The 2015 Minnesota legislative session and the soon-to-be special session will be noted for passing few laws, failing to get its work done on time, and simply for sidestepping important policy choices that it needed to address. But it should also be noted for its contempt for open government, democracy, and respect for the State Constitution. In effect, it is a simply dissing of democracy and the rules for process for how government should operate.
Closed Door Budget Negotiations
Consider first the most obvious and blatant assault on democracy–the behind the door negotiations to resolve the budget. It’s bad enough when legislative leaders and the governor did private talks and deals on the budget at the governor’s mansion. Bad enough when votes take place at the end of session at the wee hours of the morning. Bad enough when they take place in impromptu conference committee hearings that effectively exclude the public and most legislators. But now the talks to resolve the disputes over the three budget bills are being done in private between Governor Dayton and Speaker Daudt. No public, no media, no other legislators. The deal they carve will be presented as take-it-or-leave-it to other legislators in a special session that will be perfunctory at best. There is no real accountability and public inspection of these negotiations, no real chance to raise objections, and no real deliberation and debate. Public matters such as the state budget should be done in public, not behind closed doors as if this were corporate America.
Big Money Wins
Second, Democrats and Republicans joined together with the governor to eliminate the political contribution rebate (PCR) program. These program, one of the true hallmarks of political reform in Minnesota, allowed for Minnesotans to contribute up to $50 per year and have it rebated to them by the state. The PCR was nationally hailed as a powerful campaign finance reform tool that encouraged small contributors to give. Repeated studies pointed to how legislators successfully used it to reduce their dependence on large donors and special interests. It was also a mechanism to help third party candidates.
But now it’s gone. Governor Pawlenty killed it once and it came back. But now it is gone again, and probably dead forever. It, along with horrible legislation passed a couple of years ago raising contribution limits and weakening disclosure laws in Minnesota have just about killed off all of the reforms this state had adopted in the early 1990s. Minnesota has effectively deregulated money in politics, benefitting noone except for special interests, big money, and the incumbents who voted for these reforms.
Gutting the State Auditor’s Office
Finally, consider legislation that guts the State Auditor’s Office. The State Auditor is an officer provided for in the Minnesota Constitution and its primary responsibility is to audit local governments in the state to make sure that they are spending their money appropriately. It is an important position in the state that promotes accountability to ensure tax dollars are spend the way they should be. Yet the legislature voted to privatize the audit functions, giving local governments the option to hire private audit firms. The governor signed this bill but now seems to want the legislature to undo this.
The governor should have never signed a bill that allowed for this. Nothing against private auditors, but this is the constitutional duty for the Auditor. The privatization will cost tax payers more in the long run–as is typically the case with many privatizations.
But in many ways, it probably does not matter whether the governor wins to get this privatization overturned–the provision is probably unconstitutional, conflicting both with Article V, section 1, of the Constitution creating the office of the Auditor, and Article III, section 1, the separation of powers clause of the Constitution.
There is a rich jurisprudence in Minnesota that carefully protects and respects separation of powers. One of the best cases on this issue is State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777 (1986). In that case at issue was a 1985 law enacted by the legislature, in special session, which transferred most of the responsibilities of the State Treasurer, an executive officer, to the Commissioner of Finance. The reason for the transfer of responsibility was that the Treasurer, then a constitutional officer, essentially abandoned the state and was no longer performing his duties. The Supreme Court rejected this transfer of duties.
The Court reasoned that even though the duties of the treasurer were prescribed by law, that “does not allow a state legislature to transfer inherent or core functions of executive officers to appointed officials.” One branch of government, or even another part of the executive branch, cannot act in such a way either to undermine the core functions of another constitutional part or make it impossible for it to perform its constitutional duties.
Other Minnesota cases have reinforced that point. In In re Marriage of Sandra Lee Holmberg at issue was whether a law regarding child support giving administrative law judges power to modify district court orders and to assume duties of district court judges violated the state separation of powers clause? The Court said yes, arguing that the transfer of power violated separation of powers. In supporting its decision the Court referred to precedents and decisions in other states reaching the same conclusion.
In State v. Baker the Minnesota Supreme Court voided a state enhanced gross misdemeanor statute as unconstitutional because it allowed for local imprisonment without a 12 person jury trial. Here the Court said that the law sought to redefine crimes to avoid the constitutional mandate. In State ex rel Birkland v. Christianson, the Court declared that the legislature cannot change form of government which would change separation of powers. In In re Temporary Funding of the Judicial Branch, a case involving funding for the judicial branch as a result of a government shutdown in Minnesota, the Supreme Court ruled that it had the authority to require the legislature and governor to fund the courts, for failure to do so would prevent the judiciary from performing its constitutional duties and therefore it would be a separation of powers violation. Similar conclusions were reached regarding separation of powers and constitution in Clerk of Court's Compensation for Lyon County v. Lyon County Commissioners.
The point simply is that there is good reason to conclude that this privatization is unconstitutional and in a law suit the Auditor would likely prevail. Given these precedents, it should be clear that this legislation does nothing more than express contempt for the State Constitution. It does that, along with the current negotiations on the budget and the elimination the PCR. The three together are a huge step backward for transparent, fair, and constitutional government in Minnesota. Process matters.