Blink: How and Why Mark Dayton lost the Budget Battle

The loser always blinks first in a staring contest. Governor Mark Dayton blinked first.

The late Thursday afternoon announcement that Dayton and the Republican Legislative leadership had reached a tentative budget deal was a near capitulation by the governor. He failed to get his tax increases on the wealthy to fund his spending, instead agreeing to the final Republican offer to fund the budget with more accounting shifts and a borrowing off of the future tobacco settlement funds. Dayton gets to say he got more spending and maybe a bonding bill without social legislation that he opposes. But these victories were insignificant and irrelevant. What does the deal mean for Dayton, the Republicans, Minnesota, and perhaps the Democrats in Minnesota and at the national level?

What Dayton lost: It’s not just the budget battle

The budget battle was a contrast of dueling ideologies and claims to mandates. Dayton ran promising tax increases on the wealthy to fund new spending, erase the deficit, spend $1 billion on a bonding bill to put Minnesotans back to work, and change the direction of the state. The Republicans ran against taxes, new spending, and staying the course. They got more of what they wanted than Dayton.

Dayton consistently blinked. He cut back several times on his idea for tax increases. He kept reducing or hedging his electoral pledge on taxes, at each point further reducing the amount he wanted to tax. He even compromised on taxes, pleading instead for any type of revenue increase. At each juncture the Republicans said no, seeing weakness offers to compromise. In the last few days, despite claims his claims in court that the governor had inherent authority to address the budget shutdown, Dayton was never willing to use this claimed authority. Perhaps Dayton thinks to the general public this final giving in to the Republicans looks like he was the more responsible one willing to compromise in the best interests of the state, to Tony Sutton and the GOP it is a sign of weakness. A sign perhaps that in future negotiations Dayton will similarly give in.

Dayton’s decision to compromise potentially makes him irrelevant in the future. Think about it. Dayton gets a bonding bill. Politically who is helped by the bill? Not Dayton since the bill will long since be forgotten if he runs again in 2014. Instead, the Republicans benefit. They get funding for capital projects back in their districts that will help them with their re-election in 2012. The GOP does not need Dayton for social legislation. Gay marriage is already going to the voters as a constitutional amendment. The same can happen with abortion, stem cell research, and voter ID. The Republicans can end run Dayton at will in the future.

Moreover, Dayton just alienated the DFL and state workers. DFL legislators stood behind Dayton and he abandoned them, giving them little cover for 2012 and with their supporters. Among his base there is anger too that he gave up on them after they all supported him in 2010 and in the shutdown.

A bad deal for Minnesota

The budget deal is bad for Minnesota in many ways. Nothing was done to address the long term structural deficit the state faces; it is more budget gimmicks. It appears K-12 faces more shifts and possibly the borrowing from them never gets repaid. The tobacco settlement money gets raided, diverting it from the stated purpose to address health costs and education surrounding smoking. The borrowing here off the tobacco money means increased debt for the state. Thus, we continue to borrow and shift debt to the future in ways similar to what federal government has done for years. It is no different than paying off one credit card with another. In 2013 Minnesota will be back to the same place it is now. Minnesota is effectively deficit spending but budget tricks and future debt obligations hide that reality.

Perhaps Dayton is counting on 2012 producing DFL victories in the legislature that will change things, but do not bet on that.

But why did Dayton blink first?

The answer is simple: Dayton cared more about the government and Minnesota than did the Republicans. He was afraid of the lasting impact the shutdown would have on the state’ economy and government. Settle before more damage is done. The Republicans were willing to risk more–their negotiating strategy dovetailed with their views on government. So what if government is shutdown or crippled. They wanted to reduce government so hanging tough worked for them. For Dayton and the Democrats, they believe in government and what it does and the idea of supporting government by prolonging a shutdown ultimately proved too much for the governor.

So what does it all mean?

The Minnesota budget impasse and the shutdown was becoming a nationalized political issue much in the same way that the battle over collective bargaining became so in Wisconsin. Do Republicans in Congress read what happened in Minnesota as a sign that if they took hang tough Obama too will blink? Obama too cares more about government that Congressional Republicans. He faces a tough election in 2012 and he has already demonstrated willingness to compromise (the Bush tax cuts) to reach out to moderate or swing voters. Look too to see him blink before or more than the Republicans in Congress.

Afterthought

It was not the closing of many governmental services that drove Minnesotans to anger about the shutdown. The real crisis seemed to be when the racetracks and lottery closed, bars had difficulty getting beer, liquor, and cigarettes, beer distributors could not stock Minnesota shelves, and the baseball fans faced the prospect of baseball without beer. Perhaps life without gambling, booze, and smokes is what brokered the compromise. What would Minnesota be without the them?

Broken Politics: Ending the Shutdown and Fixing the State

Minnesota politics and its once pristine national reputation are broken. Politically, the government shutdown is only the mostly recent reminder of how decrepit and polarized it is. A near shutdown in 2001, partial in 2005, a botched unallotment in 2009, heated recounts in 2008 and 2010, and now 2011 all point to something beyond personalities and more structural in Minnesota. The faces have changed, yet the problems persist. The State’s reputation for the Minnesota Miracle, the land of Lake Wobegon, a state where government is clean and works, is shot. Even states like California, with persistent budget problems, or Wisconsin under Scott Walker, do not shut down but eventually manage to adopt budgets. We stand alone as a dysfunctional example of political polarization.

Divergent ideologies, combined with partisanship and rival claims of electoral mandates certainly feed the impasse between Dayton and the Republican legislative leadership. But the roots of this impasse go deeper. Demographic and electoral forces in Minnesota explain how ideology created the shutdown, offering clues both to short and long term solutions to ending this current crisis and perhaps addressing future ones.

Ending the Shutdown this Time

Dayton and the legislature appear not to have a sense of urgency in resolving the deadlock. This is the argument I made on Fox 9 News on July 6, with Heidi Collins. There are many political reasons for this lack of urgency.

Short term the shutdown does not end unless one side surrenders or both sides compromise. Surrender is difficult, no one wants to look like they have caved in. Conversely, with the two sides ensconced in their rival positions, compromise too looks like capitulation. Any good mediator will tell you that the way out of the current problem is something that allows both sides to claim victory–a perceived face-saving or win-win situation. Republicans cannot give on taxes and revenue unless they get something else their political base wants–new laws on social issues. Thus, not a surprise that prior to July 1, the Republicans seemed willing to give on some revenue, but in return for limits on stem cell research. The Republicans need to show something to their base if they are to compromise. Similarly, Dayton has been willing to give on taxes, but needs something else such as a global agreement on spending, to look like a victor and appease his base.

But while one waits for the compromise or capitulation to occur, one has to ask what forces will drive the two sides to this compromise? Clearly appeals to the public good have not worked for the last six months. Once the shutdown occurred, and the longer it goes, the short term sting from it decreases as life under partial government become normal. Moreover, the courts, the special master and even Dayton seem willing to let the judiciary order more spending, thereby reducing more pain. It appears no one trusts the political process to do the right thing.

What about an outside force to resolve the dispute? The Carlson-Mondale blue ribbon panel was stillborn from its inception, both because the Republicans do not trust Arnie Carlson who is not one of them anymore, and because adopting recommendations of a panel would imply deference to reason and rationality and not politics. The panel could have offered political cover to the two sides to compromise, but its logic appeals to moderates and swing voters, not the political bases who are driving the impasse. Perhaps the bases need to feel the pain of the shutdown? For the Republicans, something is necessary to make millionaires demand an end to the shutdown, something that costs them money. The same is true for the Democrats.

But perhaps a different outside force is needed to bring the parties together, but what? This is the structural issue.

Broken Politics and the Electoral Connection

One would have thought that political anger of voters would drive legislators and Dayton to the table. But that presupposes they and Dayton fear reelection. Certainly some legislators, maybe 30 or less, live in swing districts where this is an issue. But for the vast majority, this is not a concern. Minnesota is a red and blue state. The partisan distribution of the state has a clear geographic pattern. The DFL solidly have the Twin Cities and some of the other urban cores as well as St. Louis County, the Republicans the rest.

The geographic partisanship is hard to correct with redistricting given residential patterns. This means the electoral forces that should drive elected officials to compromise do not exist. Instead, fully partisan areas simply reinforce the current ideological divide. Longer term, then, one of the causes of the partisanship is the geographic red-blue divide in the state reinforced by districting. Addressing this problem is an imperative, but the solutions are hard to envision. In the short term, impetus for ending the shutdown may come from the legislators in the swing districts who are fearful of losing in November 2012.

Partisanship is also exacerbated by the caucus system. It rewards extremists on both sides who have the time and tenacity to outlast everyone else in seeking to influence the direction of the major parties. The caucus system nurtures zealots, ideologically opposed to the other side and often unwilling to compromise. Abolishing the caucus system, or at least seriously restructuring it to encourage more diversity within each party, should also be on the horizon.

At the gubernatorial level, not since Arnie Carlson’s reelection in 1994 has a governor been elected with a majority vote. Since then, the winners have been elected essentially by their political bases. The presence of a third party candidate has literally guaranteed minority governors not to be beholden to swing voters for their election. Adoption of ranked choice voting for statewide offices might resolve this, making governors indebted to more swing voters might force them to compromise.

Non-Solutions: It's not the gift ban law

Finally, two non-solutions. Some will call for the return to non-partisan legislative elections as Minnesota once had. Removing the party labels will not remove the underlying partisanship. Second, some will point to the state gift ban law, contending that because lobbyists can no longer wine and dine legislators, members of the two political parties no longer socialize. The gift ban law does not prevent legislators from socializing, it simply says special interests cannot buy influence through gifts. Blaming the gift ban law for the impasse is no different than a legislator stating: “I will not cooperate with the other side unless a lobbyist buys me a meal.” This sounds like a five year old threatening to hold his breath until he gets the toy he wants.

Overall, the government shutdown is sourced in partisanship rooted in demographic forces accentuated by an electoral system that makes compromise more difficult. It renders both a short and long term solution difficult, damaging the governability and reputation of Minnesota.

Constitutional Chicken: Litigating the Minnesota Shutdown

As kids we played chicken all the time, daring someone to do x or cross over a line. The same game of chicken is being played now with the Minnesota budget and economy. First it was between the Governor and the Republican legislature during session, now in Court and the participants have expanded to include the Attorney General, interest groups, and the courts themselves.

At Thursday’s hearing in Ramsey County (which I attended) Judge Gearin closed the day by indicating that all of the sides were playing chicken with the state. And numerous times she admonished that the stakes were high, the problems serious, and that no one should expect her to bail them out. In many ways, her threat too was one of chicken. Do not expect her to blink. See my first thoughts on the court proceeding on Fox 9 News from Thursday, June 24, 2011.

The Stakes

There are numerous agendas at play here. Of course, there is the agenda to secure a budget by July 1, to avert a shutdown. There is also a broader agenda between contending and philosophical views on state spending and what role we view for the government in our society. But there are also significant other economic, political, and legal or separation of powers issues here.

Economic

The economic stakes are significant. I discuss them on Kare 11 News on Thursday, June 23, 2011.

According to the Bureau of Labor Statistics the May unemployment rate in Minnesota was 6.6%. This is based on a state workforce of 2,977,400, with total employed being 2,781,000 and unemployed 196,300. Assume all 36,000 state workers given notice are furloughed. Using the May figures, this pushes the total unemployed to 233,300, yielding an unemployment rate of 7.8%. The economic consequences of the shutdown are apparent–nearly a 20% increase in the unemployment rate almost immediately.

Laying off state workers and cutting state services is only the beginning. There is also the multiplier effect. By that, for every dollar of state spending, it produces more down the line. Paying public employees means they will additionally purchase food or consume items, thereby resulting in more spending across the economy. Now some market fundamentalists claim the government adds no value and produces no multiplier. Yet they are often the same ones who claim that tax cuts for the wealthy trickle down to the poor.

Mainstream economists who have studied government spending verify that multiplier effects exist. University of California San Diego Professor Valerie Ramey is considered the leading expert. She indicates that the historical average for the United States government is 1.4. For every government dollar the ripple effect across the economy is $1.40. Money spent early in a recession has a larger multiplier than in a recovery. The multiplier effect varies with consumption. Government spending placed in the wallets of those who will consumer more of it will produce greater multipliers than those who do not. This is the concept of marginal propensity to consume.

Minnesota’s current gross state product (GSP) is about $275 billion. One estimate from the United States government is that Minnesota spending is $20 billion per year, or about 7% of the GSP. Assume a State multiplier of 1.4x; then total annual state spending produces additional effects equal to another $8 billion. Suddenly state spending accounts for over 10% of the GSP.

The shutdown will clearly have dramatic effects on the economy and unemployment rate beyond laying off state workers. The State recently informed 572,000 Minnesotans on cash welfare, food support and health care programs; 7,000 families receiving adoption assistance payments, and 26,000 families receiving child-care subsidies that they may not receive help after July 1. All these are individuals who will most likely consumer most money they receive from the government, thereby producing a higher multiplier effect. But the multiplier does not stop there.

Many private vendors and contractors doing business with the state–including those from the private and non-profit sectors–may not get paid and would stop work. Local governments too, facing uncertainly and a halt to payments, might also be forced to layoff. It is not inconceivable to see a partial or total shutdown of the state pushing the unemployment rate to over 8%.

Political

The political stakes here are significant. The GOP Legislature and the Governor are in a battle over who controls the state and the political agenda. But both are also battling with their bases.

If the GOP blink and compromise they have a better chance of winning re-election in 2012. But if they do they alienate their political base and Tony Sutton, facing challenges from the right. They are trapped by their own rhetoric.

Dayton so far has played it well with the cut spending and raise some taxes and then agreeing to cut more and reduce some taxes. Public opinion still supports him but recent polls show support for him is down to about 43%–approximately his vote last November. He is down to base politics in terms of support for his leadership. But support for the legislature is in the 25% range–even worse. Dayton can continue to use the 4/2 strategy to his advantage. He is up for election in 2014, the GOP next year 2012. An angered public takes it out on them first.

If Dayton forces the GOP to crumble because of public opinion and fears of 2012, he breaks the GOP’s back. He does that by pushing Tony Sutton and the TEA Party wing to challenge the already conservative state GOP, forcing a war within the party.

Dayton has to win this battle to retain support of his base, he appears to have lost support from all but that. If he gives in anymore he damages support to his core constituency. Thus the reasons or why Dayton added medical payments at the last minute to his list of core functions to be funded–better not alienate the grandma in the nursing home vote.

Legal

The legal battle here are amazing and reveal contrasting views of the State Constitution and political power.

AG Swanson has produced the best legal brief and arguments that build on past state law. She has argued for a more expansive notion of core functions, using her consumer advocate role to represent the people. Her brief argues for continued funding of federal mandates, the constitutional obligations, statutory requirements, and protection of vulnerable people in the event of a shutdown. This would result in a soft shutdown, less onerous than Dayton.

Dayton’s legal arguments are most fascinating. He first asks that Judge Gearin order mediation. She cannot do that since the legislature is not a named party and therefore cannot be brought into mediation. There also are constitutional problems (separation of powers) in issuing this order. not issue any orders until after July 1. Dayton’s second legal argument is that the issue is not ripe. He also opposes allowing the joining of additional parties, contending that there is no real dispute here yet. His attorney argues that once July 1, hits, then maybe one can go to Court to order certain action but until then there is no real legal issue. But more importantly, Dayton has suggested that he has inherent constitutional authority as governor to act on July 1, to keep core state functions going! This is an amazing argument based on separation of powers and the governor’s veto. His arguments remind me of Nixon during Watergate, Bush after 9/11, and Pawlenty when he acted to use unallotment to end the budget impasse. This is a significant assertion of authority. Dayton’s arguments for the funding of core functions by the court is far less than Swanson, but the legal implications of his arguments more extensive.

Now the GOP. First the four GOP senators who cannot shoot straight. First they go to the Supreme Court asking a halt to the Ramsey County proceeding. The basis of their claim is that they did not think they could win in district court so therefore they wanted to go to the Supremes. (They also mentioned in their brief that they did not want the court to intervene since it would change the balance of power in a political dispute). The Supreme Court correctly told them to go to district court. They reminded them they would take original jurisdiction only in emergencies and this was not one. Overall they instructed them on Civil Procedure and Law School 101–file complaints in the proper court and don’t venue shop.

Then on Thursday the same gang of four ask the judge to order Dayton to convene a special session. They somehow forgot the plain language of the state constitution textually commits this decision to the governor. Somehow all the language about the political question doctrine, separation of powers, and constitutional interpretation they developed in their Supreme Court brief was forgotten. This is also the gang that takes what they think is a literal reading of Article 11 of the State Constitution in contending (wrongly) that only the legislature can appropriate funds. Obviously they have forgotten about issues such as the Supremacy Clause and do not understand the difference between the state and federal constitution.

Then there is the House and Senate GOP. Their main legal strategy seemed to be to agree with Swanson and allow for more of the government to be run as core functions. If Swanson wins then the GOP get the minimal government they want.

Finally, the courts are a major player here. They too have filed to make sure they are funded. And then of course Gearin. She made clear her disgust with the whole process, threatening minimal action that will please no one.

Overall, everyone is playing chicken. But what are the real stakes here? Former AG Mike Hatch stole the show. He indicated he was representing a woman who received state medical assistance to breath. He pointed out that she wanted to continue to do so after July 1. That summed it up.

Closing Thought

How long the shut down? Submit your answers to my blog. I do not know how long but am certain it better not go to State Fair time. Imagine 1.6 million angry Minnesotans talking to elected officials at the Fair.

Do the Math: The Costs of the Government Shutdown (And how to avoid them in the future)

This originally appeared as an opinion piece on June 10, 2011 in Politics in Minnesota.

The Minnesota state government shutdown looms larger and larger. But what is the cost of the shutdown? Some may think that closing down Minnesota government, partially or totally, however briefly, might yield savings. For those who believe government taxes and spending hurt private investment, the shutdown should produce a bonanza for private economic growth. Yet with public employees furloughed and their salaries and benefits not paid, programs not implemented, and projects not funded, all of this should lead to significant savings to the state, especially if it produces broader cuts and reductions in state and local spending.

But savings as a result of a shutdown are illusionary, outweighed by the costs. While ideally it would be best for the governor and the legislature to reach agreement, there is a serious need to consider adopting an alternative proposal to prevent future threats or real shutdowns–an automatic continuing resolution that funds and taxes the state at the same level of the previous biennium if no agreement is reached by the end of regular session.

There are savings associated with the shutdown. They include not having to pay wages and benefits to public employees. There are also operating costs as a result of not having to delivery certain programs. These could be savings in terms of health care expenditures to individuals for programs and services. The question is whether costs due to a shutdown are more or less than the savings?

How does one calculate the cost of a real or threatened shutdown? Economists use the term avoidable costs to refer to expenses that would not have to be incurred were some transaction or event not to occur. There are certain costs incurred with the shutdown that could be avoided if a budget deal were secured or no interruption in funding occurred.

What are avoidable costs? There are a host of costs incurred as a result of a shutdown that could be avoided. First, there are the costs associated with planning for the shutdown and then the start up of government functions. This also includes time spent by state agencies and workers on planning for the shutdown that is not spent on doing regular work. One cannot simply close and lock the state door at 5 PM–there must be an actual plan on how to do this, with this planning diverting state resources away from regular service delivery. These planning costs occur even if the actual shutdown does not occur. Second, there are the actual costs of shutting down the government such as laying off people, terminating or halting contracts.

Third, there are uncertainty costs. These include costs to state and local governments and school districts incurred as a result of not knowing how much money they will have for the next two years. A local government or school district not knowing know much money it will have may refrain or delay hiring teachers or planning programs. Uncertainty means creating contingency plans or otherwise delaying making some choices, thereby costing more money.

In addition to planning for the shutdown and restart, there are actual costs of starting up government functions such as rehiring individuals. It will cost money to notify, rehire, resume benefits, notify vendors, and begin implementing programs.

While government is shutdown, the State of Minnesota potentially loses revenue. This loss of state revenue includes delayed payments and tax collections and park fees. There are also litigation costs such as asking for temporary funding in court or in other litigation surrounding a partial shut down.

Finally, two last costs. There is a loss of personal income and out of pocket expenses associated with public employees being out of work. Many of these workers will have to pay for medical benefits out of their pocket or assume other expenses. And there is also a loss of state income and consumption as a result of public employees planning or actually being out of work. This loss of income includes losses to private vendors not being paid on contracts, lost business due to parks being closed, and other losses of income resulting in the state not operating. As more people are out of work, this hurts Minnesota’s economy.

Adding it up, the total costs associated with the shutdown exceed total savings. Moreover, many of the savings disappear once workers are rehired and programs have to address backlogs in services undelivered during the shutdown.

The point of this exercise here is simple: Taxpayers are going to spend more as a result of a government shutdown because Dayton and the Republicans could not agree. For conservatives who rant about government spending and taxes, their intransigence over tax increases and their unwillingness to compromise means taxpayers pay more.

Given the costs of a real or potential shutdown, can something be done? One solution is to adopt a variation of what they do in Wisconsin. In that state an automatic continuing resolution funds state programs if the legislature and the governor fail to reach agreement on the budget on time. Here in Minnesota given that there was a real shutdown in 2005, an almost shutdown in 2001, and many other years where special sessions were needed to reach agreement, automatically carrying over into the new biennium the previous budget and taxes solves many problems. It certainly does not address all budget issues and it is inferior to reaching agreements, but it is one way to avoid the costs associated with the threatened or actual shutdown.

Minnesota judges can order temporary spending to prevent a government shutdown

Today's blog post was on Minnpost.com on June 9, 2011.

May a Minnesota judge order the spending of tax dollars to fund essential state functions if the state Legislature and Gov. Mark Dayton do not reach a budget agreement by July 1? This is a legal question that will be asked in the coming days as it is anticipated that Attorney General Lori Swanson will approach a Ramsey County District Court judge with a court order for just this purpose. Yet some contend the court lacks this authority and it cannot do this. They are wrong.

The core of their argument rests on three claims. First they point to Article XI, section one of the Minnesota Constitution, which states: "No money shall be paid out of the treasury of this state except in pursuance of an appropriation by law." Second, they argue that the failure to reach a budget deal is a nonjusticiable "political question" that should be resolved by the political process. Third, they contend separation of powers precludes the courts from addressing budgetary matters. These arguments all rest upon an incorrect understanding of the Minnesota courts and the state constitution.

The central error here is drawing a parallel between the Minnesota and the federal courts. The argument is that the U.S. Constitution and its separation of powers preclude federal courts from intervening in political questions and from ordering spending. Besides this claim being wrong on the national level, there is a major difference between the federal and state courts. Whatever limits there are on federal courts, they do not necessarily apply to the state judiciary. State courts, including those in Minnesota, have unique powers compared to those found at the federal level. They are governed by state constitutions that allocate powers to the three branches of government that often differ from those found at the national level.

Across the country state courts have been given powers under their constitutions to issue advisory opinions, to order spending to achieve adequate school funding, serve on redistricting commissions, and to enforce unique rights not found at the federal level. The same is true in Minnesota. There is case law supporting Minnesota courts ordering funding to ensure that the state judiciary can operate. What if the Legislature and the governor disliked a Minnesota Supreme Court decision and decided to retaliate by not funding the judiciary? Such a move would violate the state constitutional separation of powers clause (Article III) and Article VI, which invests judicial power in the Minnesota Courts. At the very least, separation of powers demands funding for the courts, regarding of whether it was appropriated according to whatever Article XI states.

Reading in light of other clauses

A central canon of statutory and constitutional interpretation is to read words to avoid absurd results or to render some language superfluous. A reading of Article XI that states money can only be appropriated if approved by the Legislature would produce odd results that render Article VI and Article III meaningless. Article XI must be read in light of other constitutional clauses.

Moreover, a so-called strict constructionist reading of Article XI and separation of powers must be understood within the context of the Minnesota and not just the U.S. Constitution. Article III of the Minnesota Constitution has a different history and meaning from federal separation of powers, thereby again suggesting that Article XI appropriation authority must be read differently from what is found at the federal level.

Because Minnesota courts follow different rules from the federal courts, claims of justiciability and separation of powers that appeal to federal analogies are inapt. What might be considered a political question or otherwise textually committed to Congress or the president under the U.S. Constitution might not be true in Minnesota.

An additional duty

But in addition to the Minnesota courts having different powers from those found at the federal level, they also have an additional duty beyond interpreting state constitutional provisions and the law. They are expected to enforce the U.S. Constitution and federal law. When state and federal constitutions and law conflict, the federal wins. Thus, notwithstanding any state constitutional provision, a state court might be required to order the funding of any federally mandated program, even if the no budget deal was reached. Thus, whatever Article XI of the Minnesota Constitution might mandate is overridden by federal law.

In sum, those who argue that the Minnesota courts cannot order funding for essential governmental functions are asserting a wooden and formal reading of the law. The uniqueness of state court authority, constitutional provisions, and the need to enforce federal law give Minnesota courts the power to act. This was true in 2001 and 2005 when state courts declared they had the authority to act, and the same should be true in 2011 if called upon to so rule.

The New Minnesota Normal: Special Sessions and Government Shutdowns

The 2011 regular session of the Minnesota Legislature limps to an end without a budget deal. No news here, it was entirely predictable. Not since 1999–the first year of Jesse Ventura’s term as governor–has a budget session of the Minnesota Legislature ended on time without a special session, partial governmental shutdown, or a controversial ending such as in 2009 when Pawlenty used his unallotment power (subsequently declared illegal by the Minnesota Supreme Court) to balance the budget.

What has emerged is the new normal for Minnesota politics. The new normal is that the completion of the budget does not occur by the constitutionally-mandated deadline in May but instead July 1–the commencement of the new budget year. That seems to be the new deadline. But even then, that date, like October 1, for the federal government, appears more suggestive than drop dead. A threatened partial shut down in 2003 and then a real one in 2007 too eased the stigma of missing July 1, in Minnesota.


Why the New Normal?

The question becomes why? Why has the new normal emerged? Why does it seem impossible to reach budget agreement? One answer is divided government, yet even back to the days when Perpich was governor and the DFL controlled the legislature there were special sessions to address the budget such as in 1985. Under Carlson and then Ventura they became more frequent and then under Pawlenty and now Dayton they have emerged as the new normal. No; divided government is only a partial answer.

There are two causes explaining the rise of the new normal. The first is a growing ideological divide over the nature of government. The second is structural, questioning the efficacy of the current budget process.

Why Government?

The governor and the GOP-led legislature are as far apart today as they were in January regarding all the essentials over the budget. Dayton wants to spend $37 billion and erase the $5 billion deficit with some cuts that do not hurt the poor or education and with tax increases on the wealthy. The GOP wants to spend $34 billion and erase the deficit with cuts alone that seem to burden the poor, elderly, education, and local governments.

At the heart of the dispute between the Governor and the GOP is a basic difference in their rival views of the government versus the market. The GOP generally seems to see government and taxes as bad, an intruding upon the wisdom and functioning of markets. Let markets act and they will generate jobs prosperity, and solve the basic problems of society.

For Dayton, while market solutions and the private sector are the preferred places to produce jobs and make decisions, they recognize markets fail. Markets fail to address needs of equity. They produce inequities in wealth and income distribution, they fail to address core problems of education funding and disparities, they fail to address problems in infrastructure investment.

No, it does not look like the GOP wants no government. Many still find it necessary to hire police and enforce basic laws, and apparently to enact laws to prevent same-sex couples from marrying and women from terminating pregnancies or give tax breaks to the wealthy. The real difference between the GOP and Dayton and the DFL is over how much government and what government should do in our society. It is a debate between rivaling views-government versus the market, the individual versus society.

The debate over “why government” is ideological. Arising simultaneously are two other phenomena aggravating the debate over why government–the triumph of ideology over pragmatism and party polarization.

Daniel Bell famously wrote in the 1960s a book entitled “The End of Ideology.” There it is described a United States where belief was that we had reached consensus on basic issues of what constitutes the good life and the role of government in society. The issue was not ideology or goals but merely technique of the means to the end. Nearly 50 years later, we now seem to be living not with the end of ideology but with its resurgence.

There are basic ideological divides over means and ends. But more importantly, the ideological divide for some means all or nothing. By that, if one side is right the other must be wrong and therefore no compromise is possible. Thus, the emergence of ideology over pragmatism.

Political parties nationally and in Minnesota seem more polarized than 20, 30, or 40 years ago. There is more ideological cohesion in the parties, especially for the GOP, than in the past. This is a product of special interest politics and caucuses which are dominated by ideological extremists.

Thus, combine politically polarized parties with a take no prisoners ideological divide over the role of government and what do you get?

A Flawed Budget Process

But the polarization is only one problem. The second is the flawed budget process in Minnesota. It is a process 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 the State Constitution forbids the legislature to meet in regular session after the first Monday following the third Saturday in May in any year. There simply may not be enough time to do the budget by law.

But think also how flawed the current budget process is right now. The old governor makes the initial budget. New governor is elected and needs to update it to reflect his priorities and the fiscal forecast in November. The 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. 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.

Thus, as the session ends the only real question is whether there is a budget by July 1. The bet here is 60/40 odds of a partial shutdown. The reasons are ideological and process-driven, producing the new normal.

Constitutional Prejudice: Why the Minnesota Senators Got it Wrong on Same-Sex Marriages

No surprise–Minnesota Senate Republicans unveiled on April 26, a state constitutional amendment to bar same-sex marriage. Assuming it clears the legislature and goes to the voters there is no guarantee that it will pass. But that is beside the point. The purpose of the amendment is less about its actual passage than about symbolic politics and voter mobilization in the 2012 elections. Its proposal demonstrates a gross misunderstanding of American politics, the Constitution, and is an unfortunate and cynical appeal to prejudice for political gain.

Why a constitutional amendment to bar same-sex marriage? It seems unnecessary given a 1971 Minnesota Supreme Court decision Baker v. Nelson and a 1997 state law barring same-sex couples from marrying. Yet GOP Senators in affirming their reasons for the amendment stated that laws can change and courts can alter their minds but constitutional amendments are more permanent. They contended that voters have a right to have a say on who is allowed to marry.

The senators are correct about the former, wrong about the latter. However, the law should change to reflect new circumstances and public opinion and judges should calibrate interpretations in light of new facts and circumstances. The law should not be fixed in the past reflecting old prejudices and beliefs. To argue that is to assert that the law should be frozen in the past. Democracy is about consent of the present, not of the past.

But the law should not be fixed in the past. Such logic was characteristic of the most notorious Supreme Court case of all time–Dred Scot v. Sanford–an 1854 decision declaring African-Americans (then slaves) could never be citizens because it was contrary to the intent of the constitutional framers. The same logic persistent in the 1874 Minor v. Happersett case where the Supreme Court ruled that women could not vote for similar reasons. These decisions reaffirmed old prejudices and beliefs. The purpose of the law should not be to enshrine dogmas and prejudices. The Supreme Court said the same in its 1967 Loving v. Virginia decision striking down a Virginia law barring couples of different races from marrying. In Loving the Court declared marriage a fundamental right–the essence of a free society is letting people decide with whom they form a life. Democracy is about majority rule, but such a decision about who we can marry is not a choice for majorities to decide. This is why we have a Bill of Rights–to protect the minority from the tyranny of the majority.

As Justice Jackson eloquently declared in a case affirming freedom of religion: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to . . . freedom of worship . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” The same is true with marriage. I doubt anyone believes that the voters should have been able to decide in 1967 or today whether individuals of different races should marry. Proposals to put this to a vote simply mask racism and appeal to prejudice. The same logic applies to same-sex marriage.

There is no good public policy reason to bar same-sex couples from marrying. But the constitutional amendment is not about policy, it is about symbolic politics and voter mobilization. As was demonstrated in 2004 when Karl Rove and the GOP placed bans on same-sex marriage on the ballots across many states, it was a terrific hot button issue to mobilize voters. It worked. The religious conservatives turned out in droves.

Placing a ban on gay marriage on the ballot for 2012 might work for similar purposes. First, it is a symbolic payback to the religious right who backed GOP candidates in 2010. Thus, it is pandering to special interests. Second, placing the amendment on the ballot is simply an effort to repeat 2004. The hope no doubt is that this amendment in 2012 will offset what some think will be a better year for Minnesota Democrats when Barack Obama and Amy Klobuchar are on the ballot. Place this amendment on the ballot and as the theory goes, it will drive more conservatives to vote.

However, 2012 is not 2004 and such a strategy may backfire as public opinion has changed and it may engage progressives this time. This is a gamble the GOP senators are taking. Their purpose thus is not so much to pass the amendment but use it and cynically appeal to prejudice to pay off supporters and drive voter turnout.

Altered States: GOP Denial and the War Against Reality

Denial isn’t just a river in Egypt

Ever wonder what state politicians live in, especially Republicans these days? From the looks of it, it is the state of denial and it is a state where the poor, elderly, students, immigrants, working class, and the future do not live or matter.

Look at the budget process at both the federal and Minnesota state level and it is clear that many in the GOP are engaged in a war against the poor, elderly, students, immigrants, and working class. In Minnesota, the GOP proposed budget cuts that slash higher end spending, they are cutting money for health care for the poor, K-12 is taking hits, and local governments and their services are being targeted. At the federal level the cuts are also hurting the same constituencies, and in Michigan the governor supports legislation cutting back on unemployment benefits by six weeks. Talk about kicking people when they are down!

None of the above even includes the war on public sector unions in Wisconsin, Ohio, and other states, efforts to pass election voter ID laws to address nonexistent fraud, and of course restrictive abortion laws in Arizona, North Dakota, and perhaps Minnesota. Nor does it include the war against the EPA and it ignores global warming. Moreover, the cuts to education and infrastructure investment seem to ignore the need to invest in the future. Actually, except for wanting to protect a few fetuses, there is no regard for the future. Even with the fetuses, once born they are on their own and too ignored and condemned to attend poorly funded schools and drive on bad bridges and roads, unless they happen to be lucky and be born privileged.

It is clear who the constituency of the GOP is. They represent a state of America populated by corporations, the rich, male, and those who hate government. They do not seem to believe that when things get rough we have an obligation to help one another or that perhaps those better off and capable of sheltering the burdens or costs should do that to help out the less fortunate. It is an antisocial philosophy, reflecting the individualism of the marketplace or the community of civil society. It is Ayn Rand’s vision.

They believe that the free market is wonderful and that it can solve all our problems, while ignoring the recent economic crash of 2008, its lasting legacies, and the role government played in forking out taxpayer money to bail them out. They ideologically believe that cutting government, taxes, and regulation will spur on the economy, yet this philosophy is no more than supply-side economics rehashed yet again for the Nth time.

And where is this ideology taking us? At the federal level we have no budget and we flirt again with a government shutdown. In Minnesota, the GOP keep passing cuts and it is clear Dayton will veto them, making a special session if not a July shutdown possible. It is a philosophy of ideological purity, bent on the belief that compromise is bad and that anything short of a 100% win is a loss and a sacrifice of principle. Better to bring down the government than compromise. Better to hurt the least advantaged than make the more affluent help out. Better to assume the market will work at its optimum in theory than think about how it works in practice and in comparison to government in reality.

Academics are often accused of living in an ivory tower. Yet the tower or state that the Republicans are living in seems so much more detached from reality than any university classroom. It is a state of denial–denying the real world implications of their choices and how by simply serving their constituents greedy interests they are hurting society in general and sacrificing the future to the present. This is an unsustainable philosophy yet somehow it persists, partly because the Democrats are too weak, ineffective, or bought off by the same interests to challenge them, the public often too apathetic or ignorant to care or know, or the media often unable or willing to report the story about this reality.


A Note on the Economy

The stock market slowly climbs and corporate profits have rebounded, yet for most Americans there is little real sign of improving economic conditions. Housing prices continued to slide for the sixth month in a row, and there is little indication that banks wish to lend money and individuals want to buy homes for fear that their investment is not worth it. Millions of houses are poised to enter foreclosure and there is no sight that the real estate market is rebounding. But of course the good news is that the federal government made $24 billion on its loans via TARP to prop up banks and other financial institutions.

Additionally, consumer confidence again slipped last month and while payroll has increased, there is still no sign that businesses are ready to pump money into hiring. Instead, as the Financial Times reports, mergers and acquisitions are dramatically up.

It is now clear what businesses are doing with their money. They are returning to profitability, borrowing at low cost, and using the cash to buy out competitors, such as what AT&T is doing with T-Mobile. They are not investing in jobs or the economy. Welcome to the status quo!

Dodd-Frank, the federal law to restructure the financial markets, was supposed to address some of these problems. Yet it is clear that after the 2008 meltdown and crash little has changed. Banks helped destroy the economy, got bailed out, are again making tons of money and have bonuses to pay their executives, yet they refuse to loan money. Additionally, businesses are not hiring. It seems that the banks, corporations, and the rich are doing well, and the rest of us are being ignored. They got a free lunch in terms of bailouts from the taxpayers and the rest of us continue to pay for their mistakes.

Yes GOP policies are to blame for much of this, but the Democrats seem no better here. They hardly fight and Obama’s surrender on extending the Bush era tax cuts, while perhaps politically savvy, was and remains bad policy that hurts the poor and middle class. Last December Jesse Jackson and Pat Buchanan agreed the tax cuts were bad policy. Buchanan stated the cuts would exacerbate the deficit and Jackson asserted that tax cuts for the rich then would mean service cuts for the poor this year. Both were correct. The economy is marginally better now than in December, and it is clear we have failed to make changes to address the basic problems that 2008 revealed. We seem to have moved onto the future, assuming all is fine, in the state of denial we live in.

Abortion Fever, Misogynists, and the War Against Women

The Minnesota GOP and the Minnesota Citizens Concerned for Life (MCCL) don’t trust women. Yet again they are proposing a series of bills that would restrict the right of women to terminate pregnancies. Yesterday and today I submitted written and oral testimony opposing HF 201 and HF 936. The first bill would seek to deny state funding to pay for poor women to terminate pregnancies and the latter bill is a flat ban on abortion after week 20.

I testified that both bills are unconstitutional, I am including my testimony on HF 936 below for all to see.

Just a few thoughts.

First, the MCCL folks like to use emotion, photos (of fetuses), and pejorative statements to demean women and doctors. They refer to them as abortionists. I think pro-choice folks need to adopt a different language to describe their position–misogynists. Essentially they are anti-women and do not trust them to consult with doctors to make appropriate medical and ethical choices. I trust women. Not everyone may reach the decisions I would reach but it is democracy and the value of pluralist democracy. Each of us gets to make our own choices. Moreover, I find it strange that the concern for life for many seems to end when the fetus exists the womb. At that point there is little support for health care and other support to care for the children.

Moreover, I find it interesting that this group talks about ethics. One can only be held morally responsible if one has a choice. Their aim is to take choice away. With no choice there is no moral responsibility. Hmm.

Testimony of Professor David Schultz
in Opposition to HF 936
March 16, 2011
State Office Building 200
2:30 PM

Introduction
I am David Schultz and I am here to testify in opposition to HF 936.

Credentials
I am a professor at Hamline University in the School of Business where I teach classes in public administration. I have a Ph.D. in political science and a J.D. (Law degree) and currently hold appointments at the Hamline and University of Minnesota Schools of Law. I am the author/editor of among other publications the Constitutional Law in Contemporary America, Encyclopedia of the United States Constitution, Encyclopedia of American Law, Encyclopedia of the Supreme Court, and the Encyclopedia of Civil Liberties.

The views expressed here are my own and not those of the schools where I teach.

Arguments Against HF 936
There are three reasons why I oppose HF 936 and why you should vote against it.

* HF 936 is unconstitutional.
HF 936 clearly violates the United States and Minnesota Constitutions.

The Supreme Court ruled in Roe v. Wade, 410 U.S. 113 (1973) that a constitutional right to privacy was broad enough to protect the right of a woman to terminate a pregnancy. This right was reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505, U.S. 833 (1992). Roe articulated a trimester distinction or structure to determine the competing rights of the woman versus the state in preserving fetal health. Yet even under this trimester schema, the core holding of Roe articulated a fundamental right of a woman to terminate a pregnancy. That core holding remains valid today and HF936 is unconstitutional under it.

HF 936 is also unconstitutional when viewed under alternative tests or case law subsequent to Roe and Casey. In cases such as Casey and City of Akron v. Akron Center for Reproductive Health, 462 US 416 (1983), Justice O’Connor suggested use of the “undue burden”test to determine whether a state law interfered with a woman’s right to terminate a pregnancy. While there is some dispute whether this test is constitutionally mandated, there is no question that the flat ban on abortion proposed in HF 936 unduly burdens a woman’s right to terminate a pregnancy.

Finally, in Gonzales v. Carhart, 550 U.S. 124 (2007), the Supreme Court upheld a federal law banning so called partial birth abortions. That decision represents the singular instance of a specific ban on an abortion procedure being upheld. But even under Gonzales, women, even after 20 weeks, still retain a constitutional right to terminate a pregnancy such that a flat ban on this right, even with the exceptions noted in HF936, are unconstitutional.

In addition to violating the United States Constitution, HF 936 violate the Minnesota Constitution. In Doe v. Gomez, 542 N.W.2d 17 (1995), the Minnesota Supreme Court ruled that Article I, Sections 2, 7 and 10 of the Minnesota Constitution encompassed a right to privacy broader enough to protect a right of a women to terminate a pregnancy. In that decision the Court also ruled that the constitutional right to privacy afforded under the Minnesota Constitution is broader than that offered under the U.S. Constitution. Thus, if HF 936 violates the federal constitution then under the more stringent requirements of the Minnesota Constitution it is also unconstitutional.

* HF 936 Invites Legislating from the Bench and Disrespect for the Law
Courts are bound by precedent. Many criticize the judiciary and judges who legislate from the bench when they disregard precedent and make policy based on their own private views. Legislatures should not be in the business of encouraging disrespect for the law and legislating from the bench. Instead, legislatures should be encouraging judges to respect precedent and legislatures should not be in the business of passing law specifically aimed at encouraging the courts to legislate from the bench. This is exactly what HF936 does.

This bill, if it were to become law, is inviting and encouraging the United States Supreme Court to review and reject precedent. The purpose of this bill is to become a test case and invite Supreme Court review with the purpose of overruling Roe v. Wade.

If this legislature respects the law, respects the judiciary, and it wishes not to encourage judicial activism or legislating from bench, it should reject HF 936.

* HF936 is a Tax-Payer funding for a Private Law Suit
Finally, HF201 is a request to provide taxpayer dollars to fund a challenge to Roe v. Wade. It is an effort by a special interest group to commandeer our tax dollars and government lawyers to challenge established law and precedent. At no time should taxpayers be asked to foot the legal bills for private groups wishing to challenge established law and precedents, but this makes even less sense at a time when the state is facing a $5 billion dollar deficit. Does not the state and the legislature have better things to do with its money, legal resources, and time than to pass a bill that is most certainly unconstitutional, simply to pacify special interests? I think the answer should be obvious.

Conclusion
For the reasons specified above, I oppose HF936 and encourage you to do the same.

Thank you for your consideration.

Hardball and Overreach: Gutless Democrats and Overextended Republicans

Hardball
Why are Democrats so awful playing hardball and the Republicans so good?

Think about events in the last couple of weeks. The fiscal forecast for Minnesota drops the state budget deficit from $6.2 billion to $5 billion and what happens? Dayton drops his call for a one time special tax on millionaires and the GOP thumbs its nose at the rest of Dayton’s tax proposals.

In Congress, the Democrats are ready to fold on budget cuts.

In Wisconsin the GOP votes to gut the collective bargain rights of unions and Democrats look powerless.

On top of all this where is Obama? He seems ready to offer compromise on health care, he seems unwilling to fight for union rights, he does not draw a line in the sand over the budget. Instead, he seems almost irrelevant to the events going on around the country. On top of which, he seems paralyzed by what to do in Libya.

Yet again I see a pattern. Republicans attack, make demands, and Democrats sit back and take it. There is a partisan fight in American but only one party is fighting. Why is that?

Maybe there is a secret strategy that the Democrats have? Perhaps the strategy is that if they act reasonable and offer to compromise it will force the GOP to do the same? Or perhaps the idea is that if you look reasonable then it will win over swing voters who will think the GOP are inflexible ideologues? Perhaps, just perhaps, this the strategy of the Democrats.

But we see how well it works for them. This strategy worked terrifically for Obama in 2009 and 2010, did it not? It led to the GOP fighting the Democrats on everything, making them look ineffective, and eventually it led to the rout of 2010. Additionally, the strategy of compromise has cost the Democrats dearly. Extension of the Bush tax cuts is one example, production of a mediocre health care bill and a less than half a loaf financial stimulus and regulation bills are also examples. Additionally, by not fighting and trying to look responsible the Democrats have also upset its base and the many voters who elected them because of what they promised and then they failed to deliver.

But Democratic compromise encourages GOP resistance. For Dayton, who wants to balance the budget without any more cuts and with tax increases, his decisions to give up on some taxes simply encourages Republicans to dig in their heels. For weeks people have wondered when will the GOP release their budget? The answer is they do not want to release one. They do not want to be the ones to cut education and throw granny out of the nursing home. Instead, by forcing Dayton to compromise more and more they hope eventually to get him to propose the cuts they do not want propose. Shift the blame to the DFL for all the ugly cuts that will have to be made. This is the GOP strategy. Fight, don’t compromise, make the Democrats back down, and they will eventually do the dirty work. The same is happening in Congress, the GOP are threatening a government shutdown, leading Democrats to panic and compromise.

Perhaps part of why the Democrats are so bad at playing hardball is that they think they are responsible for the government. They have come to believe they are the party of the government and that their job is to protect it and the vulnerable. Good aims, but such a strategy is forcing them into a defensive posture where they keeping giving up ground one step at a time. It is a strategy of retreat, fearful of losing but nonetheless they are still losing.

Or perhaps Democrats are so bad at playing hardball because they really do not believe in their principles in the same way the GOP does. For at least a generation Democrats have been corporate liberals, taking money and cues from the business community. Obama, as I argued in previous blogs, seems bent on proving that he is pro-business to the point that he sides with banks over homeowners and companies over workers. Democrats ape to be GOP-wannabes, and perhaps that is why they do not fight so hard–they really do not believe in what they say they believe.

Or perhaps, in the end, the answer is simple–Democrats have no guts! They have no guts to fight for what they believe in and are unwilling to risk anything to get what they want and what they promised voters. Yes, Democrats are gutless, but why they have not learned that they need to fight is beyond me.

Overreach

Did the GOP overreach in Wisconsin? Polls suggest yes, but will it cost them? There are recall petitions across the state but it is not clear to me that voters will really punish them. Similarly, in MN there is a plethora of antichoice bills being introduced. Will this hurt the GOP?

Think about twin imperative at play in MN. The GOP wants to stay a majority party beyond 2012. To do that it needs to temper the extremist tendencies in its party that want to adopt very conservative anti gay and antichoice legislation. Most of this legislation probably does not command a majority support among the state general population. However, this legislation is popular with its base. Unlike Obama who failed to understand how he needed to reward his base, the GOP understands that. That is why it pushes legislation like this along with voter fraud and other similar bills.

On one level it does not matter if the legislation passes but is vetoed. The GOP has delivered to its base and that makes the happy. Moreover, look to see many of these proposals come back as constitutional amendments next year as a way to invigorate the GOP during a 2012 election cycle that might be more favorable to Democrats. Thus the balance here is how to maintain majority status and not alienate swing voters but at the same time appease the base?

The Democratic strategy seems to be to let the GOP push this legislation, hoping it will show the DFL base and swing voters that the GOP are extremists. However, simply hoping the GOP will overreach is not a viable political strategy. It is a defensive one, placing your electoral success on the hoped failures of the other side. This strategy is no different from the failed one of 2010 where Democrats tried to win by labeling the Tea Party as nuts and crazy. That did not work then and there is no guarantee that perceptions of GOP overreach will work to the Democrats advantage in 2012. At best it might lead to GOPers thrown out but it gives Democrats no mandate.

Eyewitness to History: The Minnesota Gubernatorial Debate at Hamline

On Saturday, October 9, Hamline University hosted a gubernatorial debate on campus in conjunction with Fox 9 news. I attended and observed the debate, giving me an opportunity to assess the candidates up close.

The Context

Coming into the debate, my sense is that Dayton had a slight lead of 3-5 points over Emmer, with Horner a distant third at around 12-15% support. The three candidates had some shared goals–avoid gaffes and motivate their bases–but they also had divergent objectives. Dayton has a lead, but his base is less motivated to vote this November. He especially needs to motivate women and the swing voters to turn out. If they do, he wins.

Emmer is behind slightly but his base–angry white males–are highly motivated to vote. Emmer also needs to win some swing voters to his side since I do not believe he can win simply by motivating his base, even if Dayton’s does not fully mobilize to vote.

Horner needed a knockout punch. He may have plateaued by capturing his base and a few swings, but he cannot rise much further unless he can convince voters that one of the other two candidates cannot win in November. Most probably, this means he needs to convince other GOPers that Emmer cannot win, thereby leading to a rush of voters from Emmer to him in fear that Dayton will win.

My analysis assumes at this point several things. First it assumes both Dayton and Emmer are holding their bases and that Dayton is doing better at capturing the swings than Emmer and Horner. In making this argument I am at odds with Larry Jacobs and what his MPR poll states. On Almanac I made these claims and Larry said his poll suggests that there are large defections from the bases of both Dayton and Horner, that swings are more in play for Horner than I think, and that in general the GOP is worried about holding on to its voters. He cites as evidence of the latter the Horner press conference with over a dozen former GOP state legislators endorsing him and the reaction that Tony Sutton had to this press conference.

With all due respect to Larry, I have already made clear why his poll is really flawed. Steve Schier has made parallel claims. I am unpersuaded that the poll accurately captures what the electorate and party alignment is in Minnesota and that means that the lead of Dayton’s is inflated in his poll. Larry’s poll is at odds with almost every other poll and it comes in conflict with recent Rasmussen polls showing both Dayton and Emmer holding 80% of their bases.

Finally, in many ways I do not think that the current GOP cares about other former legislators endorsing Horner. They represent an older GOP party replaced by a new more conservative one. Yes, they do not want to see them vote for Horner, but that is no longer their base. Sutton criticized their actions, but that is not a sign of panic.

About the only thing I agree with Larry and his poll is that it is difficult to determine who the likely voter is. Stacy Hecht well stated this problem on Almanac, with the other three of us (Schier, Jacobs, and me) concurring.

The Debate

This was the 23rd debate. In too many ways the candidates looked like they were going through the motions. Each had predictable answers to predictable questions, and each responded to one another the way you expected.

Each campaign had its groupies there and they applauded on cue. Fox 9 wanted a more contentious debate and encouraged candidates to cut off one another. They wanted theater. The candidates did not oblige, again seeming to prefer the predictable to the novel.

Dayton:

He seemed flat. He did not answer the questions directly and his style was weak. He did little to excite his base. He could have done more to link Emmer to Pawlenty and Palin to excite his base, but he did not. He also did not criticize the others very much and he did not do much to reach out to female voters or swings. Dayton did discuss education which is important to his base but the passion was not there.

His finest moment? Discussing why we need bullying legislation, he spoke of equality and same sex marriage. He also quoted James Madison on why government is needed here–men are not angels.” The nerd in me liked this.

Emmer:

He seemed on autopilot. The answer to everything was cut taxes, less government, and create more jobs. A variation of this was his constant protest that he was the only candidate who has put forth a balanced budget. No one but his base believes this. His answer to a student question about what he planned to do about the high cost of going to school? Schools needs to restructure and if we had more and better jobs then student debt would not be a problem! Hmm, tell that to anyone with huge students debts. Even a high salary does little to address the burden of high debt load.

His defining moment? He came out against new legislation to crack down on bullying motivated by anti-gay bias. He said we had too much government already and that it was up to parents teaching respect and giving teachers more authority to do what they need to do but cannot because of fear of lawsuits. Clearly Emmer was speaking to the base.

Horner:

He was clear with answers and specifics. As a communications specialist he knows how to frame answers. He did a good job distinguishing himself and pointing out he was not a DFLer or GOPer.

His finest moments? Two stand out. First, he gave specifics to what he would cut to balance the budget. He noted JOBZ and ethanol subsidies as two cuts. Also, when responding to Emmer, who said no to new anti-bullying laws because it was a private issue, Horner said when others get hurt it is a public matter.

And the Winner Is?

On style and substance (that is how he looked and in answering the questions) Horner won. However, he did not knock anyone out. Emmer was second, Dayton third. Emmer managed to say what his angry base wanted to hear, Dayton did not do much to excite the passion of his supporters.

Horner’s clock is still ticking but he needs major movement soon. Dayton needs to refocus in the last few weeks and appeal to suburban females to vote for him. Pitch commercials to them. He also has started linking Emmer to Pawlenty and needs to do more of that.

Emmer has his base excited but needs to pick up some moderates. Also, everyone is expecting him to do a meltdown like Hatch did in 2006. Maybe Horner, Dayton, or a third party add will do that. Emmer also has a Pawlenty problem in another way. Pawlenty is unpopular and does nothing for him but as governor he could assist in policy or other ways. However, Pawlenty is off on his Don Quixote-esque pursuit of the presidency and seems uninterested either in Emmer or Minnesota. However, that is another story for another blog.