Sunday, May 26, 2019

Fixing Minnesota Government: Why Cultural Change Requires Structural Change

Merely pledging “cultural change” at the Minnesota State Capitol and hoping the politics will be different  is reminiscent of  the Scottish proverb "If wishes were horses, beggars would ride."  Declarations of good intentions are nice but naive:  It is not just about leaders saying they will work together, but instead the state government needs to build new structures and institutions if it truly wishes to change the culture and politics at the Capitol and avoid in the future the problems that defined the 2019 session.
Promises at the start of the session were made by all to play nice and cooperate.  Yet it is no surprise that the 2019 Minnesota legislative session ended with another gridlock that went into overtime and accomplished far less than most hoped.  It was also eventually a clandestine process where many critical decisions took place in secret.  The reason for all this is elementary–fundamentally nothing structural was changed in the process of how the legislature and the governor do their business.  The rules and processes for the last generation that have led to special budget sessions 80% of the time, three partial or near governmental shutdowns, and two major State Supreme Court fights were  the same one in place this year.
As the cliche goes, insanity is doing the same thing over and over and expecting to get different results.  Political insanity is the same–following the same process deployed in the past and expecting different results.  Expecting  different results this year simply because political leaders wanted it to be different ignores the incentives that have produced the breakdown at the Capitol.
Polarization is a fact of life there now.  It  is more than a result of partisan attitudes, a result of many forces, including deep-seated party differences over the role government should have.  But these attitudes are also reinforced by election rules that produce few swing districts that converge toward center, election rules that augment the power of divergent interest groups, and lobbyist and campaign finance laws that do little to curb the impact of big money.  All of these forces create political incentives not to cooperate, no matter what the intentions at the Capitol.
But in addition, the rules for doing business at the Capitol may be broken. There is perhaps too much work and too little time to do a near $50 billion budget under constitutional rules established decades ago.  The budget process does not work, the legislature flouts the single-subject and germaneness rules (and the State Supreme Court gives them a pass), and the most basic requisites of a democracy–respect for openness and transparency–are ignored.
Minnesota politics needs to be fixed, but somewhere in the last generation the appetite for reform died.  Back in the early 1990s Minnesota was a national leader in campaign finance reform, open government, lobbyist disclosure, and other innovations that gave the state high marks for it government.  But since then the state has done little, now meriting near failing grades from the Center for Public Integrity.  The state rested on its laurels, letting others surpass Minnesota in critical areas.  Fundamentally, there has not been a major piece of political or campaign reform adopted in Minnesota in over a generation.  The state is no longer a cradle for innovative good government.  Politics has changed in Minnesota, but the basic governing processes and institutions have not.
That is why it is not a surprise nothing changed this year in Minnesota.  Instead of opting for  political reform of the process, use partisanship and gridlock as a strategic tool to campaign on in the next election.  “Political reform” is beating up the other party, seeking single-party dominance where one can move an agenda without serious opposition.
This year there were pledges of cultural change, but no legislative proposals to enable that.  No legislator seems interested in political reform anymore.  Cultural change necessitates institutional change; alter the rules regarding how the process operates and you will create the incentives and capabilities to change the results.
So if the legislature and the governor really want cultural change, they need to consider rules changes and institutional reform.  What might these reforms be?  Here is a list of possibilities, some big and small, that need to be considered as either constitutional, statutory, or joint chamber reforms.
Change the budget process.  This includes timing of fiscal forecasts, when budget targets are set, and perhaps creating joint House-Senate committees to expedite decisions.  Also, change the law  tht allows inflation to count for state revenues but not obligations when making the budget and fiscal  forecasts.  Among the worst feature of Minnesota politics is budgetary dishonesty.
Adopt a permanent automatic continuing resolution law that would guarantee state funding at current levels plus inflation if no budget is adopted on time.
Serious adherence to the single-subject and germaneness rules.
Apply the rules of open meeting laws to all activities of the legislature.  This would require all conference committees, budget negotiations, and legislation to be done in public.  The current  closed door negotiations undermined the ability of legislators, especially new ones, to learn policy and negotiation skills, thereby undermining the development of new leadership.
Rethink campaign finance rules, including limits on special interest money contributions to the parties and legislative caucuses.
Strengthening of the public financing for campaigns.
Increase lobbyist disclosure rules so we know what legislators they are talking to and about what.
Creation of a non-partisan redistricting commission to draw legislative districts.
Replacement of current single-member, first-past-the-post election districts with multi-member ones selected with ranked choice voting.
Consider a constitutional convention to undertake a more comprehensive review of the structures of state government (the last major constitutional reforms were in the 1970s).  Many states  have changed their constitution more than one since statehood.  Minnesota more or less has the same one in place from 1857.
Certainly these are not the sum of possible political reforms the state should consider, but the important point is that real political reform needs to go back on to the legislative agenda.  Maybe the ugly 2019 session will the catalyst for that.

Tuesday, May 21, 2019

Another Minnesota legislative session, another that goes to overtime: Reflections on the Causes of Minnesota Legislative Deadlock

Another Minnesota legislative session, another that goes to overtime.  Too many cliches describe
where Minnesota politics is now.  One can say that it was entirely predictable that the 2019 legislative session would not end with a final budget passed.    In fact, as I argued two years ago, this is the new normal in Minnesota.

Minnesota’s Growing Dysfunctional Politics

A quick review of recent Minnesota politics should prove that the state may not have the most dysfunctional legislative politics in its history, and over the last generation, it has one of the worst track performances of any state.

Of the now 53 special sessions that now have occurred or will this year since statehood. 24 or 45% were called to finish required budget work not completed during regular session.  This suggests that getting all the work done during the constitutional deadline has always been a problem but it is even more so in the last 20 years.

In the last 20 years special sessions are far more frequent and have shifted from occurring on average once every four years (since statehood) to three out of four years.  Since 1999, there have been ten legislative sessions devoted to the budget, eight of them have required special sessions. We have had two partial governmental shut downs (one under Dayton in 2011, one under Pawlenty in 2005), and a near shutdown under Ventura in 2001.  Also under Pawlenty in 2009 there was a significant budget fight that involved his unallotment of money to balance the budget that was eventually struck down by the Minnesota Supreme Court in 2010. And in 2017 fights over the budget led Governor Dayton to line-item veto the legislature’s funding. Getting to yes in Minnesota is increasingly more problematic.

The Causes of Dysfunction

There are several reasons for the increasing dysfunction in Minnesota politics, and they all played out in the 2019 session.

First, Minnesota’s partisan polarization mirrors national politics.  The two major political parties have polarized down to the point where they represent distinct geo-political regions in the state.  This polarization divides along the issues of the role and purpose of government, taxes, spending and social issues.  The Democrats and Republicans represent increasingly contrasting views about the world, and given the agenda of the House DFL and the Walz Administration, it was no surprise the Senate Republicans would oppose tax increases and other spending priorities.

With Minnesota as the only state in the national with a legislature split in terms of partisan control of the two chambers, rival views on government and what it should do were obviously going to cause problems.  Winner-take-all politics is a feature of the new normal; one-party wins it all and it simply moves its agenda.  Dayton and the DFL did that in 2013-2014, and no doubt Walz and the DFL are hoping 2020 elections do the same for them.

But partisan dysfunction is only one reason for the new normal.  A second problem may be that government has become so complex that the budget process is broken.  Maybe at one time the length of sessions was enough to put together a $1, 10, or even 25 billion budget, but it may simply be insufficient time to do it for a near $50 billion one with a part time legislature.

Third, as I have argued for nearly 15 years, the budget process is broken.  It makes no sense to have a fiscal forecast, do a budget (with often a previous governor), inaugurate a new legislature into session, wait several weeks for a gubernatorial budget, then wait a few more weeks for a new fiscal forecast and then a revised budget from the governor.  By the time all this occurs, the legislature has lost perhaps two months time.  How the budget is made, along with timings and deadlines, need fixing.

Fourth, legislators are human.  They are prone to the same procrastination as so many others are.   Tough choices often await final last-minute negotiations because humans simply prefer to avoid them.  There seems to be a dearth of leadership or ability to corral legislators to overcoming an institutional time-management skill problem.

Fifth the new normal is also a product of an increasingly flawed election process.  Single-member, first-past-the post elections encourage production of polarized safe legislative seats where individual representatives and senators have little incentive to work together.  Additionally, the state has done little in the last 20 years to address issues such as special interest money, lobbyist influence, and other structural matters than corrupt the legislative process.  The two major parties have become captured by group interests that effectively make compromise impossible, and our elections process only takes a bad problem and exacerbates it.

Finally, the new normal means that the electoral and political sting of legislative failure are gone.  There is such a low expectation that the governor and legislature will reach agreement on time that no one expects they will.  Repeated shutdowns, missed deadlines, and other political fights mean tht voters probably no longer punish representatives for special sessions, thereby meaning that legislative members too no longer fear it.

Conclusion Fixing Dysfunctionalism 

There is no single silver bullet to cure the above dysfunctionalism.  Reforming the budget process, campaign finance reform, and  ranked choice voting are among the needed cures.  Unfortunately, the  very reasons why the legislative process has become so dysfunctional and broken also bode against it being able to fix itself.  Maybe longer-term the fix is simply demographics, where an increasingly  urban state turns the state more DFL, allowing for one-party rule to prevail.    Yet it is not a certainty that demographics are a political destiny to cure dysfunctionalism–Trump and the GOP could be competitive in 2020 in Minnesota–leaving the new normal in place for years to come.

Saturday, May 11, 2019

On the Basis of Race? Making Sense of the Noor Verdict

Could a reasonable jury based on the facts have concluded that former Minneapolis Police Officer
Mohamed Noor was guilty of  a third-degree murder  and second-degree  manslaughter, or can the verdicts only be explained on the basis of race?  This is the question still being debated more than a week after a jury rendered its verdict. The question of how race factored into this decision or, more structurally, a variety of actions surrounding the Minneapolis police department and government make it difficult to render a clean answer.  However, to many, even if facially neutral, it is hard to account for what has happened unless race is considered.

As many who study policing can attest, the law favors them when it comes to the use of force.  Constitutionally, the standard of “objective reasonableness” in terms of whether an officer feared for his life or that of others is a high bar to overcome to find  police criminally liable for use of force.  Jurors are loath to second-guess police use of force, and often the victim of the force is someone accused or guilty of a crime.  A racially neutral argument is that few police are found guilty of use of excessive force is that the laws favors them and they used force appropriately.

A less than racially-neutral argument asserts that the reason why so few officers are charged and found guilty is because of race.  It is both the race of the officer (generally white) and the race of the victim (generally a person of color).  The racism is not necessarily individual and intentional, but it could also be institutional or societal. By that, the racism is not explicit or conscious, but woven into the fabric of our institutions, law, and society. Use of force by white police officers against people of color tells us something about whose lives matter in our society.

The Mohamad Noor trial was complicated. Three charges were brought against him, with convictions on two of them for third-degree murder  and second-degree  manslaughter. According to the judge’s instructions, a jury could find Noor guilty of third-degree murder if it concluded that
Noor caused (Ruszczyk’s) Damond’s death “by perpetuating an act eminently dangerous to others and evincing a depraved mind” without regard for life but also without intent to kill and was committed in a “reckless or wanton” manner understanding that someone may be killed.

For a second-degree manslaughter conviction, jurors needed to conclude that Noor demonstrated “culpable negligence,” that he was reckless, and created an “unreasonable risk” and knowingly took the chance of causing a death or great bodily harm.

Could a reasonable jury have concluded the facts supported these charges?  Perhaps so and from a racially-neutral perspective, the evidence was significant to overcome the high constitutional bar.

But too many other factors create problems for this case, making it look like the prosecution, conviction, and City reaction were all on the basis of race.  This is the first conviction of an officer for murder in Hennepin County if not Minnesota.  Contrary to other recent high profile cases such as the trial of Jeronimo Yanez (a Latino police officer) who was not convicted in the shooting of Philando Castile (an African-American), this was a person of color charged and convicted of killing a white female.

Second, the City of Minneapolis quickly settled the civil suit against them for a record $20,000,000 payout.  But on same day the Minneapolis City Council rejected settling a far less than rumored $100,000 amount arising out of the shooting of Jamar Clark (African-American) by a white police officer in 2015.  This action led federal judge Michael Davis to order the City to court to explain their behavior.  Third, after the Noor verdict, Minneapolis police officials called for a re-examination of their procedures.

It is possible all of the above could be explained neutrally and not on the basis of race. But for many, especially in the Somali community, while similar reactions or responses did not occur when it involved white officers and persons of color as victims.  Over the years there have been many allegations of police brutality but little call for reform until now.  Perhaps this is the privilege of being white and why black lives appear not to matter.

Friday, May 10, 2019

Republicans are Not Wannabe Democrats: What polarization really means

Republicans are not closet Democrats.  Slowly Governor Walz and the Minnesota DFL may or may not be learning this point.  What is the case is that what polarization means is that the two parties disagree not only on policy issues, but perhaps more fundamentally on the goals and purposes of government, with such difference not easy to bridge.
Too often Democrats seem to lament or exasperate to the effect of “When will Republicans come around and recognize the need to spend more on education, health care, or infrastructure?”   Or recently one Democrat opined “I will give Republicans one more chance to go along with spending more on roads and schools.”  Both of these sentiments naively assume that Republicans  share the same basic values, priorities, or view of government and eventually they will come along to the views held by Democrats or else.  Or else what?  What will compel them to agree with Democrats?  This is the problem Governor Walz and the DFL House is facing now.  “We won, we have the majority, you know we are right, you have to or will eventually go along with us at some point.  It’s inevitable.”
Such a belief is like waiting for Godot.  It may never happen.  Such a sentiment is premised on the idea that there is a basic consensus on certain things when in reality what polarization has come to mean is a breakdown on this agreement.
What does polarization mean?  Think of political consensus along five dimensions at least.  When James Madison and our Founding Fathers drafted the Constitution they were interested in a first-order question–Why government?  This is a question about the necessity of government and its most fundamental role in our lives.
A second-order question investigates the specific functions of government, asking not “Why government?” but “What should government’s do?”  This question looks to specific functions or tasks to be performed by the government. A third-level question is about ideology, querying “What values or interests should a government promote?” This level  looks to how majority preferences are translated into public policy or how the public interest is defined.  Finally, there are fourth and fifth levels the former investigating “What public administrators should do?” and the latter asking questions such as “How can public organizations or policies perform more efficiently?” 
Perhaps two generations ago there was broad consensus on the first and second-order questions.  In a Cold War era there was basic consensus supporting the welfare state and fighting communism.  There was arguably even significant overlapping consensus on third-order questions regarding what interests government should promote or what constitutes the public interest.  During this time the Republican and Democratic parties were ideologically diverse, with both containing  liberals, moderates and conservatives.  At one point in Minnesota a pro-life Democrat Rudy Perpich  and a pro-choice Republican Arne Carlson could be governors.  Those days are gone.
Where we are now is little consensus on third-order issues and increasing even on second and first-order views on government.  Partisan differences on the validity or legitimacy of the Electoral College attest to the depth of the partisan disagreement in the US, going to the very structures of how our political system is designed.
Republicans and Democrats are exasperated with one another and know the US is polarized.  Look to every major poll on the president, social issues, taxes, and other matters and the partisan split is significant.  Yet both sides seem convinced they are correct, the other side wrong, and if the other party simply came to its senses it would see their folly and the wisdom of the other side.
Slowly, but not quite yet, this is where Walz and the DFL are now in Minnesota.  It was entirely foreseeable after last November’ election Minnesota was headed to the stalemate they are in now.  Republican and Democratic Party priorities are far apart and there is little incentive for either side to compromise.  In fact, the polarization in Minnesota–like so much of the US–is geographic, and there are few regions or voters who swing.  Political attitudes have hardened and so have the constituencies and interest groups that support them.  US and Minnesota political institutions were premised on a belief of shared values across many levels, with legislation only possible with consensus or worse now, one party dominance in a winner-take-all approach to governing.
This is what polarization is really about now.