Why Are We Shocked the 2018 Minnesota Legislative Session Ended in Disaster?

Why anyone should be shocked that the 2018 Minnesota Legislative session ended as one of the least productive in the state’s history?  It would have been more shocking if the governor and the

legislature had been able to agree on anything.
The roots of the problems that explain the 2018 failure are both long and short term, as well as structural and unique.  Recall first that recent Minnesota history foreshadowed  what happened this year.  This year was yet another example of what can be called the “new normal.”  The new normal refers to a process dating back 20 years where special sessions, government shutdowns, and failed legislative sessions are the rule and not the exception.  The new normal in Minnesota reflects a changing political climate in the state that started about 20 years ago.  This is no longer a solidly DFL state.  As the shifting partisan control of the governor’s office and legislature have shown over the last 20 years, Minnesota is a politically competitive and divided state.  Clinton’s relatively narrow presidential victory over Trump in the state in 2016 demonstrated that. 
Look at a map of Minnesota. It reveals from the presidency down to legislative and local races clear patterns of DFL and GOP control.  More importantly, the two major parties are polarized along a range of issues ranging from health care, mass transportation, taxes, guns, abortion, and preschool funding.  The two parties are relatively equally divided in strength and along their values, making  compromise difficult.
Secondly there is a collective action problem.  There is a collective interest in compromising and reaching political agreement in a timely fashion, but there is little individual or partisan incentive to compromise. Among the 201 seats in the Minnesota legislature, no more than about 15-20 in the House and perhaps a maximum of 10 are from swing districts.  The remainder are strongly Democratic or Republican, representing districts where legislators are elected to stand firm onto their partisan views.  It is only those legislators who come from the s wing districts–those with a real chance to flip from one party to another–is there an incentive to compromise.  Strong partisanship in one of these districts is a political liability.   A paucity of swing seats means less pressure to compromise, and throw in strong party government in the state and even in those swing seats there is powerful pressure to vote straight party line.  Third, reinforcing this partisan divide is a money and politics issue.  By that, entrenched special interests spend heavily via lobbying, independent expenditures, and contributions to candidates, parties, and legislative caucuses, solidifying partisan preferences and making compromise nearly impossible.
The above three forces are structural and long term.  But there are also personality-driven, unique, short term forces that made it no surprise nothing really got done.  First, Governor Dayton  was a lame-duck presiding over a Republican legislature.  One should never have expected them to cooperate given what had transpired for the previous seven years.  But add to that a GOP angry that Dayton last year line-item vetoed their funding in an effort to get them to make some policy changes.  The Minnesota Supreme Court gave the governor a Pyrrhic victory that Dayton threw away the start of this session when he restored funding to the legislature. 
Dayton got nothing from his veto.  He should have demanded policy changes first before he restored funding.  In effect, that court victory that looked so good to Dayton did him no good.  Instead, it angered the GOP who effectively decided to ignore the governor in his last session.  He was not going to get anything he wanted and instead the Republicans were going to pass what they wanted and play to their base.  They forced the governor into vetoes, with the aim being that they will run against a do-nothing DFL this fall.  The GOP simply decided that it will show its base what it can pass if they elect a Republican governor, and it did what it wanted to do in 2018.  Thus, this session started with the governor’s veto and the 2018 elections hanging over it, guaranteeing little would be accomplished.
Finally, there is a leadership issue here.  While parties or party polarization may be strong, leadership is weak in the sense of being able to prevent individual members of the legislature from offering bills to appease interest groups or constituents.  Moreover, safe-seat legislators are less dependent on party leadership and can pursue or push special legislation, often without fear that leadership will punish them for it.  This happened in 2017 and it happened again this year. Additionally, it just does seem any of the principal legislative leaders or the governor have the leadership skills to move beyond partisanship.
Overall, we should no longer be shocked that gridlock has become a defining characteristic of Minnesota politics.  The state has become a microcosm of so many of the problems found at the national level, suggesting diminished prospects for Capitol cooperation for the foreseeable future.

Minnesota's Flawed Budget Process--The Case for Automatic Budget Resolutions

As the Minnesota Legislature reconvenes on February 20, it is important to remember at least one simple fact–the state budget process is flawed and the risk of future government shutdowns is more than probable.  That is why as a fail safe the state needs to adopt an automatic continuing resolution rule to keep the government funded in the event that the legislature and governor cannot reach agreement on funding.

There is almost no chance this year the state will have a government shutdown this year.  The budget is made in the odd-numbered years.  However if the governor and the legislature do not resolve funding for the latter, or if federal tax changes and the fiscal forecast show a deficit necessitating budget cuts, a crisis could precipitate a partial shutdown.  But in the last 20 years the state has experienced three partial shutdowns, more than any other state in the country.  Add to that overtime special sessions, constitutional battles over gubernatorial unallotments under Governor Pawlenty and line-item vetoes of legislative funding by Governor Dayton, and one can really conclude that the budget process is broken.  Yes increased partisanship and differing political priorities are a major cause, but in reality the root of the problem is an antiquated way to do the budget.

Starting back in 2001, I argued that the budget process in use was built for the horse and buggy days trying to operate in the 21st century. Government is so much more complex, the budget numbers so much larger, the functions more diverse, that it is perhaps impossible to reach consensus and make decisions between the beginning of January and ending on the first Monday following the third Saturday in May as specified by the State Constitution. These are deadlines from the nineteenth and twentieth centuries and reflect a different era for the state. There simply may not be enough time to do the budget by law in the 21st century.

            But think also how flawed the current budget process is right now.   We have elections in November. The state then receives a fiscal forecast at the end of November telling the governor what the economic assumptions and budget situation in the state will look like in the coming months.  The governor then finalizes a budget premised on these assumptions.  If there then is a new governor (as there will be in 2019) then that person finishes the budget of the old governor once taking office.

            Now the new legislature comes to work in early January and then it waits until late January or so for the governor to release the budget. Then they all wait until late February for the updated fiscal forecast. Thus, it is really not until late February or March that the work on the budget commences. And even then, there are separate hearings in the House and Senate, forcing conference committees to act. The budget also is really ten separate bills, with spending distinct from taxation, and no real work gets done until there are agreements on the different spending targets for each of the areas such as HHS, K-12, and so on.

            Sound confusing? It is. It is also inefficient. At least two months are wasted at the beginning of every budget cycle waiting for the governor’s budget, the fiscal forecast, and then agreement on budget targets. Now add more wrinkle–budgets are created right after state elections when often many new legislators or constitutional officers are elected. They are green, often learning on the job while creating a new budget. This is what happened in 2011 after the 2010 elections.  The same  was true in 2013 when the 2012 elections produced a legislature with at least 25% of the legislators being new.  It was also the case in 2014 when party control of the legislature shifted. These new legislators are barely in office, barely understand the state government when they are asked to review the budget.  This makes no sense. In a distant past when life and budgets were less complicated (and smaller), perhaps it was possible to do all this with a part-time citizen legislature. But those days have passed. A new budget process is needed, with new time lines and ways to move the work along.

            Is there a better way to do the budget?   Again, since 2001 I have argued that the current budget process is backwards and that a new mechanism is needed.  Many of these reforms are found in our neighbor state of Wisconsin.  What are these reforms?

            In Wisconsin there is a joint House (Assembly)  and Senate committee that does the budget.  It is one bipartisan committee and not separate committees in the two chambers as in Minnesota.  Moving to create one budget with one committee primarily but not exclusively responsible for it is a necessary correction and centralization to the highly decentralized process that currently occurs in Minnesota.  Additionally link the budget and tax bill together.  Spending and revenue need to be connected.

            But in addition, one of the best ideas from Wisconsin is that of an automatic continuing resolution.  By that, if the budget is not passed on time in Wisconsin then the existing budget continues in force until the budget is agreed to.  This reform alone would prevent a shutdown.  Recently Randy Jessup has introduced such a bill.   Revenue Commissioner Myron Frans does not support this idea, but appears open to other reforms to get the budget done on time.   I disagree with the idea that the resolution only funds the state at 90% level (it should simply continue funding at the current level) because such a mechanism could be used for political purposes to force budget cuts, but the basic idea is good.

            There are other possibilities for reform.  One would be to pass the Truth in Budget Act. It would do two things.  First, it would undo the current asymmetry or stupidity in the law that counts inflation for the purposes of revenue but not obligations in Minnesota.  This law dates back to the 2002 when Roger Moe and Tim Pawlenty, in running for governor while they were still in the legislature, creating the gimmick to avoid having to deal with the real budget problems during the election.  The Truth in Budget Act would also ban spending shifts (shifting spending obligations past July 1, to push the matter off in the next budget year) and “borrowing” from schools and other entities with the false claim of paying them back in the future.  These are truly gimmicks.

            But even other reforms could take place.  Why should the legislature do the budget in the odd years right after the election?  Why not move the budget year to the even years and give legislative members a year to learn about the state government before tacking it?  Other possibilities include changing the timing of the budget, or when the legislature is called into session.  Instead of the legislature coming into session in early January, then waiting for the governor’s budget and then the fiscal forecast, change the timing of one or all of these to create a process that makes more sense.

            The point here is that there are many ways to fix the budget process to avert future government shutdowns.  Up until now the backup to solving budget impasses has been to let the courts order temporary funding.  It is not so clear that the Minnesota Supreme Court will bail out the political process in the future.  The budget process needs to be fixed and a good starting point is with adopting an automatic continuing resolution process to make sure the state does not shut down in the future.

January 3, 2018–A Day of Constitutional Infamy in Minnesota Politics

January 3, 2018 might turn out to be one of the most important days in recent Minnesota history, both in terms of politics and constitutional law.  For it is on that date that Tina Smith takes over for Al Franken as US Senator, potentially triggering a major constitutional battle, and Rebecca Otto has oral arguments before the Minnesota Supreme Court in a case that will decide the power of the State Auditor.  These two events are part of a broader political battle in Minnesota politics that now engulfs the state constitution.
Minnesota is no longer your grandfather’s state where the Democratic Farmer Labor Party ruled.  While Minnesota remains the most loyal of Democratic states in terms of presidential politics by not having gone for a Republican since 1972 with Richard Nixon, it is otherwise a state that is partisanly divided.  Republicans control the legislature; the congressional delegation is split by parties, and Donald Trump nearly beat Hillary Clinton in 2016, coming within 50,000 votes of flipping the state.  Clinton won only nine counties in 2016, Dayton as governor won only 37 of the 87 counties in 2014, and in general the political geography points to a state hotly divided between  Hennepin, Ramsey, Olmsted, and St. Louis counties and the rest of the state.  Democrats have lost the farmers, and the dwindling density of the percentage of the state collectively bargaining means that it too may soon lose what is left of labor.
The partisan divide ha produced a polarization that has wrecked havoc on Minnesota.  It has included government shutdowns and repeated special legislative sessions that are no long special but the new normal.  But the intensity of the political divide has over the last decade, and especially in the last two years, taken the state to the level of constitutional fights.  When the Minnesota Constitution was significantly overhauled in 1972 it provisions were the product of the political consensus of the times, reflecting shared understandings about how the state and it various entities should work.  That shared consensus and understanding is gone, and with it the glue that held together state politics and the constitution.
Perhaps the first case in this new era of constitutional politics  was Brayton v. Pawlenty, 781 N.W.2d 357 (Minn. 2010), challenging the authority of the governor to use his unallotment powers to balance the budget when he simply disagreed with what the DFL Legislature wanted to do.  Then there were the 2011 Ramsey County Court decisions In re Temporary Funding of Core Functions in the Executive Branch of Minnesota and  In re Temporary Funding of Core Functions in the Judicial Branch of Minnesota that allowed for the funding of the state government even though there governor and the legislature had not agreed on a budget.  In 2012 the Republican Legislature was unsuccessful in its attempt to bypass the governor and amend the Constitution to change the law regarding voting and same-sex marriage. And last year the State Supreme Court failed to resolve the constitutionality of the governor’s use of the line-item veto to eliminate funding for the state legislature in response to their passage of budget bills he did not like.   While the Court did not officially rule in favor of Dayton in Ninetieth Minnesota State Senate v. Dayton, 903 N.W.2d 609 (Minn. 2017), it effectively acquiesced this use of the line-item veto because the legislature was not without resources to act.
All this brings us to January 3, 2018.  Most notably the date will be known as the one where Senator Al Franken was replaced as US Senator by Lieutenant-Governor Tina Smith who was nominated to that post by Governor Dayton.   This leaves a vacancy in the Lieutenant-Governor’s position and according to Article V, Section 5, of the Minnesota Constitution: “The last elected presiding officer of the senate shall become lieutenant governor in case a vacancy occurs in that office.”  That would make it Senator Michele L. Fischbach (GOP)  who would become Lieutenant-Governor, creating a vacancy in her position and necessitating a special election for her senate seat under Article IV, Section 4, of the Constitution.   Except that Fischbach does not want to give up her Senate seat and she and Republicans are trotting out a Minnesota Supreme Court decision State ex rel. Marr v. Stearns, 72 Minn. 200 (1898) as precedent to allow her to retain both her senate and lieutenant-governor seats.  There are lots of good reasons to think that precedent is bad law,  including the fact that some of the constitutional provisions at play in that decision were repealed  by amendment in 1972.
But the validity of the precedent is immaterial, as is who really fills the lieutenant-governor vacancy.  The case is about politics.  Democrats hope that forcing Fischbach out might shift the balance of power in the Minnesota Senate slightly, which was controlled 34-33 by the Republicans after the  2016 elections and which now is 34-32, pending a special election to replace a DFLer who had to resign.  Assume Democrats win the seat, forcing Fischbach out shifts the Senate to 33-33.  Once Fischbach becomes Lieutenant-governor, look to see a lawsuit filed to challenge her ability to hold both positions.  With a Dayton-appointed majority on the Minnesota Supreme Court, she will lose.  But the timing of the litigation, when a decision is issued, and when a special election occurs may all impact the Senate balance of power.  And at the end of the day, forcing Fischbach and Republicans to spend money to litigate and run for her seat again (Fischbach has said if she is forced out of her Senate seat she will run for her Senate seat again in a special election and if she wins will then resign as Lieutenant-governor) is worth it to some DFLers.
The other major January 3, 2018 event is Otto v. Wright County.  Here oral arguments will be heard challenging the authority of the State Legislature to take some audit authority from the State  Auditor by allowing counties to hire their own private auditors.  The case raises important constitutional law questions about separation of powers (may the legislature remove some powers from a constitutional office without undermining its core functions) and perhaps the single-subject rule (since the provision that authorized this was snuck into a larger bill with a variety of assorted and arguably unrelated provisions).  Otto v. Wright County has looming and important constitutional questions that will affect the state, but this case too was rooted in petty partisan and possibly intra-party fights that were meant to damage Rebecca Otto’s political ambitions.
Look for more constitutional battles in 2018 and beyond.  These battles will take the form of litigation and constitutional amendment.  These battles are the product of a political consensus that has broken down, challenging the norms and shared understandings that held state politics together for the last 50 years.

Tina Smith, Michelle Fischbach, and Minnesota Constitutional Politics

The selection of Tina Smith by Governor Mark Dayton to replace Al Franken as US Senator is degenerating  into a political fight that ultimately may require the Minnesota Supreme Court to decide whether Senator Michele Fischbach gets to keep her seat in the Senate.
Here is the issue.  Al Franken’s resignation from the US Senate, triggering Minnesota Statutes  §204D.28, allowing Governor Dayton (DFL) to replace Franken.   Dayton picked his Lieutenant-Governor to replace Franken, thereby creating a vacancy in that office.  According to Article V, Section 5, of the Minnesota Constitution: “The last elected presiding officer of the senate shall become lieutenant governor in case a vacancy occurs in that office.”  That would make it Senator Michelle L. Fischbach (GOP)  who would become Lieutenant-Governor, creating a vacancy in her position and necessitating a special election for her senate seat under Article IV, Section 4, of the Constitution. 
Except, does Fischbach have to vacate her Senate seat?  Democrats argue yes, pointing to two clauses in the State Constitution.  The first is Article III, Section 1 stating that:

The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.

The second is Article IV, Section 5, declaring that:

No senator or representative shall hold any other office under the authority of the United States or the state of Minnesota, except that of postmaster or of notary public. If elected or appointed to another office, a legislator may resign from the legislature by tendering his resignation to the governor.

Taking a plain language reading of the Minnesota Constitution, DFLers contend that Fischbach  must  assume the position of Lieutenant-Governor and vacate her position as state senator.  It seems open and shut, except Republicans say it is not.  They contend first that the reason Dayton picked Smith was to force a Republican vacancy in the Senate, hoping in a special election to flip the 34-33 GOP majority into DFL control.  Republicans are conjuring up images of DFL political chicanery in hopes of repeating the Minnesota Massacre sweep of the 1978 two US Senate, governorship, and legislative races again in 2018. 
But Republicans also claim law is on their side, citing to the Minnesota Supreme Court’s State ex rel. Marr v. Stearns, 72 Minn. 200 (1898).  In that case the legal issue was a challenge to a decision by an Aitkin County auditor to tax three railroad-owned properties, pursuant to a state law.  In challenging their taxation, one argument was that the state senate did not adopt the legislation by the required majority vote as required by the State Constitution.  Specifically, Honorable Frank A. Day, who voted for the bill, and whose vote was necessary to pass it, was not then a senator, and his vote thereon was void.
  According to the Court, Day was elected as a senator from the Sixth senatorial district of this state for the term of four years, commencing January, 1895, and on January 25, 1895, became president pro tempore of the senate. Six days thereafter, Gov. Nelson resigned, and Lieut. Gov. Clough became governor; and thereafter, and until the close of the Twenty–Ninth session of the senate, Mr. Day performed the duties of, and acted as, lieutenant governor. He also, until the close of the session, continued to act and vote as senator, with the tacit approval, at least, of the Senate.
In rejecting the claim that he had left the Senate and became Lieutenant-Governor the Court rejected arguments that either Article III, Section 1 or Article IV, Section 5 forced Day out of the Senate.  The Court argued that in interpreting all of the state constitutional provisions as a whole, there was no explicit or clear language that said the senator must resign.  Additionally, the Court also noted how Article VIII which discusses impeachment excludes the lieutenant-governor from being impeached as an officer, suggesting that this person remains a senator.  Finally, the Court noted that the impeachment clause specifically excluded the Lieutenant-governor from serving or voting when the governor is impeached.  Providing for this specific exclusion is proof for the State ex rel. Marr v. Stearns that the Constitution, taken as a whole, means that the presiding officer of the senate of vacates that seat when becoming lieutenant-governor.
State ex rel. Marr v. Stearns is an interesting precedent, but is not convincing.  First, the Court’s real holding in the case was about taxation and not on the matter of whether the president pro tempore of the senate loses his senate seat when becoming Lieutenant-governor.  The latter issue was collateral to main issue.  Second, in the nineteenth century Minnesota and other states court applied the “enrolled bill” doctrine, a presumption that the judiciary would not second guess how the legislature did its business or count its votes.  That doctrine is mostly dead now.  Third, the decision in State ex rel. Marr v. Stearns was overturned by the US Supreme Court in Stearns v. State of Minnesota, 179 U.S. 223 (1900).  While the US Supreme Court cannot overturn the Minnesota Supreme Court’s own interpretation of our Constitution, the former’s decision clearly erodes the authority of State ex rel. Marr v. Stearns as precedent.
But the strongest reason to why State ex rel. Marr v. Stearns is not good law is that the Minnesota Constitution has been significantly amended since that decision.  For example, back in the original Constitution (Article V, Section 6), the Lieutenant-Governor was named ex-officio president of the senate.  This is no longer the case as a result of constitutional amendment.    Back in State ex rel. Marr v. Stearns one could argue that the specific language of the Constitution blended the Lieutenant-Governor into a position that stood as an exception to Article III, Section 1 or Article IV, Section 5.  That is no longer the rule or the case today.  Yes the current Constitution fails to subject the Lieutenant-Governor to impeachment, but that is an oversight in the amending process.
Thus, the current constitutional basis for the Court’s decision in State ex rel. Marr v. Stearns is questionable on many fronts.  If the GOP were to bring their case to the Minnesota Supreme Court there are many reasons to doubt the validity of this old decision.  Finally, given that a majority of the Minnesota Supreme Court is now Dayton appointees, and given how they ruled in the line-item veto case, the prospects of the Republicans winning and allowing Fischbach to stay in the Senate are bleak.

A Tale of Two Senate Seats: What We Learned from Alabama and Minnesota

Doug Jones defeats Roy Moore in Alabama and Mark Dayton picks his Lieutenant Governor Tina Smith to replace Al Franken in Minnesota.  What should we infer or conclude from both?  Far less than the national and local media and most pundits will assert.

Alabama
On one level Roy Moore’s loss is about one seat in one state.  It is about a twice-removed state Supreme Court Justice accused of child molestation, repudiated by much of the Republican
establishment including Richard Shelby, losing to a moderate Democrat in a close special election.  The Democratic Party and then media will proclaim this is a repudiation of Donald Trump and Steve Bannon, and that it is a referendum on both that portends well for the Democrats in 2018.  Don’t bet on it.  Every time there is a special election everyone wants to generalize or argue that it has broader significance.  Remember at the end of the day Tip O’Neill was right–“all politics is local.”
In so many ways the Jones-Moore race was atypical.  There are not too many times Democrats are going to run in 2018 against an accused child molester with crank views about religion and the Bill of Rights.  Given all his liabilities, the race should have been a blow out.  It took such a horrible candidate repudiated by his own state Republican Party for a Democrat to win barely.  Take little solace in that. 
Next year there will be 35 senate races when Democrats having to defend  25 seats and the GOP nine.  Democrats will need to hold all their seats and win two Republican ones to control the seat.  They also need a perfect storm to win back a gerrymandered controlled House and to make significant inroads into recapturing the governorships and state legislatures lost over the last few years.  Yes opinion polls favor generic Democrats for Congress, Trump’s approvals are low, and the opposition party to the president in off-year elections historically does badly.  But Democrats often  do not show up in midterm elections and as of yet the Democratic Party has not constructed an alternative narrative to Trump’s to why they should be elected.  In defeating Moore their rationale for winning is that he is a creep.  Hardly a winning message for 2018 even against Trump.
Potentially what is significant is that the Democrats did crack the solid Republican South and elected their first Alabama senator in 25 years.  Maybe–just maybe–Jones offers the type of candidate that Democrats can win in the South.  Maybe we saw with Black turnout what the Voting Rights Act can really do.  Maybe the South, especially the urban areas and the changing demographics, suggest  changes that a longer term and more structural.  But determining all that is too soon to tell and Democrats should not get their hopes up too soon.  Demographics are not destiny, and local races against bad candidates cannot be exemplars for other local races across the country.

Minnesota
After a week of drama Dayton selects Tina Smith to replace Al Franken.  Dayton could have done something bold and build for the future of the Democratic Party in Minnesota but he opted for predictability and loyalty in selecting Smith.  This is who he was rumored to want a week ago,
perhaps or not turning his back on pressures from various constituencies both local and national to  select someone else.
But besides picking Smith out of predictability and loyalty, perhaps he also selected her for another value–competence.  Rarely do we discuss competence as a trait among candidates for office, but in Smith we get someone who is a real public policy person.  She is less about politics, campaigns, and elections, and more about tax policy, governance, and legislation.  She is all that Hillary Clinton was without the baggage.  Whether in a Trump era competence is the type of trait that is electable in 2018 is a matter of speculation and one will see if she faces challenges from within the DFL.  But even if she does not, her 2018 special election will attract millions of dollars and outside national interest.  It would be nice if she could simply run on being competent and smart but too few candidates–and especially women–can do that.  Our pop culture dislikes intellectualism–historian Richard Hofstadter told us that years ago–and smart women are threatening to many.  Smith in running for reelection will need to figure out how to run without making the mistakes Clinton made, simply being competent and smart it not enough, and she will also need to provide a narrative why she deserves to fill out the remaining two years of Franken’s term.
Finally, she needs to address a growing parochialism setting in among many Minnesotans and especially DFLers.  There is a growing resentment that Chuck Schumer told Minnesotans that Franken had to go and therefore they were telling the state who our senator should be.  There is some truth to that, but in the end, Franken had to go.  Six to eight allegations of sexual impropriety, collapsing poll numbers for his support in the state, his inability even in his resignation speech to appreciate what he might have done all suggest that Franken had lost the ability to legislate.  We should worry about how “accusation equals guilt” is creating a new Salem witch hunt, and yes what he was accused of doing is different from that of what brought Roy Moore down. 
But character does matter and Franken’s brought him down, for good or for bad.  The issue is not a lack of due process, the issue was his inability to provide a reasonable accuse or account for his behavior. The court of public opinion is not a real court. For those who said he deserved his day in court (or before the Senate Ethics Committee), the same could have been said about Roy Moore.  Insisting on full due process for Franken would have required the same for Moore and everyone else  charged with anything else on the campaign trail. 
         Good or bad, in a representative democracy voters and public opinion rule.  Elected officials compete in the marketplace of ideas for vote and it should not usually if at all be that courts and trials decide the truth or veracity of claims.  Maybe that is the lesson that should be generalized from Minnesota and perhaps Alabama.

And the winner is: Why Mark Dayton should pick Melisa Franzen to replace Al Franken

Speculation is at a fever pitch regarding who Governor Dayton should select to replace Al Franken as US Senator.  There are many contending interest groups, constituencies, and factors that are being articulated.  But at the end of the day if the goal of Dayton and the Minnesota DFL is to pick someone who can win and hold the set in 2018, then State Senator Melisa Franzen is his best choice.
There is no correct criteria or criterion that should drive or determine Dayton’s choice to replace Franken.  There are many competing factors.  Should it be someone who will be able to win in 2018, or should it be a caretaker, someone not interested in running for fear that if Dayton politicizes the choice it runs the risk of a rerun of the 1978 Minnesota Massacre when Governor Anderson effectively chose himself to replace Senator Mondale who resigned to become vice-president.  That decision 40 years ago led to both US senate races being won by Republicans, as well as the Governor’s race and the loss of the state legislature.  It is unlikely that such a scenario will reoccur, unless the DFL is so self-serving that it backfires.
Others are arguing that given the reasons why Franken is stepping down (allegations of sexual impropriety), the choice has to be a woman.  Others say it is not just a woman, but a woman of color.  Or perhaps it should be someone of color, regardless of gender.  Or maybe it should be someone who can raise the millions of dollars it will require to win.  Or maybe it requires someone who can hit the ground running when taking office so that the person can dive into the complex policies issues he or she will face.  Or maybe it should be someone who represents the future of the DFL in the state, or someone who will satisfy other state political criteria.
Conversely, there are some in Washington, D.C., who are pressing perhaps for other national factors to be considered.  Listening to Chuck Schumer and the Democratic Senatorial Campaign Committee would be a mistake.  For Speaker of the US House Tip O’Neill once said: “All politics is local.”  Never forget that.  The Democrats nationally and the DFL in Minnesota err in going with cookie-cutter approaches to politics and that is why they lose.  Those in Washington are clueless to what drives Minnesota politics.
I still remember back in 2002 when Wellstone died.  I did a ton of interviews and was asked who the DFL should pick to replace him and I said Judy Dutcher.  She had run for governor and was pushed away with an appeal to seniority and that it was Roger Moe who deserved it.  That worked out well.  However in one interview with the Wall Street Journal a reporter–less than an hour after Wellstone died–told me the Washington consensus was it had to be  Walter Mondale.  That worked out well–picking an aging politician who represented that Minnesota of the past.
So who should Dayton pick?  Assume first that you want someone who can win in 2018.  Second, pick someone who is young and represents the future of the party.  Third, pick someone who  has come from a swing district and proven to be able to raise money and appeal to swing voters.   Fourth, pick someone who is not white, acknowledging that the future of Minnesota is multi-cultural.  Finally, pick someone who is a good speaker, who appeals to suburban women (a critical swing demographic), and who is a smart and quick study.  Put them all together and the choice is State Senator Melisa Franzen. 
I am not endorsing anyone and have no influence in the DFL or with Mark Dayton in terms of who should be selected.  However Senator Franzen is a two-term Minnesota Senator who is from Puerto Rico.  She is young, comes from an affluent swing district in Minnesota, and who meets all the criteria above.  I have been at several forums (such as the Edina League of Women Voters) where both of us were speakers.  She is personable, a terrific speaker, and smart.  In my opinion, she would  be a great selection for Dayton and should be given serious consideration.

Dayton v. Legislature: The Minnesota Supreme Court Punts

The  Minnesota Supreme Court's Dayton v. Ninetieth Minnesota State Senate and the Ninetieth House of Representatives was not a decision, it was a  punt.  The Supreme Court did not really decide the case in favor of Dayton or anyone, contrary to what the media reported; instead it pushed it down the road, hoping to avoid having to make the real decision.  It did so perhaps to avoid revealing  something deeper and more troubling in the case–a Court that is divided politically by the case with Dayton appointees voting for him, the other Justices against him.
The Dayton non-decision had something for everyone, and both the governor and he legislature can claim to be winners.  It both declares that the governor’s line-item veto of the legislature’s funding is constitutional but in the very next sentence it says this “conclusion does not, however, end the matter.”  The Court then describes how the Constitution requires three functioning branches and then the governor and the legislature are ordered into mediation to resolve disputes over funding and perhaps other matters.  The Court notes the tension between the two conflicting provisions of the State Constitution yet it never  resolved it.  This is the essence of judicial review, and the Supreme Court punted at the most critical spot.
The Court really did not want to decide the case and it made that clear when it stated that:  “The other Branches should resolve these doubts through the political process.”  The real decision here was to declare this dispute a political question, one that the Court did not have to or consider legitimate to decide.  In ordering mediation, the Court hopes that the two sides will work out their differences.  Paradoxically, one has to wonder whether the Court can order them into mediation, especially given that this is the same Court in oral arguments and in this decision which questioned whether it had the authority to order temporary funding when the governor and the legislature are deadlocked.
Another sign that the Court did not really decide the case–there was no vote.  This was an order signed by the Chief Justice.  The Minnesota Supreme Court can issue per curiam unsigned opinions, but they generally only do so when very divided and all they can agree on are some basic points.  This is what happened here.  One hypothesis is that the four Dayton appointees wanted to rule for him, the other Justices against him.  A Minnesota Supreme Court ruling for the governor  with votes supplied simply by his appointees and divided by political party and who appointed the justices would have done lasting damage to the Court and questioned the legitimacy of the decision.  Thus instead, the Dayton Justices got a part of a decision that said the governor should win, the other Justices favored the Legislature, and the political deadlock on the Court produced an opinion with language to make everyone happy while not deciding the case.
Institutionally this non-decision may have been the best choice for the Court if it wishes to  protect it political and legal legitimacy.  Yet for those hoping that the basic constitutional questions would be resolved, it was not. And for those worried about the Minnesota courts becoming politicized, this case speaks to a potential fear that the Supreme Court may be at that point.

No Surprise, Dayton Loses: The Legal and Political Implications

It should come as no surprise that a Ramsey County judge ruled that Governor Dayton’s line item veto of funding for the state legislature violated the Minnesota Constitution.    But with that decision, the respective powers of the three branches of government are reshuffled, leaving the governor in a far weaker position than it was before, both in the short and long term.
Dayton’s line-item veto was at best ill-advised, at worst a foolish political gambit with enormous political and legal implications.  Dayton’s use of the veto demonstrated how the legislature  had politically outmaneuvered him once again.  Not willing to take the chance of another government shutdown, Dayton refused to use his veto on several of the omnibus bills, thereby throwing away his most potent weapon to force the Republicans to do what he wanted.  Dayton blinked, signed the bills, and then used the line-item veto to try to force the legislature to do what he wanted, as evidenced by the memo he sent to them describing why he did what he did.  This memo would come to haunt him in the final court decision.
During oral arguments it was clear that the governor’s attorney was on weak ground.  As I tell  my law students, never make a legal argument asserting that you have unlimited discretion to act.  That was essentially the governor’ position–there was no limit on the power of the governor to use the line-item veto.  Unbridled discretion is never a good argument.
No surprise then  in the ruling by the judge.  Minnesota case law was clear that one branch or part of the government could not take action that would impede or prevent another constitutionally created branch of the government from performing its constitutional functions.  Second, in the original court hearing and its preliminary decision a few weeks ago the judge strongly hinted that the governor would lose.  Thus, from a legal perspective this opinion is not a shock or surprise.
Longer term, the implications here are interesting.  Between this decision and the Brayton  v. Pawlenty decision from a few years ago when the Court ruled against the governor’s use of his unallotment authority to balance the budget and end the legislative session,  decision a few years ago, the power of the Minnesota governor vis-a-vis the legislature is now weaker.  In both cases the governor overplayed his hand and now the courts have placed limits on what the governor can do on his own.  In both cases governor’s acted impulsively, in both cases they were ruled against.  The  two cases limit the constitutional powers of the governor.
At the same time, both of the cases strengthen both the legislature and the courts.  In the case of the legislature, it is stronger s a result of the governor’s constitutional wings being clipped and because it emboldens them to act and take more chances in the future.  The judiciary is stronger because it yet again became the final arbiter of who has power and how Minnesota government works.  Not only does this decision reinforce the notion that the Minnesota Courts get the final say on what the state constitution means, but with this decision they got to decide how to allocate political power in Minnesota.  This decision redrew the lines of separation of powers in Minnesota.
Short term, Dayton now is even weaker going into his last year than he was before, and Daudt even stronger, thereby enhancing his status as a gubernatorial candidate.   The decision has huge implications for the 2018 governor’s race.  Notice how Attorney General Swanson stayed out of this  case–she was smart politically not to defend the governor in a case she must have known he would lose.
Finally,  notice how the DFL Legislature sold out the governor.   Dayton’s use of the line-item veto was also a result of the Republicans’ flagrant violation of the single-subject clause in the State Constitution.  Dayton could not argue that point in his defense because he signed the bills he objected to.  However, if the Democrats had raised a single-subject objection to the bills in a separate case, it would have been possible for court to join the line-item and single-subject arguments together.  Historically, the two clauses have common histories in terms of their goal in policing legislative corruption and abuses.  Yet while John Marty tried to get support for this challenge, his DFL colleagues failed to support him, demonstrating how much the political and legal interests of  them and Dayton had departed.  What will be interesting to see is the political fallout of this failure to support the governor, both in the remainder of Dayton’s term and in how it plays out for the 2018 legislative and gubernatorial elections.

Minnesota's Constitutional Crisis

Minnesota is in the middle of a constitutional crisis.  As is true with most constitutional crises, it is a crisis precipitated by a political crisis. The political crisis is battle between the legislature and the governor, rooted in political disagreement and polarization, and where it is about ready to engulf the Minnesota Supreme Court.

            The constitutional crisis has been long coming.  It is rooted in the change in Minnesota politics that began 20 years ago—perhaps marked when Jesse Ventura won the governorship and the Republicans the House.  That point represented the point when DFL domination in the state since the 1960s ended, and the emergence of Minnesota as a state increasingly torn by the political cultures of urban liberals and rural conservatives.  The DFL has lost its farmer leg, and it is becoming clear that as Trump Democrats have fled the party, it is also losing labor.  

             Since 1998 special sessions have become the norm—three for every four years—and there were partial or near shutdowns in 2001, 2005, and 2011.  In 2009 Pawlenty used his unallotment power to balance a budget and end a legislative session.  In all these instances, the Minnesota Courts had to step in to resolve political disputes.  All these instances point both not only to the political forces dividing Minnesota, but all were examples of constitutional crises; specifically, what to do when the political process breaks down and fails to perform according to the procedures outlined in the State Constitution.

            Now we have another and more glaring constitutional crisis. It appears to have started on Tuesday, May 30, the when governor announced that he was signing all the budget bills after yet another special session.  Yet, the state constitution gives the governor the right to line-item veto specific budget items. The governor chose to line-item veto the money that would fund the state legislature for the next two years.  The governor said he was doing this for two reasons.  First, he did not like what he called a “poison pill” provision in the tax bill that would defund the Minnesota Department of Revenue if he vetoed that bill.  Second, in a letter to the legislature he said that he would only authorize funding for the legislature’s operation if they agreed to specific changes in the budget bills he signed.  This would necessitate yet another special session.

            This battle has triggered a major political and constitutional battle in Minnesota politics.  One constitutional question is whether the legislature can defund a state agency many deem essential without violating the State’s separation of powers or single subject clauses in the constitution.  Conversely, can the governor use his veto to defund the legislature, also without violating this clause?  These constitutional questions form the context for perhaps a major political battle and negotiations, but it is also certain that the Minnesota Supreme Court may be asked to settle these questions, as it looks as if the state legislature is going to the court to sue the governor. 

In addition to the legal battles between the governor and the legislature, this week the Minnesota court of Appeals upheld a law passed by the state legislature two years ago that stripped away some of the powers of the State Auditor by giving counties the discretion to hire private auditors.  This legal battle raises separation of powers issues, but also questions regarding the State Constitution’s single-subject rule which mandates that legislation may only incorporate a single-subject.  The law removing some of the Auditor’s powers was included in another larger bill.

While Dayton’s line-item veto is the immediate cause of the constitutional crisis, flagrant violation of the single subject rule by the legislature is the real culprit.  Historically, the single-subject clause and the line-item veto are connected and rooted in fear of legislative mischief that corrupted state legislatures across the country.  Back then state legislatures were hotbeds of graft, corruption, and political shenanigans.  The single-subject rule was adopted in many states, including Minnesota, to prevent voter confusion, log-rolling, and the slipping into major bills extraneous provisions under the cover of darkness.  If the single-subject provision was unable to police the legislature, giving governors a line-item veto would allow them to extract improper appropriation provisions from bills.

The stripping away of the State Auditor’s powers was attached to a larger unrelated bill under the cloak of darkness.  The same can be said about the legislature’s poison pill in the tax bill.  But even if they were not hidden as the Republican legislative leaders contend, they still violated the letter if not the spirit of the single-subject rule.  They also point to how leadership has failed to enforce germaneness rules that would keep policy and appropriation bills separate.  Viewed in this context, the governor’s line-item veto was constitutionally under-minded.  Yes, Dayton could have vetoed entire omnibus budget bills, but that would have triggered another political and constitutional crisis in terms of another governmental shutdown.  No matter the choice Dayton faced, there was a constitutional problem.

Viewed in isolation Dayton’s line-item vetoing of the legislature’s funding is constitutionally wrong.  He cannot use that veto to negate or undermine the authority of another constitutionally-explicit branch of the government—this is a major separation of powers issue.  Yet if the only lawsuit filed is one by the legislature then that may be the decision the Minnesota Supreme Court is forced to bring.  However, there needs also to be a lawsuit brought by legislators—and Senator John Marty is contemplating one—raising the single-subject rule to many of the omnibus bills passed this term.  They should also join the State Auditor in her appeal to the Supreme Court.  Why?  If the Court is given the opportunity to rule on both the line-item veto and the single-subject rule then it would perhaps be able either to join the cases or resolve them in a way that defines the proper limits on what the legislature can do, thereby also drawing lines regarding what the governor can do.  Defining the limits of the single-subject rule and the line-item veto would then also clarify the separation of powers issue.

Of course, the Supreme Court could take another approach-refuse to grant jurisdiction to the Republican challenge to the governor, ruling the matter a political question for them to work out.  While at one time that would have been a viable solution, prior Minnesota court decisions to fund the state during a shutdown, over unallotment authority, and even over the single-subject rule make that option nearly impossible.  The constitutional crisis already has engulfed the state court system and it is not clear it can simply walk away.

Governor Dayton is Correct: The Lessons of Private Prisons–Don’t Do It!

Note:  This is a preview of an op-ed of mine that will appear in Minnpost next week.

Private prisons are a major public policy mistake.  Contrary to their supporters, they are not less expense and better than public facilities.  Instead, their track record on cost, rehabilitation, and safety are generally inferior to public facilities, and their use has been to facilitate a war on drugs and petty crimes that has been racially discriminatory.
The debate to reopen a private prison in Appleton, Minnesota is reminiscent of one that took place 18 years ago.  In 1998 Minnesota was building a new correctional facility in Rush City.  State Senator Randy Kelly pushed hard for it to be privatized.  I was part of a team of impartial national experts at the Institute of Criminal Justice at the University of Minnesota Law School hired by the State to research what we then knew about the performance of private prisons across the country.  We looked at cost, recidivism, rehabilitation, safety, and legal  issues. We examined all of the studies  that then had been done on private prisons, we did extensive interviews across the country, and we toured public and private prisons. The final 1999 report, Privatization of Correctional Services:  Evaluating the Role of Private Prison Management in Minnesota, was sharply critical of the claims made by its advocates for privatization.
Initially there is a significant ethical and moral question regarding whether the punishment of crimes and offers should be done on a for-profit basis.  This is human exploitation at its worst.  One can also argue that the use of punishment and force by private individuals against another is inherently a governmental function and not something that should be privatized.  Our report raised these questions, but it went beyond the normative considerations to the empirical–what was the actual track record of private prisons, especially when compared to publicly-operated ones?
First, we found that many of the claims of cost savings were widely aggregated.  The stand measure of cost for prisons–per diem costs per inmate–did not always stand up.  Yes in some cases private prisons were less expensive per diem, but not always.   For example, in the State of Oklahoma where publicly-operated prisons had to compete with private operators for contracts to run individual facilities, the public institutions came out less expensive about half the time.  Cost was a wash.  But even here the numbers failed to reveal hidden costs.  In most of the contracts awarded to private prisons, the state was still on the hook for many medical expenses and it would be required to take back control of the prisons as a result of default or to deploy security in event of  riots.  Public dollars subsidized private prisons to make them profitable and look like they were cheaper than the public facilities.  Additionally, by the time one added in the public dollars to oversee and regulate the private prisons the savings to the taxpayer disappeared.
We also found that there were costs associated with the savings.  The areas where private prisons saved money was in first in terms of salary and skill level for corrections officers.  Public  facilities were generally well paid unions jobs that demanded a minimum skill level.   Prison privatization across the country often was a union busting activity that hired less skilled officers at much lower wages.  Second, private prisons scrimped on educational and rehabilitation services.  Third, they scrimped on everything else, leading, in the case of Oklahoma, to contracts than ran a hundred pages or more so as to require private operators to provide a range of services of sufficient quality that they tried to avoid in order to maximize profits.
What did all this mean?  In general private prisons have more safety problems than public  facilities.  There was more prisoner or innate to inmate violence and more civil rights violations in private as opposed to public facilities.  There was less emphasis on rehabilitation and higher recidivism rates in private prisons. Part of all this is a consequence of trying to save money by not providing services.  But something else was also going on.  No warden in a public prison was repeat  business.  On the other hand private prisons have a financial interest in recidivism.  The interests of the state and private prison operators is contradictory.
Finally, there is also one other major problem we found then with private prisons: the employees are not public and therefore they can go on strike.  Public prisons operated by the government employing public employees can prevent by them by state law from striking.   Private prisons and their labor relations are governed by federal law, preempting and state laws that would  bar strikes.  The potential of a strike or other labor problems raises many questions about safety.
In the 17 years since the Minnesota report was issued I have continued to research and teach  about private prisons.  For six of those years I also taught criminal justice courses.  Subsequent reports and studies largely reconfirmed the conclusions found in the 1999 report.  But the last 17 years have revealed some lessons we could not have seen then.  The rise of private prisons occurred along side the war on drugs, the broken windows theory of crime (arrest for the petty stuff before it escalates), mandatory minimum sentences, and three strikes and you’re out laws.
Nationally these laws exacted a racially discriminatory war against people of color.  In Minnesota, they led to an explosion in a prison population that has the worst racial disparities in the nation.  Private prisons have become what Nina Moore argues in The Political Roots of Racial Tracking in American Criminal Justice, a linchpin in creating a separate criminal justice system for people of color that is separate and unequal.  The private prison industrial complex is central to all the problems that Black Lives Matters rightly protests.
In sum, the lesson of prison privatization is that they are a bad option for Minnesota and Governor Dayton is correct in vetoing any bill that would allow this to happen.

Boehner and Dayton: A Tale of Two Politicians and Parties

In addition to the Pope’s visit, two end-of-week stories made headlines.  One was the resignation of Speaker Boehner, the other the miserable roll out of the medical marijuana program in Minnesota.  Both stories deserve comment because they illuminate broader problems for the Republicans at the national level and the DFL in Minnesota.

“The Crazies Have Taken Over The Party.”
Speaker Boehner’s resignation really should have shocked no one.  His entire tenure as speaker has been tense.  Made speaker when the Tea Party arose and which  lead to the Republicans capturing majority control of the US House during the 2010 elections, Boehner has always been pulled in several directions.  One is being leader of the House of Representatives, seeking to broker deals with the Senate and President Obama.  This is the pragmatic and institutional aspect of his role as speaker.  But many in the GOP (as was true with Nancy Pelosi when she led the Democrats and the House as Speaker) view the speaker as both their party and ideological leader, expecting that person to push their agenda.
While all speakers face this pull as institutional, party, and ideological leaders, some are better able than others to bridge the three.  Boehner did his best, but seldom pleased his most conservative members.  On several occasions he negotiated deals to keep the government open or avert a debt crisis, but he also failed on occasion too.  For the ideological purists in his party, he too failed.  He failed on abortion, failed to cut taxes enough, failed to challenge Obama and the Democrats enough.  There were constant rumors and signs of ideological battles and tests of his leadership, but finally it became too much.  Boehner said that he was stepping down to protect the House and not let the constant leadership battles threaten the institution.
The issue that finally seemed to do it is the one now linking the defunding of Planned Parenthood to funding to keep the government open.  The purists are willing to shut the government down to defund PP and expected Boehner to be both their ideological and party leader to help them here.  But Boehner as part leader knew that past government shutdowns have hurt the Republicans in the past and would probably again do so this year, risking electoral problems in 2016.  Finally, as an institutionalist he knew shutting the government down was not good.  Thus, his tri-lemma–represent the ideologists who have taken control of the party, protect the GOP from self-destruction in the house, and protect the House and the government as an institution.
In the end, the ideologies have won.  They have won not simply in knocking off Boehner (a person they did not ever really trust), but they have taken control of the institution and of the party.  Peter King, Republican from NY, describes what just happened as “the crazies have taken over the party.”   Mainstream media says this move makes it less likely that there will be a government shutdown soon.  Maybe.  Or maybe a weakened Boehner or future speaker will be able to control the ideologies even less, perhaps increasing the chances of a shutdown or more confrontations as we getting closer to the 2016 elections.  Stay tuned.
But there is also something else the mainstream media is missing.  One has to view the resignation of Boehner in conjunction with the Republican presidential polls showing that the three outsides–Trump, Carson, and Fiorina–are leading over the institutionalists or more mainstream GOP.  Consider also polls showing a Republican base entrenched on issues over hostility to immigration  reform, proposals to address climate change, abortion, taxes, and just about everything else, and it  is easy to see why Trump, Carson, and Fiorina are leading.  It is looking to be the year that the Tea Party revolution started in 2009 has finally won.  The Republican party has been made over–if not by Tea Party followers, definitely by the ideologists.    The Party is being pulled ideologically further and further to the right at the congressional and presidential level, representing a demographics and ideology perhaps far from the ideological center of American politics.  Whether this means in the short or long term their demise is a matter of debate.  How Democrats respond will be interesting to see.

Dayton’s Dilemma
The roll out of medical marijuana is effectively a disaster on all fronts.  Yes the legislation was terrible and misconceived from the start.  Instead of just legalizing marijuana or allowing for a deregulated medical use, Minnesota chose to over-regulate its medical use.  Few people would be allowed to use to, but only in an expensive processed form that would not be covered by insurance.  Doctors would be expected to write prescriptions for its use even though they had no financial incentive to do so and risked their medical license to do so because marijuana is still illegal federally and doctors could potentially be sued or prosecuted for suggesting its use.  There was a costly process to select vendors to sell medical marijuana and they would have start up and operating costs  that far exceeded our friendly neighborhood dope dealer.  Bad policy design leads to bad implementation and that is what we are finding out now.
In the last week stories have emerged that the rollout of the medical marijuana is going poorly.  The prices are too high, too few people qualify, stories to buy the product are few, and the vendors are losing money.  There is talk now of qualifying more people for medical marijuana, perhaps giving the program financial solvency.  This will ultimately fail.  The basic policy design  is flawed and tinkering around the edges probably will not fix it.  In too many ways the policy was  captured by too many special interests who all wanted a piece of the pie, and by flawed assumptions about who wanted medical marijuana and why.
On one level one cannot fully blame the Dayton administration for the faulty policy design.  Dayton originally did not want medical marijuana.  But there is a troubling pattern here.   Consider perhaps the three most significant initiatives of the Dayton administration–the Vikings Stadium, MNSure, and now medical marijuana.  All three have had major policy design failures and all three have had terrible roll outs.  With the Vikings stadium MN has one of the worst stadium deals in the country.  MNSure’s rollout was so bad even Dayton was willing to put on the table this last session killing the Minnesota health care exchange and opting into the federal one.  Now medical marijuana and the concession it needs a major fix.  This is not a good implementation history for Dayton and the Democrats, and it is a certainty that such a pattern will be an issue in the 2016 state legislative elections.

What Ever Happened to the Liberal Democrats?`

What the hell ever happened to progressive politics and liberalism in the Democratic Party?

            When I first moved out here DFLers bowed to the memory of Humphrey, McCarthy, Freeman, and Mondale.  Later they added to that Wellstone.  But such homage is living in past, shallow in the sense that the DFL today lacks the courage of the convictions it once had.  The same is true for Democrats at the national level.

            At the national level Barack Obama is pushing a free trade agreement that only Republicans and Wall Street can love and he now wants to ramp up troop commitment and base building in Iraq, essentially continuing Bush's war and undoing the original rationale of his presidency.  Hillary Clinton's liberalism is hardly that;  her speech on voting rights called for tepid reform at best, ignoring the socio-economic forces for why many do not vote, and her call  for economic justice looks hollow next to support for Wall Street.

            In Minnesota a governor who just a few months was heralded in the national media as the most liberal one in America who got the job done, just folded to the Republicans on almost any measure.  The give-aways on the environment, gun silencers, gutting the State Auditor's office,  and retreating on universal pre-K send signals that Republicans can win if they hold long enough.  And then there is Senate majority Leader Tom Bakk- why he is a Democrat is anyone's guess.  His leadership was deplorable, his messaging horrific, and his negotiating skills next to none.  If he thinks that his capitulation will defend and protect Senate seats in 2016 he is simply wrong. His gaffes and missteps only make suburban DFLers more vulnerable and he has done nothing to convince rural voters to support Democrats.  He made the classic mistake Democrats have made for so long, believing that by acting like Republicans they are more electable.  The reality is that the more the Democrat brand is muddled and undistinguished the harder it is to win an election.

            The politics that looks dead is good old-fashioned economic liberalism.  The progressive politics that appears dead is that of Lyndon Johnson, John Kennedy, Franklin Roosevelt, and even Teddy Roosevelt. It is about the Great Society and the New Deal.  It is about redistributive politics that sought to raise those at the economic bottom, narrow the gap between the rich and poor, and wrestle control of political power in the United States from corporations and plutocrats.  It was a commitment to believing that the government had an important role in make sure we had a nation that was not one-third ill-fed, ill-clothed, and ill-housed, that kids should not go off to school hungry, and that corporations should not have the same rights as people.

            But if Bill Clinton’s presidency did not kill off this type of progressive politics, surely Barack Obama has.  If Obama did not do it directly, he did so indirectly with the 2010 and 2014 backlashes against him that has done more to kill progressive politics than can be imagined.  With less than two years to go Obama is liberated and you would think he would be more bold, but he is not.  Why?  He never was the liberal  folks wanted to believe.  In 2008 his liberalism was far distant to the right compared to Dennis Kucinich and even John Edwards.

            Mark Dayton gets nothing his first year in office then supports corporate welfare for the billionaire Vikings owner.  Now again in 2014 he gives in and Tom Bakk is complicit.            Progressives are on the run everywhere.  It is not just on matters of public policy such as with taxes, government regulation, and health care, but also in the rhetorical battle for the hearts and minds of the people. You can’t even call yourself a liberal anymore without being red baited. Thus the reason for switching to the term progressive. Conservatives have successfully labeled as left or socialist anyone who does not agree with them. 

            Watch cable news (not just FOX) or surf the web, crackpop conservative ideas dominate.  In 2008 Ron Paul pleaded for a return to the gold standard, Michelle Bachmann blamed Obamacare and Wall street reforms for the crash in the economy (even though neither have really taken effect for the most part).  The recession of 2008 is the fault of the government and not greedy bankers and speculators, Keynesian economics to stimulate the economy is wasteful, consumer protection is bad for business, and the Supreme Court’s Citizens United expanding corporate free speech rights to dump unlimited money into the buying of elections is good.  Oh, and vaccines cause mental retardation and global warming does not exist and Obama is blamed for the  screw ups with FEMA and hurricane Katrina! Main stream media seems afraid to put real progressives on the air and what passes as progressive on MSNBC is watered-down, snobbish, and defensive.

            How did it happen?  There is no one cause but there are several reasons.  First, what Obama and progressives have failed to do is craft a narrative supporting their views.  Conservatives have the narrative of individual freedom–markets are good and government is bad.  Government suppresses personal freedom and markets promote it.  Never mind that corporations tell more people what to do with more of their life at work than the government ever does or could.  That’s corporate freedom.  Conservatives have made free choice their buzz word and equality a dirty one.  Progressives have no overarching rhetoric and narrative to support their world view.  Progressives need a winning narrative that appeals to Americans and which dictates a governing philosophy.

            Second, Obama was not really a liberal but his rhetoric looked it.  He ran promising change.  The reason why so many are disappointed in him is not that he was too far left but that instead he failed to deliver on his lofty promises.  At inauguration Obama had a window to change America but he flinched.  Carpe diem was not his motto.

            Third, progressives lack guts to fight.  Obama repeatedly caves, and now Dayton has done it twice. Why?  Democrats (and one should not confuse the party with progressivism) believe that they are the caretakers for government.  They believe that they need to be responsible and not run the risk of shutting the government down for fear of how it would ruin the economy or hurt people.  But conservatives know this and take advantage of the Democrats willingness to blink.  But by blinking the Democrats are screwing over poor people and the economy slowly by giving ground one inch at a time and they seem unable to recapture it. Until Democrats fight and show conservatives they are willing to shut the government down and hold conservatives responsible they will never win.  Missing is the courage of their convictions.

            Fourth, conservatives understand how to make structural reforms and policy changes that both benefit their supporters and enhance their power.  Tax cuts and cuts in regulation are simple ways to benefit supporters, but there is more.  Voter ID disempowers their opposition, attacking union rights undercuts labor support for Democrats and opposition to business in the workplace, and gutting regulations on money in politics strengthens corporations and rich individuals.  Obama’s biggest mistake in his first two years was his failure to act accordingly.  Instead of health care reform he should have used his sizable majorities in Congress to support the Employee Free Choice Act to strengthen unions, adopt national legislation banning voter ID and permitting day of election registration in federal elections, and adopting real Wall Street and bank reforms that would have limited their power, including reauthorizing Glass-Steagall.

            Moreover, Obama should have first done something to help homeowners and workers get their houses and jobs back.  Reward supporters up front and they are with you for life.  Furthermore,  when the Supreme Court issued Citizens United Obama could have issued an executive order barring corporations from bidding on federal contracts if they make political expenditures.   Or he could have ordered the Securities and Exchange Commission to issue rules requiring shareholder assent before companies make political expenditures.  Finally, to break the back of conservative news he could have embraced a reinstitution of the Fairness Doctrine to require the media to offer diverse view points.  But he did not do any of this.

            In Minnesota Dayton signed the death knell for campaign finance reform.  His negotiations with the legislature were a contempt for open and accountable government.  He and the DFL leadership have never supported lobbyist, campaign finance, or real structural reform of the government.  Instead, if anything, what has emerged is a CEO-corporate style of management for government-a repudiation of liberal reforms of the last 40 years and an embracing of a Republican style of politics.

            This is the last problem.  Democrats now feed at the same trough as Republicans.  Obama, Clinton, and  Democrats across the country and Minnesota are equally as dependent on big money and the kindness of millionaire friends as are Republicans.

            Progressive politics is dead so long as it is married to the current Democrat Party.  They need a party that is not willing to play it safe and worry that if a few Democrats lose  that means the Republicans win. It means a willingness to fight for what you believe in.  This is what progressive politics needs to be in the age of conservatism.  The dead don’t fight or win.

A Failing Grade for the 2015 Minnesota Legislative Session

The 2015 Minnesota legislative session was a failure.  An F grade for all in my line of work.  No one really got what they wanted and not because there was compromise.  Dayton did not get universal Pre-K, a transportation bill, a bonding bill, or really much of anything else.  The House GOP wanted $2 billion in tax cuts, and infrastructure money and more goodies for greater Minnesota, and they failed.  I have yet to figure out what the Senate Democrats wanted but they did not get it.
The governor and the legislature largely failed to deliver on anything.  The state failed to deal with passing a responsible budget in a timely fashion.  It is full of gimmicks.  They range anywhere from acting as if there was a real surplus and then squandering it to House Republicans passing a phony budget that robs money from one place and giving it to another and calling it an increase.   But think about pressing issues not addressed–transportation funding and infrastructure, civil commitment for sex offenders, and MNSURE–and it is hard to conclude that this was a good session.  Welcome to the new Minnesota normal.

A Crisis in Leadership
Poor time management and leadership defined this session. Back and Daudt did not enter into negotiations until very late in the session.  Back and the Democrats again proved horrible at messaging, while Daudt and the Republicans could not decide if they wanted to play pork barrel politics to get goodies for their constituents or simply cut taxes.  In the end they did neither.
For Dayton he was largely uninvolved in the legislative process and never really made it clear what he wanted.  Recall his state of the state address where he said he had lots of priorities?  If everything is a priority then nothing is.  Kurt Daudt is correct that if Dayton had wanted universal pre-K to be his main priority he should have said that months ago and worked to line up support for it.  He never did.  But Dayton also seemed to pout a lot.  Recall his earlier flare up with Bakk and then his actions in the closing days sounded more like I will take my bat and ball and go home if I do not get what I want.
What Dayton ignored is that you have to create  political incentives for legislators to act, especially  members of the opposite party, and he never did that.  He thought that he had a mandate and could simply push legislators in line.  That is why he did not get what he wanted and that is why he still might not get what he wants in a special session.  Memories of Senate Democrats and House Republicans teaming up to overturn Ventura’s vetoes loom on the horizon if Dayton is not careful.

The New Normal and Why
But this session seems less of an outlier when one keeps in mind that dating back to the Ventura era the repeated number of times the state has witnessed shutdowns, near shutdowns, failed unallotments, and special sessions that reach budget accords so late that it makes it difficult for schools and local governments to plan.  One should also not forget all the phony budgets, cost shifts, and kicking problems down the road that have been part of the new Minnesota Normal.
Partisanship and polarization too were factors this year and in the past explaining the New Normal, but they only exacerbated three underlying problems in Minnesota politics.  First, an archaic and broken budget process.  Second, the entrenched special interests that make it difficult for the two parties to compromise.  Third, the disparate electoral incentives of the governor, Senate, and the House.

Broken Budget Process
The budget process is broken.  Minnesota is trying to do a twenty-first century budget with  a horse and buggy process.  The process in place is one that perhaps once worked well 30 or 40 years ago when the budget was half of what it was and no where near as complex as it is now.   The constitutional mandate for the length of the session goes back to the nineteenth century when we still had this image of farmer-legislators who needed to adjourn in time to get their spring crops in.  A century ago  one did not need as much time as is presently required to pass a budget and debate legislation.  There was simply less to do.
The complexity of the budget process is now so great that even under the best of circumstances it is difficult to get it done in just a few months.  But add to that some additional problems.  First, the increased complexity of the budget and what the state does makes it harder and harder for legislators to master it in a short period of time.  We had elections in November producing  new legislators and  House majority.  How do we expect them from day one to understand how to govern and what Minnesota government does.  Few of us are ready to do our jobs well in the first few months.  There is a learning curve and for state legislators that curve is the budget session.   It would make far more sense to have the budget done in the second year of office, giving legislators ample time to adjust and learn.
Its also about timing.  The governor generally does not release a budget until late January, the final fiscal forecast which is the basis of the budget comes out late March, and then a revised governor’s budget based on the forecast is produced. At this point already two months have been wasted in the budget year.  The timing of when the legislature comes into session, the governor releases a budget, and the fiscal forecast occurs need to be changed because their present order simply encourages procrastination.

Special Interest Gridlock
But a second underlying problem is the way money and special interest influence have made it impossible for the two parties to reach agreement.  Both the Democrats and Republicans have interest groups supporting them, encouraging them to stick to their guns and not negotiate.  It’s not about the gift ban law making it impossible for legislators of different parties to swill together at the Kelly Inn that prevents them from working together, it is about them being unable to resist the pressures from their constituent groups to forge compromises.

Differing Political Incentives
Finally, as this session reveals, there are contrasting electoral incentives that driven the House, Senate, and governor in different directions.  Here the House and Senate both face 2016 elections and therefore have incentives to cooperate.  But in other years the four and two year terms  put the electoral interests of the two chambers in conflict.  This year, moreover, Dayton’s interests contrast with legislators–he is not up for election, perhaps ever again–and he can push for issues or that legislators cannot.
Overall, many factors explain why this session ended the way it did and why it deserves an F grade, and I am not even sure an A for effort is in order.


Three Final Thoughts
If the K-12 budget is vetoed does that mean there will be no funding and school?  No.  Remember that the State Constitution mandates the legislature to fund a “thorough and efficient system of public schools.”  If no agreement is reached the courts will settle this.

Maybe now the state will think about passing the automatic continuing resolution that requires the  state to continuing funding programs at the same level into the next budget year if no budget is agreement upon.

Finally, where will the legislature go for special session if the capitol is closed?  The session has to be in St. Paul.  The governor proposes tents for the front lawn.  I will make a pitch for them to move down the street to my school–Hamline.  Plenty of parking and space to meet, and food no worse than Ulcer Gulch at the Capitol!