachusetts Supreme Court found that the ban on same-sex marriage violated its state’s equal protection clause. It noted in part the scores of laws that conferred benefits to those who were married and how gays and lesbians were denied these benefits since they could not wed. The Iowa Supreme Court invoked its historical state legacy of freedom in striking down the ban on same-sex marriage. It went further, noting that the only rational basis for prohibiting same-sex marriage were based on religious preferences and fears that it would damage or threaten traditional unions. The Iowa Supreme Court rejected these preferences and fears as discriminatory and irrational. Looking at the decision nearly a year later, issuing of marriage licenses to gay and lesbian couples has not hurt traditional marriages in the state. The same is true in Massachusetts.

These state court decisions serve as reinforcing precedent that the ban on same-sex marriage in Minnesota violates the state constitution. State courts regularly reference decisions from other states. This option was not available to the Minnesota Supreme Court in 1971, but it is now. Moreover, in 2009, the Minnesota State Bar Association Unmarried Couples Task Force Report documented, similar to that in Massachusetts, all the legal and financial benefits marriage conveys on couples. Those benefits are denied to same-sex couples. Similarly, if Iowa could invoke the state spirit of liberty to support its decision, Minnesota can do the same. When the Constitution was written voting rights for the free slaves was supported by many of the drafters. This support is at the heart of Minnesota’s stringent and highly protective Equal Protection clause.

In sum, the legal case to strike the ban on same-sex marriage is easy. The Minnesota Constitution offers more legal protection than does the U.S. Constitution, thereby demanding more justification under the Equal Protection and Freedom of Conscience clauses to sustain the marriage ban. Based on Minnesota precedent and rulings from other states, and documented evidence of unequal treatment to same-sex couples, one can not longer conclude that limiting marriage to a man and woman furthers a rational basis or furthers any governmental interest. It is time to reject Baker and accept the idea that preventing same-sex couples from marrying is patent discrimination no different than the antimiscegenation laws prohibiting interracial marriages.

Given the above, the legal challenge to Minnesota’s ban on same-sex marriage should be a no brainer. Unfortunately, law and politics intertwine. With Governor’s Pawlenty’s recent elevation of Lori Gildea to Chief Justice and David Stras to the Supreme Court, there is probably not a majority prepared to use the Minnesota Constitution to follow Massachusetts and Iowa. Instead, as Stras’ amicus brief in the unallotment case revealed, he is more prepared to interpret the Minnesota Constitution to follow federal precedent than to depart. Thus, legal merits not withstanding, the Gildea Court does not look like it will reject Baker.

Wednesday, May 19, 2010

Three Ring Politics

Three Ring Circus was a classic ABC School House Rock video that first aired in 1979 and it described the three branches of the national government. With the end of the Minnesota legislative session and Pawlenty’s new appointments to the Minnesota Supreme Court, Three Ring Circus is a good title for commenting on state of Minnesota politics today.

The Final Budget Deal

It stunk and they lied! That is the long and the short of it. The budget deal did just about everything wrong that could be done. First, think about Galen Robinson and those who challenged the governor’s power to unallot. They won in the courts (along with a amicus brief from the DFL House) and then the DFL essentially ratified the governor’s unallotment. I do not know if the parties to the Supreme Court case got their nutrition funds cut by this vote but the governor lost legally but won politically. Last Friday on Almanac Representative Kohls debated Representative Winkler (a former student of mine) and the former made a good point in declaring that while the DFL contended that the governor illegally unallotted, they had no game plan if they won. He was correct.

Smart budgeting and planning suggested that from the time the Governor lost in Ramsey County Court both Pawlenty and the DFL should have planned for the possibility that the Supreme Court would rule against the governor and they would have to deal with an extra $3 billion short fall. I can see the governor being in denial (as he has been for years on many issues) but the DFL should have been prepared for this and they were not. Don’t wish for something, you might get it. They (the DFL) got the ruling but did they really want to win in court? I doubt it. A victory forced them to make tough choices and they took the path of least resistence...ratify the unallotment.

The second major problem with the budget deal was to defer $2 billion of K-12 spending into the future. Both Pawlenty and Kelliher then declared there were no cuts to education. Not true! Either the money will not be repaid or school districts will have to borrow short term or cut something while they wait for the money to arrive. K-12 was hurt bad.

The third problem was that deferring spending to the future only makes the future budget problems worse. For the next budget cycle we start with a structural deficit of $5-6 billion. This budget deal does nothing to make it any better.

In effect, what happened here was identical to what happened in 2002. Then gubernatorial candidates and then legislators Pawlenty and Roger Moe did not want to deal with the budget problems and just pushed them to past the election. We have been dealing with that mistake every since. Now Pawlenty wants to push the budget doomsday off to the next governor while he runs for president, and Kelliher and most of the legislature took the easy route to delay the day of reckoning until after the election. Everyone wanted to get out of town to run for office.

Federal Health Law and the Governor’s Race

The other dumb move, especially for the DFL, was to agree to a proposal allowing until January 15, 2011, for the governor to decide about shifting many individuals insured by the State to Medicaid. The financials to do this make sense and MN should have done this. But Tom Emmer and the GOP want to run against Obamacare and creeping socialized medicine in 2010. Pawlenty wants to run for president criticizing it, and Kelliher wants to say if elected she will opt in.

The reality is that this is a ugly year for Washington, D.C., and incumbents as the Tuesday primaries in KY and PA demonstrated. Even if the federal law is a good one (a big if) I think the GOP won on this issue in MN because they can make it the issue for November. It is a great wedge issue (creeping socialism, big government, taxes, state rights) they may help the Republicans.

I can see why Kelliher agreed to this. Neither her nor the DFL won anything else and this was a face saver. She can at least say she got a small potential victory. However, between the bad budget deal, ratifying the unallotment, and screwing K-12, it is hard to see how she or the legislature won this session. They also got a smaller than desired bonding bill. Overall, Pawlenty, despite losing big time in court, he comes out politically ahead.

The New Minnesota Supreme Court

Pawlenty has now packed the Minnesota Supreme Court with four solid conservatives. All four are bright and capable but Lori and Gildea and David Stras are clearly conservative and the governor has left a clear imprint on the ideological direction of the court. Expect to see more 4-3 votes on some issues such as criminal due process. Also expect to see the Supreme Court retreated from using our State Constitution as an independent tool to reach decisions that depart from federal precedent. Stras, in his unallotment brief, wanted to treat Minnesota’s Constitution no different from the federal when it came to separation of powers. Watch to see if he takes a similar lockstep approach with other issues.

I feel sorry for Gildea and Stras. Both are capable but tainted by the governor’s decision to appoint them in light of their role in the unallotment decision. It looks lack court packing and favoritism by the governor. He could not win legally so he decided to load the court and reward those who favored his position. Neither Gildea nor Stras have done anything wrong, it is Pawlenty who acted in a way they simply ignored the appearance of impropriety here.

Overall, is Minnesota better off politically by the events of the last week? I doubt it. It is a three ring circus.

Monday, May 10, 2010

If I Ran the Zoo

Growing up, Dr. Seuss’s If I Ran the Zoo was one of my favorite books. The book told the tale of how a zoo would be different if a child ran it. I am no longer a child but the Minnesota budget mess prompts me to imagine what I would do to address the state’s short term and long term budgetary mess.

Describing the Budget Problem
First, what is the mess? Prior to the Supreme Court’s unallotment decision last week the state had about a $1 billion dollar deficit. As a result of the decision it is effectively $2.7 billion more. Some cuts have been made already so the estimate is that the current biennial deficit is at least $3 billion. The short term problem then is how to close this $3 billion hole.

Long term there is a structural deficit in Minnesota. For the biennial beginning in July, 2011, the estimate already is that the deficit is at least $5-6 billion. Put into perspective, the current biennial budget is about $30 billion. Assuming the same for the next biennial, a $5-6 B deficit approaches 20% of the budget. Because of these problems, a couple of months ago one of the major bond raters threatened to downgrade Minnesota’s bond rating. The story received little notice but it is a sign that our economic house is not in order. Overall, we face major financial challenges.

How did we Get Here?
There are lots of competing theories about the causes of the budget problem. DFLers will argue that Governor Pawlenty’s refusal to raise taxes is the cause, although they too went along with many of his budget priorities. Additionally, Governor Ventura proposed lots of tax cuts that both parties supported. Additionally, in 2002 when Ventura was still governor and the economy and budget were tanking back then he proposed both budget cuts and tax increases that both the DFL and GOP rejected. In fact, gubernatorial candidates Roger Moe and Tim Pawlenty teamed up to reject the Ventura solution and also pushed through a law declaring that inflation would be counted by the state in revenue forecasts but not for obligations. This stupid trick has distorted the budget ever since, providing a prime reason for the structural deficit.

There are others who argue that Pawlenty’s ill-fated and illegal use of unallotment is the reason for the short term problems, whereas others could argue that had the DFL not been politically outmaneuvered last year we would not be where we are. There is a ton of finger pointing but simply put, blame can be placed on all parties for the state’s fiscal and budget woes. The task now is to ascertain the best route towards fiscal health.

A New Starting Point: Five Economic Truths
If I ran the zoo (the state) I would start by accepting five facts.

1. The state faces a serious budget problem that cannot be ignored. We cannot grow our way out of the economic state we are in and instead we need to be honest about what needs to be done. Reason and facts need to replace ideology and political ambition. A governor running for president, a Speaker running for governor, and most everyone else in the legislature running for re-election have little incentive to be honest and tackle the tough issues this year.
2. The budget cannot be balanced by cutting waste. There is a persistent myth out there that the state is still full of waste and fraud and if we simply cut it we can balance the budget. I saw some comments in the readers’ section of the on-line Star Tribune making this assertion. Believing this is true is like believing in the 1990s that welfare (AFDC) was busting the budget. The reality back then was that AFDC was less than one-half of one percent of the federal budget.

After all the budget cuts in the last few years there is no real fat or waste that amounts to much of anything that can be cut or eliminated to balance the budget. This is just a myth.

Now if by waste or fraud someone means government should not be performing some function that is a matter of political philosophy. Debating the role of government in society is reasonable and honest so if someone wants to say government should do less, say so and then describe what it is the government should not do. Don’t just droll out the phrase waste and fraud.

Presently, about 40% of the state budget is K-12, about 10% higher ed, and about 25-30% health and human services. This is 75%-80% of the budget. Given these numbers, what one needs to ask what and where one can cut.

3. Budget gimmicks do not work. Not counting inflation for obligations is one of the gimmicks that has caused problems. So is the trick that we can save money by pushing obligations into the next budget years. One version of this is to delay school payments. The delay in payments is similar to an individual paying off one credit card balance by charging it to another. It solves nothing. Additionally, by delaying payments to schools, schools will have to do short term borrowing, resulting in overall more costs to taxpayers.

4. Tax cuts. Lots of people will bemoan the mantra that taxes on businesses are bad; discouraging investment and encouraging relocation. The best economic research on this questions the real impact of taxes on businesses, finding that they are a relatively minor factor for businesses in making investment and location decisions. The research does not say they are not a factor, only that they are a minor factor.

5. Cuts in state spending hurt the state economy and real people. Paul Krugman correctly describes state balanced-budget requirements as damaging to economic stimulation during recessions. The federal stimulus bill was offset by state cuts. If the state cuts spending that overall hurts the state. If it lays off people that adds to unemployment. If it cuts money to keep granny in a nursing home it hurts granny. If it cuts money to a special diet program or to health care someone is hurt. We need to consider and remember the human faces associated with budget cuts.

What to do?
Given these five facts, what would I do if I ran the zoo?

In the short term (for the current biennium) here are my ideas.

1. Rescind the 2000 Ventura tax cuts that decreased the state income tax rates and shifted property taxes from businesses to residential properties.

2. Extend sales taxes to services, coupled with a higher exemption for the poor. A sales tax on services will turn a regressive tax into a progressive one and reflect the reality of a new economy that is more service orientated. This new tax would also have a lower rate although that might not be possible in the short term.

3. Mark Dayton has proposed raising taxes on millionaires. The idea needs more detail but the suggestion should be to income taxes on those making more than $250,000 per year. This is the top 5% income bracket in the USA, and close to the top 10% in Minnesota.

4. Repeal all corporate tax incentives and corporate welfare. Last year Representative Ann Lenczewski proposed this. This is a good idea especially given how little they really help.

5. Repeal or cap the Minnesota mortgage interest deduction. This deduction is simply a subsidy for the housing industry and it mostly benefits those who buy McMansions that are environmentally wasteful. If one does not want to eliminate all of the deduction then cap it to the amount that can be claimed.

These are a few ideas for the short term. Yes they involve tax increases but there are also eliminations of corporate and middle class welfare that are not necessary. I would make these changes before proposing any other cuts to state spending.

Now for the long term what do we need to do? Here are other ideas.

1. Truth in budgeting. Eliminate the inflation discrepancy and count it for both revenue and obligations.

2. Eliminate all constitutionally mandated and dedicated budget funds. I am specifically referring to the gas tax and the new amendment for the arts and the environment. I am not saying eliminate the taxes just the constitutional dedication of the funds. Such a dedication constrains the state regarding how to spend and shift money during emergencies and it also serves as an effect limit on how much money is really spent on these programs. Plus such dedication of funds is what in part got California in trouble.

3. Eliminate the state’s requirement for a balanced budget. Paul Krugman is correct. The state should be allowed to do some very short term borrowing and deficit spending in economic emergencies, subject to constraints. As much as anything else this balanced budget requirement is the cause of our current mess. In a MinnPost piece over a year ago I said this and stick by this.

4. Consider eliminating the state corporate income tax and replace with a higher individual tax. There is some evidence that corporate income taxes pass on to lower income individuals. If true then eliminate the tax. For those of you who worry about business taxes, you should like this.

Overall, these are just some ideas to restore budget sense to the state. I assume here that my goal is not to hurt the poor and disadvantaged and balance the budget on their backs. I accept the idea that we are a collective society with an obligation to help one another. Moreover, my ideas have not addressed the other ought of how the state can invest to help the economy. That is a discussion for another day.

12% Turnout Predicted for August 10 Primary

Today I released a study indicating that the impact of changing the date of the Minnesota primary from September to August will result in less than a two percent decrease in voter turnout. The study is found here at

I predict that only about 12% of the voters, or approximately 381,000 voters will show up for the new August primary. This is a 2% compared to the 2006 primary.

The report is entitled Estimating Voter Turnout in the August 10, 2010 Minnesota Primary.

Based on the limited experiences of two other states–Florida and Washington–which changed their primaries from September to August, the impact of the new August date in Minnesota will be minimal, amounting to less than a 2 percent decrease in turnout. While two percent is not much, it is a predicted decrease, continuing a downward rate of participation in primaries in Minnesota that has continued since the early 1980s.” The reason for the decrease, according to the report, may be due to confusion, summer vacations, and the absence of the state fair to cue voters that a primary is occurring.

The report notes that the impact of the new primary date needs to be considered along side of this downward trend in primary participation. The latter may be driven by declining party identification in the state or other factors according to Schultz. The 12% turnout would compare to nearly 14% in 2006 and 31% in1982. The 12% predicted turnout in August means 381,000 voters will go to the polls this August.

In addition to predicting overall August voter turnout, the report estimates 229,000 individuals will vote in the 2010 DFL gubernatorial primary, and that to win the DFL gubernatorial primary, a candidate will need to between 76,197 and 114,410 votes, with the most likely winning number being between 90,000-95,000 votes.

Wednesday, May 5, 2010

I Told You So: The Unallotment Decision Was Predictable

The Minnesota Supreme Court’s unallotment decision was predictable. As I argued in a June 16, 2009 MinnPost op-ed, several constitutional and statutory arguments suggested that if Governor Pawlenty used unallotment to balance the budget as he promised, a court would find his action illegal.
The governor did what he promised and the Court found it illegal. In a 4-3 ruling, with Chief Justice Magnuson writing the majority opinion and casting the deciding vote, he crafted a classic opinion that actually is the model of judicial restraint. In reaching its decision, Magnuson noted that the Court could have ruled on either statutory or constitutional grounds but that since it could handle the matter by statute, it would not address the constitutional issues.
Then the court read the statute, sought its best to interpret it, found it vague, and then deferred to traditional rules of statutory interpretation to argue that it could not have been the intent of the legislature when it drafted the unallotment law to give the governor broad authority to use this power to balance the budget. A balanced budget instead was a prerequisite to using this power when there were unanticipated shortfalls. Those grounds did not exist here, the governor loses on statutory grounds. But both Justices Page and Paul Anderson in separate concurrences suggested that the governor might also have acted unconstitutionally and that the entire unallotment statute may be void.
But the unallotment decision is also narrow in the sense that it legally only affected the Minnesota Supplemental Aid–Special Diet Program; a mere few million out of the $2.7 billion unallotted. The decision does contain language suggesting all of the unallotment is void, but it technically will take additional lawsuits to overturn the governor’s actions.
Two questions remain: What's next given the opinion and who are the winners and losers as a result of the case?
What is next is that the governor and the legislature should consider the entire $2.7 billion unallotment illegal and assume that they need to fix it before session ends in few weeks. They should have planned for this decision but no one did. Now with just weeks to go there is no plan in place. Look to see either the legislature ratify the unallotment or suggest other cuts. They might try to raise taxes but there is no way the governor will support that. Unless the legislature backs down, look to see a suicide special session this year. The only thing that might change this is if the Republicans fear electoral reprisal from voters if they support cuts and they vote with Democrats out of raw political survival. The chances of this are slim.
Winners and losers? Of course the plaintiffs and Galen Robinson of Mid-Minnesota Legal Assistance are the major winners. They get their money for the diet program. They also brought the case when the DFL chickened out last year and decided not to go to court. But if the legislature ratifies the unallotment, their actions may be for naught.
The second winner is Chief Justice Magnuson. A former law partner of the governor who appointed him to the bench, Magnuson has spent nearly his entire time fighting the governor’s budget cuts to the judiciary. Unlike the other three Pawlenty appointees to the Supreme Court who supported the governor (possibly with dreams of getting named chief justice), Magnuson’s announcement before the case that he was stepping down from the Court liberated him to follow what the law told him to do. The final decision was 4-3, with the Chief Justice casting the deciding vote (as I predicted it would be). His decision will be remembered as a courageous one, marked with independence and integrity.
Now the losers. Pawlenty of course lost legally and politically. His macho use of unallotment last year was a presidential campaign signal about how he would act decisively with Congress to balance the budget without taxes. Now that the action is illegal, it is harder to see this as helping his already moribund presidential momentum. But Pawlenty’s official statement reacting to the Court decision demonstrated a lack of grace. He condemned the decision and said he disagreed with the Court but would comply. He could not accept that he did anything wrong.
The second loser is Speaker Margaret Anderson-Kelliher and the DFL. She and they opted not to challenge the unallotment last year and now look foolish. Now with the Speaker the DFL convention-endorsed candidate for governor, she is faced with numerous problems. The last thing she wanted politically was for the Court to do what it did. Whatever she does with the budget she will get the blame. As Speaker she is the face of the legislature and will be tagged with the final results. The last two years the governor has outflanked her politically. It is unlikely before this decision Pawlenty and the Republicans were going to make life easy for her, now it will be even worse as they seek to embarrass and politically damage her.
The third loser is Tom Emmer, the Republican gubernatorial candidate. He filed a brief in this case supporting the governor that was effectively rejected, and if he is elected governor, he will have one less tool at his budget disposal.
Finally, other losers include law professors David Stras and Michael Paulsen of the University of Minnesota and St. Thomas law schools. They filed a brief in this case drawing upon federal constitutional principles to defend the governor. They might know the U.S. Constitution but they did not understand Minnesota constitutional law. Then there was Patrick Robben, the governor’s legal counsel. His performance at the oral arguments in the case was awful; answering questioning more supportive of the other side than of the governor. He did nothing to help his boss int this case.
But the biggest loser in all this are the citizens of Minnesota. The State’s budget is a mess due to the political ambitions of its elected officials.

Sunday, May 2, 2010

Palin, Emmer, and the Battle to Rebrand the Republican Party

**UPDATE-See my KARE11 TV interview about the Minnesota Governor's race here:

Palin’s endorsement of Tom Emmer was a classic game changer. The announcement last Thursday on the heels of the Minnesota Republican Convention was unpredictable but now in hindsight it makes perfect sense and it should have been predicted. The endorsement is really about two things: Palin’s sway over the Republican Party across America and as a surrogate battle over the presidential nomination between Palin and Pawlenty, should she decide to enter the race.

Palin and Emmer both come from the Tea Party movement of the Republican Party. Both are very conservative, representing the third incarnation of the Republican Party in the last two generations. The first incarnation of the GOP was the old moderate wing that was composed of the Jim Jeffords (VT), Lincoln Chafee (RI), and before that, the liberals Nelson Rockefeller and Jacob Javits. This was the party challenged by Barry Goldwater and its culmination came to a head with the election of Ronald Reagan in 1980.

Reagan branded a new Republican Party that was conservative and who saw government as the problem, not the solution seeking a moral fiscally conservative, limited government that believed in deregulation, the market place, and which supported social issues. While conservative this party still managed to work across the aisle with Democrats on many issues. The Republican Party of the last 30 years has been the Reagan brand.

The Reagan Brand had a long life and many adherents, including Tim Pawlenty. As governor, Pawlenty sought to be both a social and fiscal conservative. Socially, his legacy will be one who opposed gay marriage and benefits for same sex couples, supported limits on abortion including a 24 hour waiting bill, and who also initially opposed stem cell research. Fiscally, his legacy is opposition to taxes and his refusal to formally sign any tax increases during his eight years as governor. However that is the extent of his footprint, leaving little other lasting legacy except for his positioning for a presidential candidacy within the Reagan Brand.

Unfortunately, Pawlenty does not understand that the Reagan Brand was coming to an end. George Bush’s eight years as president signaled the coming of the end of the Brand and John McCain’s 2008 loss to Obama the death of it. McCain during the 2008 St. Paul Convention spoke immediately following a biopic of Reagan, and McCain himself said that he wanted change (like Obama) but it would be change back to the Reagan values. McCain’s campaign was thus an effort to extend the Reagan Brand for one more election and it failed.

But McCain’s campaign also brought to life the third recent wave of Republicanism as incarnated in Sarah Palin. This is the anger, anti-government, Tea Party, nativist, anti-intellectual, and practically libertarian wing of Republicanism. While McCain lost the election, Palin won in the sense that she is now fighting to create the new Brand for the party built around her and the likes of Michelle Bachmann, and perhaps Tom Emmer.

Palin wants to represent the new face of the GOP and is traveling the country to endorse candidates. She brings her star power–a rockitcian– wherever she goes. She has created her brand by drawing up pop culture marketing of herself and is combining it with her support for candidates she likes. Doing this accomplishes two things. First, should she run for president she will have many favors owed to her and her rebranding of the party will be one supportive of her values. Second, even if she does not run she is still remaking the face of the party, effecting the Palin brand for a new generation of candidates. This is where Tom Emmer comes in.

Tom has increasingly moved to capture and align himself with the Palin wing of the party. He has moved further to the right over the years. When Tom was first elected he contacted me and asked to carry my campaign finance reform legislation in the Minnesota State Legislature. He introduced my version of McCain-Feingold for the state along with a host of other finance bills. I wonder if he would support them today? I like Tom as a person and we get along well but we have testified on the opposite side of several issues. He supports photo ID for voting, I have testified against it. He supports public disclosure of the names of judges who issue parental bypass orders permitting minors to secure abortions, I have testified against it as simply an effort to commit thuggery against judges.

My point here is that Emmer has been smart to see where the Republican party is headed and it is not towards Reagan, Pawlenty, and Siefert. That brand is dead and is now being replaced by Palin, Bachmann, and Emmer, unabashedly conservative.

Palin’s endorsement of Emmer thus placed her imprimatur on him to help band the Minnesota Republican party. In doing that, Palin yet again one upped Pawlenty. The first time was a few weeks ago with the Palin-Backmann rally in Minneapolis. This time she made Pawlenty all but irrelevant at the State GOP convention. His speech meant nothing on Friday, she stole the show from him and she had more influence in the convention than the governor did in his own state convention. I see the Palin endorsement as a surrogate battle for the presidency between Palin and Pawlenty. It was about rival views of the party, influence, and legacy and guess who won again? Palin again makes Pawlenty look weak.

Final thoughts on Emmer? In his acceptance speech he said in Palinesque that he would not run to the center during the general election but would stay true to his conservative views. Normally this would be a suicide strategy for a gubernatorial candidate in a two party race, but here in a three party contest it might make sense.

The three most important rules of politics for candidates are: 1) have a good political narrative; 2) mobilize your base; and 3) capture the swing voters. In MN, no party had support of more than 50% of the population, meaning that the swing voters control the balance of power in the state. Normally both the DFL and the MN GOP would seek to mobilize their base and then moderate to capture the swing voters. Emmer is signaling he will not follow this strategy. Why might this make sense?

The DFL will have Kelliher Anderson, Dayton, or Entenza as their nominee after the August 10, primary. All three are liberal candidates. My guess is that the percentage of the population that votes or leans Democrat in MN is about 36%. Tom Emmer is perhaps the most conservative GOP candidate in decades. The percentage of the population that votes or leans GOP is about 32%. Finally, the core base of the Independence Party is about 10%. This leaves about 22% of the population that swings.

With DFL and GOP picking candidates who might excite the bases, this leaves enormous room for the Independence Party to carry significant influence and carry the moderates. Emmer may be banking on a viable third party challenge to capture the center, but he is also counting on the anti-incumbent fever and the hope that his base is angrier and more mobilized than the DFL base. In short, while the GOP has a smaller base, they may be more motivated to win and if Emmer simply concentrates on the base, hopes the DFLers are not too motivated to vote, and the Independence Party candidate (Tom Horner I suspect) chews up much of the center, perhaps he (Emmer) will win. We shall see.

In a future blog I will discuss why I think Horner has a real good chance to do well this year if the perfect storm of politics comes together.