Otto v. Wright County: Why the Legislature and the Counties Should Lose

On February 4, the attorneys representing Minnesota State Auditor Rebecca Otto filed suit contending that the State Legislature’s law allowing counties to secure private audits instead of using her office violated the State Constitution.  In her complaint she alleges that the law essentially privatizing audit functions violated the state constitution in two ways: Either it was a separation of powers violation stripping her office of its “core state functions,” or the legislation violated the constitutional single-subject rule in that it was tied together in a law that did a host of other interrelated things.
The Auditor’s arguments parallel the claims I made in a June 8, 2015 Minnpost op-ed of mine.  There my focus mostly was on the separation of powers claim.  I have enclosed the original piece below.  (Please note:  I have taught state constitutional law since 1992).
The Auditor’s complaint builds upon my state case law arguments by emphasizing the historical role of the auditor back to the territorial era in performing audit functions.  This type of argument, while not dispositive, adds a strong argument suggesting that when the Minnesota Constitution was drafted its Framers original intent was to give the State Auditor core constitutional functions that included the type of auditing at dispute in this case.   Though this complaint does not make it, one can also cite case law from other states to reinforce this type of constitutional argument.
The more second single subject argument is smart.  It builds off of state case law declaring legislation shall embrace a single subject.  In cases such as Associated Builders and Contractors v. the Honorable Jesse Ventura the Minnesota Supreme Court has taken an increasingly hard line against allowing the legislature to create bills that cobble together an unrelated collection of provisions.  Other states too have single subject rules and courts across the country have ruled that the purpose of these constitutional provisions is to prevent the type of legislative shenanigans that was evident with this bill.
While former Minnesota Supreme Court Justices such as Paul Anderson have argued that the single subject rule should require the entire law to be stricken, a majority of the Court has not said that.  Why is this significant?  If the Minnesota Supreme Court wants to avoid a constitutional confrontation between the Auditor and the Legislature they can use the single subject rule simply to strike down that provision, thereby avoiding the issue of whether the Legislature actually over-reached in its privatization.
Here is my original Minnpost op-ed.

Resolution of the budget standoff in Minnesota has come down to the status of legislation that guts the state auditor’s office. Whatever the final resolution of this dispute, one thing is clear: The legislation is foolhardy and probably violates the Minnesota Constitution.

The state auditor is an officer provided for in the Minnesota Constitution and its primary responsibility is to audit local governments in the state to make sure that they are spending their money appropriately. It is an important position in the state that promotes accountability to ensure that tax dollars are spent the way they should be. Yet the Legislature voted to privatize the audit functions, giving local governments the option to hire private audit firms. The governor signed this bill, but now seems to want the Legislature to undo this.

The governor should never have signed a bill that allowed for this. Nothing against private auditors, but this is a duty for the state auditor. The privatization will cost taxpayers more in the long run – as is typically the case with many privatizations. I pointed this out in a MinnPost op-ed back in 2011.


Conflicts with two articles in the Constitution
But in many ways, it probably does not matter whether the governor wins to get this privatization overturned – the provision is probably unconstitutional, conflicting with both Article V, section 1 of the Constitution creating the office of the auditor, and Article III, section 1, the separation of powers clause of the Constitution.

There is a rich jurisprudence in Minnesota that carefully protects and respects separation of powers. One of the best cases on this issue is State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777 (1986). In that case, at issue was a 1985 law enacted by the Legislature, in special session, which transferred most of the responsibilities of the state treasurer, an executive officer, to the commissioner of finance. The reason for the transfer of responsibility was that the treasurer, then a constitutional officer, essentially abandoned the state and was no longer performing his duties. The Supreme Court rejected this transfer of duties.

The court reasoned that even though the duties of the treasurer were prescribed by the Legislature, that “does not allow a state legislature to transfer inherent or core functions of executive officers to appointed officials.” One branch of government, or even another part of the executive branch, cannot act in such a way either to undermine the core functions of another constitutional part or make it impossible for it to perform its constitutional duties.

Other Minnesota cases have reinforced that point. In In re Marriage of Sandra Lee Holmberg at issue was whether a law regarding child support giving administrative law judges power to modify district court orders and to assume duties of district court judges violated the state separation of powers clause. The Supreme Court said yes, arguing that the transfer of power violated separation of powers. In supporting its decision, the court referred to precedents and decisions in other states reaching the same conclusion.

More separation of powers rulings
In State v. Baker the Minnesota Supreme Court voided a state-enhanced gross misdemeanor statute as unconstitutional because it allowed for local imprisonment without a 12-person jury trial. Here the court said that the law sought to redefine crimes to avoid the constitutional mandate. In State ex rel Birkland v. Christianson, the court declared that the Legislature cannot change form of government which would change separation of powers. In In re Temporary Funding of the Judicial Branch, a case involving funding for the judicial branch as a result of a government shutdown in Minnesota, the Supreme Court ruled that it had the authority to require the Legislature and governor to fund the courts, for failure to do so would prevent the judiciary from performing its constitutional duties and therefore it would be a separation of powers violation.

Similar conclusions were reached regarding separation of powers and constitution in clerk of court's compensation for Lyon County v. Lyon County Commissioners. Other state courts have reached similar conclusions regarding separation of powers and legislative efforts to strip constitutional offices of their powers.

The constitutionality of the legislation to privatize some of the auditor’s functions resides in how far the Legislature may act to prescribe the functions of that office. This issue must be considered in light of the question: To what extent does this law impede the core duties of the auditor? Given past precedent, there is good reason to conclude that this privatization is unconstitutional and in a lawsuit the auditor would likely prevail.

Previewing the 2014 Minnesota Legislative Session: Issues and Contrasting Agendas

    This week the Minnesota Legislature reconvenes. To predict the dynamics of the 2014 session one needs to understand how the governor, the House and the Senate, and the Democrats and Republicans all have different interests in what should happen in this short session.  While in some cases their interests may converge, there are also powerful forces that may push them in very different directions, potentially creating interesting conflicts that set up the 2014 elections.  Specifically, lookto see how party, region, and chamber and branch of government create contrasting interests in what happens in the 2014 session.

The Issues
    What are the major issues for the 2014 session?  Passing a bonding bill is the main reason for the session.  Estimates are that a bill of about $800 million is what both the Democrats and Republicans seem to want, but beyond the amount, the exact projects remain in dispute.
    Second, left over from 2013 are three issues–a hike in the minimum wage, anti-bullying legislation, and a fix to the civil commitment program for sexual offenders.  All three are hugely controversial items that will divide the parties.  Third, the legislature needs to decide what to do with the budget surplus–spend or save.  Finally, other issues such as whether to repeal the business warehouse tax, finding a more permanent funding solution for the Vikings stadium, and business law reform (something Dayton has talked about) are possibilities.
    What will we not see in 2014?  Government ethics reform.  Minnesota’s government ethics laws in terms of disclosure and conflict of interest are vastly out of date.  The legislature made it worse last session in voting to change the gift ban law for themselves, making it yet again possible for them to be wined and dined by lobbyists.  Representative Winkler is correctly proposing in HF  1986 to undue this exemption, but it will be a shocker if this legislation passes.  But even if it does more reforms are needed.  The state could use a revolving door bill to place limits on former legislators from coming back and lobbying the legislature at least for a year.  About half the states have laws like this.  More lobbyist disclosure, legislator conflict of interest of laws, ethics laws for law governments, and contribution limits to the parties and caucuses are all needed.  But don’t expect to see any of these reforms proposed.

The Coming Elections
    Overshadowing the session are the 2014 elections.  The governor is up for re-election as is the entire House of Representatives.  This is not necessarily a good year for Democrats.  No this is not 2010 all over again where anger against Obama and health care reform mobilized Republicans, depressed Democrat turnout, and swung independents toward the GOP.  This year Dayton’s approval ratings are riding high, as are Senator Franken, and perhaps there are some coattail affects here.  Yet  in a non-presidential election year Minnesota’s voter turnout drops to the low to mid 50s–a 20 or so plunge from presidential election year turnouts.  The biggest loss comes in terms of voters who generally support Democrats–the young, women, and people of color.  Democrats can do well this year in Minnesota, but they need to mobilize their base and keep the swing voters on their side.
    This means, at least for the Democrats, that they want this to be a short legislative session where they can get their main task accomplished–passing a bonding bill–while giving the Republicans little opportunity to find anything to use against them in the election.  Thus in general Democrats will not push too hard this session, much to the dismay of many of their supporters.  Conversely, Republicans are looking for inroads, wedge issues of use to them that will rally their base and peal away independent voters from the Democrats.
    Don’t look to see gay marriage be a 2014 general election issue.  It is a loser for Republicans, except as an issue to use within the party to beat up fellow party members.

Contrasting Political Agendas
    However, the DFL House, Senate, and Dayton have contrasting interests.  The entire House is up for  election and the DFL there do not want to tackle issues that will hurt them.   The Senate is not up for election. At best, there are probably no more than a dozen or so seats that are swing in the House, and the DFL will need to hold them to keep their majority.  Look for them to avoid medical marijuana and anti-bullying legislation.  Both are too controversial and may be perceived to be issues that produce political backlash from conservatives.  Moreover, the DFL has said that they want to move on minimum wage, but again don’t look to seem them push for a wage that really makes a difference.  It would make sense to pass meaningful minimum wage laws and with a built-in index for future automatic increases.  The DFL may have only this session to address the minimum  wage issue and if it were smart it would take advantage of the opportunity.
    No one wants to touch the sex offender civil commitment program.  It is probably unconstitutional but any change in the law lends to potential partisan criticism that the other is soft on sex crimes.  This is an issue that both parties would rather see go away–at least until 2015.  Alternatively, the GOP would love the DFL to act, giving the former a great issue for the 2014 elections.
    Additionally, the DFL needs to decide what to do with the budget surplus.  The House would love to be Santa Claus and do a tax cut–such as repeal the business warehouse tax–or provide other cuts that will be politically popular.  The DFL Senate does not see it that way, perhaps preferring to save it in a rainy day fund.  So far Governor Dayton has not made it clear what his priorities are, and his interests may be closer to the House in terms of what to do.
    Among other types of legislation that need to be addressed is fixing the fix. By that, the fix to the Vikings Stadium funding is still not financially secure it needs revisiting.  The money to pay for the  state’s share of the stadium is still not built on a secure revenue stream and unless another one is found, the public will be paying for the stadium out of general revenue.  Looming over the session also will be MNSure.  How it operates in the next few months and what might be done  legislatively about it may be one of the make or break political issues in the coming session.
    Finally, plans by Polymet mining pose a huge risk for the DFL, potentially pitting urban progressives and environmentalists against unions and Iron Rangers.  While there are no immediate calls for legislative action on this issue there is still the potential that it could creep up in bills, forcing the Democrats to make difficult choices.

Conclusion
    No legislative session is devoid of politics.  The same will be true in 2014.  How that politics plays out in next couple of months will tell us a lot about what might happen in the November elections.  For now, look to see how the issues divide along the party, branch and chamber of government, and region.

The End of Bipartisanship (and why that may be good)

    Legislative partisanship is gone and that may be good.  It was probably overrated.
    The holy grail of politics for many is bipartisanship. Good public policy is only possible if the two parties compromise, work together, and enact laws with the aim of furthering the public good.  Such a belief suggests truth lies in the middle and that compromise is the essence of good government.  But that is not always so.
    Some lament that the 2013 Minnesota legislative session was anything but bipartisan.  Significant evidence supports this.  Consider legislation creating the health care exchanges for the Affordable Care Act (Obamacare); 99% of DFLers voted for it, 98.8% of Republicans voted against it.  Similar partisan divides existed with legalization of same-sex marriage with 95.5% of Democrats voting yes, 94.4% of Republicans voting no.  Or the House and Senate tax bills with 92% DFL yes and 98.8% GOP no.  Finally, 92% of DFLers voted for the  legislation authorizing day-care workers to unionize, no Republicans supported it.  For these four bills,  94.6% of votes cast by Democrats were yes, while 98% of the GOP votes cast were  no.  Had there been floor votes on minimum wage and the anti-bullying legislation one probably would have found similar percentages. 
    Are Democrats guilty of single-party rule?  Perhaps, but  Republicans are not innocent.  Look back to the 2011-12 legislative session at two of the biggest bills–the votes authorizing the constitutional amendments banning same-sex marriage and requiring photo ID when voting.  For the marriage amendment, 96.2% of Republicans votes yes, 96.5% of Democrats voted no.  With the elections amendment, 99% of Republicans voted yes, 100% of Democrats voted no.  Overall, 97.7% of DFL votes cast on these amendments were no, while for Republicans 98.3% were yes.  When the GOP were in the majority, the two parties were polarized.  Straight-party line votes are becoming more the norm of Minnesota politics, paralleling a similar trend in Congress over the last 30 years.  Why?  There are four major reasons.
    First, the end of the Cold War meant that the forces to drive compromise at the congressional level ended.  The battle against communism forged a foreign policy consensus and compromise that translated often into agreement on domestic policy, even at the state level.  Second, political scientists talk of the declining marginals–the disappearance of competitive swing districts that could shift control from one party to another.  This is due to gerrymandering but more importantly to a geographic sorting of where we live.  We hear of blue and red states but increasingly households and neighborhoods are politically sorting themselves out.  In Congress there may be less than 50 swing seats,  in the 2014 Minnesota House of Representative races, maybe 15 seats are competitive.  The rest are solidly partisan, creating little incentive to compromise,
    Third, American political party composition has changed.  Historically American parties were less ideological than at present.  One could point to both major parties having a mixture of conservatives, moderates, and liberals.  Such coalitions made bipartisanship possible.  But American political parties are more ideological now–with clear divides on social and  and economic issues.
    Fourth, the transformation into ideological parties is fueled by increasingly  large differences over the simple question “Why government?”  Republicans and Democrats have developed rival views on the role of government in the economy, the value of taxes and public spending, and on a range of social issues about reproductive rights and same-sex marriage.  When there is a basic disagreement over “Why government?” it is hard to compromise.  At the end of the day, there is no compromise on the right of same-sex couples to marry–you support it or not.
    These four trends have also driven politics in Minnesota to make it less bipartisan.  But additionally, Minnesota politics further polarized after the Wellstone plane crash in 2002.  His death and the events in the last few days before the 2002 Senate race–including the memorial service–exacerbated the forces already at play in Minnesota to reinforce the polarization.
    This is where we are now.  The structural forces that once drove bipartisanship are gone and the new reality is one of partisan rule in Minnesota and across many states that are legislating depending on which party is in power.  Just compare Minnesota to Wisconsin. 
    Should we worry about this?  Not necessarily.  Agreement for agreement sake is not good if it passes bad policy.   Sequestration was the product of compromise.  Minnesota Democrats and Republicans  agreed on a new campaign finance law this session that increases contribution and spending limits, weakens disclosure, and enhances the ability of lobbyists to leverage political influence.  Both were bad laws, the product of bipartisanship.
    Regardless of the desirability of bipartisanship, it is over.  Voters need to accommodate to a world of partisan rule or bipartisan gridlock.  They have to decide whose politics they like better and vote for it–giving them what appears to be real policy choices and options at elections.

Partisanship at the Minnesota Legislature–How Divided?

So how divided were the Republicans and Democrats in 2013 Minnesota Legislative session that just ended?  A quick sample of the numbers suggests a big divided.

I looked at four of the biggest bills that the House and Senate voted on during the 2013 session.  These four were the creation of the health care exchanges for the Affordable Care Act (Obamacare); legalization of same-sex marriage; the tax bill; and legislation authorizing day-care workers to unionize.  Arguably these were the four most important if not contentious bills the legislators had to vote on in 2013.  What I found was that for DFL in the House and Senate, 94.6% of votes cast by Democrats were for  yes on these bills, while 98% of the GOP votes cast were  no.  Had there been floor votes on minimum wage and the anti-bullying legislation I suspect we would find similar percentages.

So does this prove that the DFL is guilty of one-party rule or that they are acting in a partisan fashion when in the majority?  Maybe.  But just for comparison, I looked back to the 2011-12 legislative session at two of the biggest bills–the votes authorizing the constitutional amendment banning same-sex marriage and the one authorizing the constitutional amendment requiring photo ID when voting.  Here, 97.7% of DFL votes cast on these amendments were no, while for Republicans 98.3% were yes.  When the GOP were in the majority, the two parties also seemed very divided.

In a future blog or op-ed I will discuss what all this means and what it says about the possibility of bipartisanship.

Grading the 2013 Minnesota Legislative Session: C+ for DFL but F on Reform and Bipartisanship

Students across Minnesota are finishing their exams and awaiting their final grades. The 2013 Minnesota legislative session is over and now it is time also  to assess the performance of one-party rule in Minnesota.  So how did the DFL do?  If the legislative session were to be graded, it earned an overall C+ but F grades when it came to working together and in making structural reform.
    Republican State Representative Steve Drazkowski, of Mazeppa, stated it well:  "We had an election back in November. And yes, Minnesota, elections have consequences."  Had Tom Emmer rather than Mark Dayton been elected governor in 2010 Minnesota might well be a state that looks different today with more restrictive laws on voting, abortion, taxes, and perhaps on same-sex marriage.  But Dayton did win and Republicans overreached with the marriage and elections amendments and in precipitating a government-shutdown.  They were ousted, yielding the first one-party rule in Minnesota in 20 years. 
    DFLers promised a lot.  They pledged a balanced budget with no gimmicks, a bonding bill, and a host of other pieces of legislation addressing economic development, bullying, guns, minimum wage, and unionization for day-care workers.  The governor also pledged to solve the funding formula for the Vikings stadium, raise income taxes on the wealthy, invest more in schools, give some property tax relief to homeowners, and transform the sales tax system to include clothing and more services.  All this the Governor and the DFL pledged to do in a bipartisan fashion.  Such a pledge was made out of fear of overreach if they were to purse issues such as legalization of same-sex marriage.
    No matter what post-mortem is written up, this will forever be the session as the one known for legalizing same-sex marriage.  It did so largely along partisan lines and it did so in part because of intense lobbying from supporters of same-sex marriage who unleashed a drove of lobbyists at the Capitol.  It also passed because of the perfect storm of shifts in national public opinion and state views that even if not supportive of same-sex marriage they were not opposed.  Passage of it should relieve Republicans of advocating a losing issue for them, but its legalization may also give DFLers little bonus point in the 2014 House elections.
    Democrats largely delivered on Dayton’s tax pledge for the  wealthy will pay more, but largely abandoned the reform of the sales tax system, opting instead for the safer option to go after smokers with $1.60 more per pack.  This tax will be used for general revenue and to help finance the Vikings stadium.  In do the latter, the governor and the legislature are essentially using tax dollars to finance the stadium, and there is no clear indication that these revenues will be enough to offset the miserable pull-tab revenues.  The State is addicted to addiction, counting on smokers to continue to smoke and not using the new revenue to offset smoking-related expenses.
    The budget was done on time barely, and DFLers displayed terrible time-managed skills and the ability to reach consensus among themselves, revealing what came close to single-party gridlock. But whether the budget was done gimmick-free and balanced is a matter of debate.  Originally pledging to pay back the K-12 shift, that was abandoned by the DFL.  Additionally, the  nearly $800 million borrowed off the tobacco bonds last session should have been paid back, and that too is not reflected in the balanced budget.  The State failed to make any real changes in any tax law to make it more stable–such as a change in property taxes to help in-state businesses, or adjust sales taxes.
    Single-party rule also produced a stripped-down bonding bill to pay for capitol renovations,  money for Rochester and the Mayo Clinic, tax credits for Mall of American expansion, more money for K-12, a freeze of public university higher education for two years, a daycare unionization law, and some property tax relief for home owners.  One should also not forget that the health care exchanges were created to allow state implementation of Obamacare.  All of these are significant accomplishments.  The DFL failed on enacting anti-bulling legislation, a new minimum wage bill,  and significant gun legislation.  For all of these changes the DFL deserves an overall C+ grade–it delivered on many of its promises.
    Yet the legislative session failed to produce much in terms of bipartisanship.  Too many of the votes followed party lines, revealing a state largely divided.  Both the Democrats and Republicans will go to the voters in 2014 telling their side of the story, leaving Minnesotans the final  verdict regarding whether the Democrats deserve to hold on to the governorship and House majority  control.
    Finally, where the DFL really failed was in terms of structure reform.  There was no comprehensive sales or property tax reform.  There was no major reform of the way government does business.  But more sadly, the biggest story the media has taken a pass on is how this is a legislative session that not only failed to take the chance to make structural reforms but actually moved in the wrong direction and caved into lobbyists and special interests on a range of issues.  The legislature passed campaign finance un-reform legislation that would increase contribution and spending limits dramatically, allow for lobbyists to give more gifts to legislators, and also increase the level of disclosure for contributions, thereby making it easier for many, including lobbyists, to give more money but with less disclosure and transparency. To a large extent, this is a dismantling of the remaining vestiges of the Marty reforms from the 1990s and a giant step back in government integrity.  Minnesota has already had shrunk and fallen from its heyday when it was national leader in political ethics, earning failing and near failing grades from the non-partisan Center for Public Integrity in these areas. The new changes do nothing to reverse that trend.  For these reasons, the session deserves an F when it comes to structural reform, doing little to change the way the State does business for good.

Minnesota Vikings and Pulltab Revenues Should We be Shocked?

Are we to be shocked and surprised that the estimates for the pulltab revenues for the Vikings

stadium were essentially made up by gambling interests and not verified by the governor and legislature?  Perhaps we should be no more so than was Captain Renault in the movie Casblanca when he declared that: “I'm shocked, shocked to find that gambling is going on in here!”  The story of the Vikings pulltab debacle unfortunately is a common occurrence, the result of pressure politics, money and politics, and the often lack of capacity or will of public officials to analyze and digest complex information.

            The Vikings deal was the proverbial effort to place lipstick on a pig.  It was a bad deal for Minnesota no matter how you cut it.  As I point out in my recent book American Politics in the Age of Ignorance: Why Lawmakers Choose Belief Over Research, the evidence is practically incontrovertible–public investments and subsidies for professional sports is perhaps the single worst economic development investment that can be made by the government.  Passing aside the arguments about such subsidies being no more than welfare for sports owners or public gifts to a private and heavily profitable private business, study after study demonstrates that no matter how you measure it–number of jobs, cost per job, or overall economic impact–public investments in professional sports is a terrible return on investment.

            So why did Minnesota do it, especially when surveys were clear that the public overwhelming opposed the use of tax dollars for the Vikings (as it did for the Twins just a few years before)?  A cluster of reasons explain it.  First, the Zygi Wilf’s of the world deploy scarcity of teams, the threat of leaving a market, and the emotional tugging of fan loyalty to pressure politicians to support such deals.  That was definitely the case with the Vikings.  It has to explain in part Governor Dayton’s nearly inexplicable choice to make doing the stadium deal a top priority for him.  As a business person he should have known better that this was a bad economic deal for the state but he still pushed hard for it.

            But second, the Vikings stadium deal demonstrates the power of pressure of politics.  Since 2002, the Vikings have directly spent more than $6 million lobbying the state legislature for a new stadium.  Wilf alone since he took over at the owner has spent nearly $4.3 million lobbying.  Add to that political contributions and then money spent by other groups such as the Chamber of Commerce, the hospitality industry, and the buildings and trade unions, totally expenditures to lobby for a new Vikings stadium would easily top the ten million mark in the last decade if not since Wilf took over.

            The legislature, especially the DFL last year, was under enormous pressure to do a Vikings deal because the governor wanted it and his party wished to support him.   But the public was insistent that no public dollars be spent, so how to make both the governor and the public happy?  Find another source of revenue.  Enter pulltabs.  One can only suspect that the legislature and the Gambling Control Board was under enormous pressure to make the pulltab numbers work no matter what.  Explicitly or implicitly the understanding was this.  Yes solely consulting with the gaming interests was stupid and a conflict of interest, but that stupidity was compounded along the way.  At some point someone in the governor’s office should have asked how the numbers were generated, or the same should have occurred in the many legislative hearings.  But it did not.  Why?

            First, no one really wanted to know.  The deal was more important.  Second, One can see a scenario of bureaucracy where everyone thought that someone else had checked the numbers and thus by the time they got to them they just assumed the numbers had already been vetted. 

            But third, there is the capacity question.  By that, most of the people looking at these numbers lacked the skills or knowledge to read them or make estimates regarding the pulltab revenue stream.  Yet there were many red flags that should have given one reasons to question them.  We were in the middle of a recession with less disposable income for gaming, especially among the poor who were already the biggest gamblers and among the most exploited by casinos and gambling already.  Minnesota already had a robust and extensive lottery and charitable gaming industry–what evidence is there that there was an untapped market that could be expanded?  Finally, what evidence was there that there were many organizations that wanted to do these pulltabs, again given how well developed  the existing gaming industry was already? 

            These are just some of the questions that should have been asked by legislators.  That is there job.  Maybe some did know better but they remained silent, especially among the DFL who felt they had to support the governor.  Overall, DFLers produced 55% of the votes for the stadium.  Additionally, of the 90 Democrats voting on the stadium 62 or 69% voted for it, while 50 of 109 or 46% of the Republicans supported it.  Given that a DFL governor pushed the bill, the DFL produced the majority of the votes for the stadium, and over two-thirds of them supported the Vikings proposal, the Democrats own the stadium.  Yet the Republicans should not be let off the hook–many of them voted for it and Senator Julie Rosen and Maury Lanning–Republicans, sponsored the bill in the Senate and House.

            Government can do better than it did here.  The bigger issue is how do we increase the capacity of public officials to make good decisions.  But here the Vikings pulltab story points to a huge bipartisan public fiasco due to a pressure politics, negligent or willful blindness to the facts, and simply bad decision making.  Given that, we should be no more shocked about the Vikings deal than Captain Renault was about gambling in Casablanca.

March 15–Day of Decision for Cautious Minnesota Democrats

By March 15, we will  have a better idea of what Minnesota Democrats in the legislature are made of.  But if early indications are correct, timidity, cautious, and maybe disorganized are the words that best describe the DFL majority approach to governing this year.
    First, why is March 15, so important?  This is the first committee deadline at the state legislature.  Every year the legislature agrees to deadlines for legislation.   These deadlines are referred to a committee deadlines.  For a bill to have legs or remain viable it must pass some committee in its house of origin by a certain date.  If it does not, the bill is presumed dead and theoretically it may not be taken up again.  This year the first committee deadline is March 15, for policy bills.  Thus a bill introduced in the House of Representatives must pass a committee by March 15, for it to live another day. 
    The second critical deadline is March 22.  For any bill that passed in one chamber by March 15, its companion bill in the other body must pass a committee by March 22.  Finally, March 29, is a third deadline for major appropriation and finance bills.  These deadlines do not apply to bonding, budget, and tax bills.
    What all this means is that expect to see by March 15, votes on critical issues that include guns, same-sex marriage, election reform, and a host of other issues that the DFL majorities have bee holding hearings on for the last several weeks.  What committees do with those issues in next several days will be the clearest sign so far regarding how the DFL is interpreting the 2012 elections.
    But one does not really need to wait until March 15; instead, the DFL is proving to be timid, cautious, and inept at governing and it really seems to have defined its mandate from last year as more rejection of the GOP for over-reach that a call for boldness and change.  Just consider a few examples.
    Guns.  The DFL seem all hot and bothered to legislate on guns with proposals for universal background checks and bans on assault weapons placed on the agenda.  Yet soon the assault weapon was pulled and then this last week Representative Paymar’s bill for background checks was effectively made DOA with an NRA-sponsored one that commanded 74 sponsors.  The bill follows the NRA line of targeting those with mental illness as the cause of gun violence.  Maybe it will pass, but anything that does pass will largely be ineffective or fail to address the multi faceted problems  of guns and violence in Minnesota.
    Reproductive Rights.  Perhaps the biggest disappointment this past week was a 71-58 vote in the House to ban insurance coverage for abortion for women who secure their health care coverage  under the Exchanges being set up in Minnesota pursuant to the Affordable Care Act.   Even DFLers supported this bill.  For the tens if not hundreds of thousands of women in Minnesota who will get their health care coverage through this bill it means that they will not be able to exercise their reproductive rights unless they have their own money.  This limit may very well be unconstitutional  under the Minnesota Constitution.  But regardless of the constitutionality, this shows a DFL party hardly united and supportive of women’s rights.
    Same-sex marriage.  Legalizing same-sex marriage portended to be the hot button issue of the 2013 session that would vex the DFL.   Was the demise of the Republicans last November due to overreach on the social issues and the constitutional amendments?  The DFL seems to have accepted that view and has moved very cautious on same-sex marriage.  It was not clear that the majority wanted to move on this issue and Dayton’s tepid stance on the issue–I will sign the bill if it reaches my desk–is hardly a major legislative push on the topic. 
    But now to complicate the issue a Star Tribune poll on same-sex marriage suggests that a  majority opposes legalizing it.  The poll may be flawed but regardless of that, it adds support to DFL inaction on the issues.
    Election reform.  Right from the beginning the DFL seems to be pursuing election reform issues that really will not make much difference.  It is concentrated its efforts on voting reform.  Yes,  changing absentee voting to early voting is not a bad idea but largely two major recounts in this state have shown that voting is not a major issue.   However, even with this issue the House Elections Committee seems to puttering around.  The biggest problems are in the areas of lobbyist reform, legislature disclosure, revolving door,  and unlimited soft money contributions to parties and the caucuses.  There is no movement let alone bills on this topic.  The response by the legislature?  Some legislators and the governor want to raise contributions to candidates–hardly a reform and instead more of a bill of convenience for them.
    Taxes.  Governor Dayton’s Minnesota Miracle round two is dead.  Efforts to extend sales taxes to services and clothing and services are dead as the governor has withdrawn support for both.  The misfire on taxes best describes how timid and inept the DFL politics seems to be this session.
    The tax proposals were dead even before the governor nixed them.  While the economic theory behind taxes services is good, the governor played the politics all wrong.  He never brought the DFL in from the start to get them to buy into the tax reform and it was Tom Horner and not Dayton who had originally proposed sales tax reform.  Dayton was pushing an idea he did not prepare his party for and he also pushed ideas that had significant and powerful lobbyist and special opposition to.  There was no way the DFL was going to support an issue opposed by major interests that fund their party, caucus, and candidates.
    Moreover, Dayton forgot that the DFL has a two year term and the Senate four.  House DFLers on taxes and a range of issues have very different interests in moving bills on these topics.  They will seen the voters sooner.  In addition, the DFL is still very much a coalitional party with those from the urban cores, suburbs, and Iron Range having very different interests.  Dayton who was so smart as a gubernatorial candidate in bringing these different interests together has fallen largely flat in doing that legislatively.  Finally, this is the same DFL that was consistently out-foxed politically by Governor Pawlenty–they were unable then to use their majorities effectively and the same appears true now.
    I remember my hardcore DFL friends telling me over a year ago that Dayton and the DFL  were biding their time for the second two years of the governor.  Their theory was that with the GOP out and the DFL in real change would happen.  I am still waiting.

Fear and Panic, Minnesota Republican Style

    Fear and panic may be the words for now to express how Republicans, conservatives, and business leaders such as Charlie Weaver view the coming 2013 Minnesota legislative session.  The fear and panic is that with the DFL having control of the legislature and all of the constitutional offices, businesses and the affluent will face higher taxes, the economy will go to ruin, and the Chamber of Commerce will not be able to pursue objectives such as restructuring teacher tenure,   public sector pensions, or state government in general.

Have no fear though, it is unlikely that the DFL control will live up to your anxieties for many reasons.

First, this is not the DFL Party of Humphrey, Mondale, Freeman, and Wellstone.  This is a DFL party headed by a pro-business governor and a party firmly rooted in the Twin Cities suburbs such as Edina. These districts are business-orientated and affluent and it is unlikely that DFLers from areas such as Edina will stray far to the left.  Democrats elected in these suburbs are not liberals, they won tight races in swing districts and any serious move to the left will cost them their seats and possibly a House majority in 2014.

Second, were the DFL majority moving to the left it would have made John Marty chair of Health and Human Services.  Marty, who supports a single-payer health insurance program, has the seniority to receive this chair but was passed over for this position.  Don’t look to see the DFL push real progressive positions.

Third, a DFL governor and coalition already demonstrated this year its pro-business attitude when it gave the Vikings and the business community a new stadium.

Fourth, the business community has already overreached and many of its goals are beyond what they should be addressing.  Issues such as teacher tenure are beyond what the business community should worry about, especially if it concerned about the quality of K-12.  If the latter is the issue, then lobby for early-childhood education, fully funding K-12, addressing racial disparities in schools, and providing teachers, parents, and students with the support they need for kids to succeed. 

Finally, live in reality.  Consider the last time the DFL controlled the governor’s office and both houses of the Minnesota legislature.  It was from 1987 to 1990 when Rudy Perpich was governor.  Wanting to make Minnesota the brainpower state, the governor pushed for reforms in K-12 that helped make sure the state’s schools were among the best in the country and students tested at or near the top in national performances.  It was a time when Minnesotans and businesses were among the highest taxed in the country, and also a time when Minnesota had one of the highest median family incomes in the nation, lowest crime and incarceration rates, and a high concentration of Fortune 500 companies.

Additionally, consider the unemployment rate during those four years.  While the national average was 5.7%, in Minnesota it was 4.7%.  Compare that to October, 2012, with a Minnesota unemployment rate of 5.8%.

Unemployment Rates
Year            USA        MN
1987            6.2        5.1
1988             5.5        4.3
1989             5.3        4.4
1990             5.6        4.8
4 yr Avg        5.7        4.7

Oct 2012         7.9        5.8

Perpich opened up the International Trade Center in St Paul, and under him and the DFL control of the legislature, Dayton-Hudson Corporation (now Target) was able to pressure them to hold a special session in 1987 to change Minnesota corporate law to prevent them from being taken over by Dart Corporation.

The point?  Minnesota and its businesses did not do so badly under the last time when the state was under DFL control.  Now, 23 years later, a more moderate and business-friendly DFL is in charge.  The evidence does not support the panic and fear the business community has and, in fact, it may find a supportive party willing to accommodate them in many situations.

Why sloppy drafting will kill the photo-ID amendment

 Today's blog appeared in the Community Voices section of Minnepost on June 21, 2012.

Whatever the merits of the Minnesota voter photo-identification amendment, chances are that it provisions will not take effect soon, if at all, even if adopted by voters this November.

The reason is not that it is a bad bill, which it is, or that it will do little to combat the virtually nonexistent in-person voter fraud in the state, which is also the case. Instead, the amendment's authors did such a horrible job of drafting it that either the Minnesota political process or the courts will prevent it from ever going into effect.

Criticism of the voter-ID amendment has centered on the issues of fraud, disfranchisement and cost. Critics contend that it is a solution in search of a problem. Two major recounts have demonstrated that in-person voter fraud is de minimis and that what little that does exist will not be remedied by photo identification.

Additionally, the argument is that the photo-ID requirements will disenfranchise many populations, such as the elderly, students, the poor, and people of color.

Finally, critics assert that the photo ID will cost the state and local governments millions to administer, while also inflicting personal costs on individuals. All these are valid criticisms, but none of these speaks to the problems with the amendment that will prevent it from going into effect.

The single-subject rule
Assume the voter-ID amendment does pass this November, what then? The first major defect is that it violates the single-subject rule. Article IV, section 17 of the Minnesota Constitution states: "No law shall embrace more than one subject, which shall be expressed in its title." Minnesota, similar to what is found in approximately 40 other states, mandates that a specific bill or law include only one subject. This rule also applies to constitutional amendments in Minnesota.

Courts across the country have taken an aggressive position in recent years applying the single-subject rule, especially to ballot propositions and constitutional amendments, to invalidate measures voted on by the people. The reason is simple: Voters should not be forced to vote yes or no on ballot propositions that contain more than one subject, especially if they object to one of the provisions. Imagine a constitutional amendment asking voters "Should the mosquito be named the state insect and abortion banned?" I may oppose abortion or dislike mosquitoes and forcing a yes or no on the entire proposition makes it difficult for voters to express their true preferences.

Consider the voter ID proposal language put before the voters: "Shall the Minnesota Constitution be amended to require all voters to present valid photo identification to vote and to require the state to provide free identification to eligible voters, effective July 1, 2013?" This ballot question has two subjects: One refers to presentation of a valid photo ID and the other to requiring the state to provide free identification.  Conceivably, a voter could favor presentation of voter photo ID but not providing free identification, or vice versa.

In the last few years in cases such as Unity Church of State Paul v. Minnesota (2004), and Associated Builders and Contractors v. Ventura (2000), the Minnesota courts have aggressively enforced the single-subject rule, and there is no reason to think they will not do so here. Thus, even if the voters approve this amendment, it is likely the amendment  falls to the single-subject rule.

But backers of the amendment were stuck. Courts across the country have invalided voter identification bills under state or federal constitutional clauses because they did not provide for free identifications. This happened, for example, in Georgia. Voter-ID supporters thus had to attach this provision to the constitutional amendment. Were this ordinary legislation maybe the free ID would have survived single-subject, but as a constitutional amendment it creates problems for voters in making their choices.


The enabling problem
Again assume voter ID passes this November. The amendment requires additional enabling legislation to go into effect. Unless the Republicans obtain veto-override majorities, Gov. Mark Dayton can simply veto any enabling legislation, rendering the voter ID amendment unenforceable. Assume the DFL takes back one house of the Legislature; it can refuse to act. In either case, the amendment is dead. Assume the DFL takes back both houses; then either the Legislature does nothing or it enacts  enabling legislation so watered-down that it meaningless.

GOP Rep. Mary Kiffmeyer contends no enabling legislation is needed, since the constitutional amendment is self-executing or self-enforcing. She is wrong.

First, in Freeman v. Goff (1939) the Minnesota Supreme Court stated that constitutional provisions are presumed directory or mandatory. The presumption is that they must be enforced as described in the amendment unless there are other reasons to think not. But the voter-ID amendment cannot be enforced as written without enabling legislation explaining critical terms such as what constitutes a "valid" photo identification. The vagueness of this word dooms enforcement, leaves public officials open to charges of abuse of discretion, and raises potential due-process and equal-protection violations if they simply try to enforce the requirements as written.


The precedents
More important, repeatedly Minnesota courts have long declared in cases such as  Willis v. St. Paul Sanitation Co. (1892), State v. Kiewell (1902), State v. McColl (1914), Aase v. Langston (1928),  Payne v. Lee (1946), and In re Wretlind (1948) that: "Prohibitive clauses of the constitution such as the due process clause are self-executing and require no legislation for their enforcement."

By that, generally Bill of Rights provisions that limit the state and protect individual liberties are self-enforcing, whereas provisions that direct the state to do something require enabling legislation. In the case of the voter-ID amendment, at the very least the state is required to provide free identifications, necessitating enabling legislation defining what is considered a valid ID and how it will be distributed.  The same is true when it comes to the first part of the amendment, requiring presentation of a "valid" photo identification. Again, what constitutes valid? This, too, requires enabling legislation to clarify and implement.

Overall, the potential political landscape after the November elections, as well as firmly entrenched state and federal constitutional principles, are enough to bog down and prevent enforcement of the voter-ID amendment for years even if it does pass this November. Millions of dollars will be wasted on this amendment in an effort to pass, defeat, and litigate it, and taxpayers will be angry no matter the result.

When that happens, supporters of the amendment can blame themselves and the authors of it for sloppy drafting that doomed the amendment from the start.

The Lesson of the Vikings Stadium—Democracy Failed

Please note: This piece originally appeared in Politics in Minnesota on May 16, 2012.

The duties of elected officials are never easy. But in the case of the Minnesota Legislature, the deliberations and final votes on the Vikings Stadium reveal a travesty for political accountability, open government, and questionable politics.

The eighteenth century Irish statesman and political writer Edmund Burke is famous for his 1774 campaign speech to Bristol electors where he described two duties for elected officials. He suggested that members of parliament either served as delegates–voting to ratify the exact views of the constituents–or to exercise their best judgment and vote for what they considered to be in the best interests of the people or country. Burke opted for the latter, contending that the deliberative nature of governing meant that a legislator should use “his unbiased opinion, his mature judgment, his enlightened conscience, [and] he ought not to sacrifice to you, to any man, or to any set of men living.”  It is not the job of legislators to follow popular will, but instead to vote based on what they know is best, regardless of the will of the constituents. Burke lost his election with this speech.

In light of significant public opposition to public funding for the new Vikings Stadium, many are wondering if those who voted in favor of it will be punished this November. The simple answer is no. Back in 2006 when the State Legislature authorized a new Twins stadium that November no House or Senate member defeats could be attributed to their votes for or against the stadium. The same will probably be true again this year in the general election. The economy, the government shutdown, constitutional amendments on voter ID and same-sex marriage, as well as national issues and a presidential election are sure to loom as larger issues on the voters mind than the stadium.

Yet just because the stadium will probably not be a general election issue (it may be a problem in primaries or nominating conventions especially for Republicans who supported it) does not mean that there were no problems with how the deliberations occurred. Instead, the Vikings Stadium debate reveals both bad process and politics.

First, there is the problem with open government. Almost from the start the Vikings debate was done behind closed doors. Governor Dayton conducted the debate as if he were a CEO in a private company. Critical meetings, such as with Zygi Wilf and NFL Commissioner Roger Goodell took place behind closed doors. In fact, the Vikings deal seemed dead until the Commissioner visited and then suddenly the Senate took a vote. Who knows what was said or promised at that meeting? But the point is that numerous open meetings laws were probably broken by the Governor and Legislature in securing the deal. This continued the contempt for open government first demonstrated last year.

Second, consider who voted for the stadium. Of the 201 legislators, 199 cast votes. Of that 199, 112 or 56% of the legislators voted yes. Among those seeking re-election to their seat again this fall, 88 of 158 or 56% voted for the stadium. For the 31 legislators indicating that they were not running for reelection to the Legislature, 20 or 65% voted for the stadium. There were another ten legislators not running for their seats but seeking another office and only 4 or 40% of them voted for the deal. Put another way, for those seeking election this fall, 55% voted for the stadium, for those not seeking office, 65% did.

Voters will not have an opportunity to hold 31 legislators responsible for their votes. Perhaps not seeking reelection freed that latter up to vote for what they thought was best, or perhaps to let voters be damned. Or perhaps it was the product of money well spent by the Vikings.

Last year the Vikings spent $800,000 to lobby for a new stadium. Since 2002, the Minnesota Vikings have spent $5.66 million lobbying the legislature, governors, and local metropolitan governments to secure a stadium. This sum is garnered from reports on file with the Minnesota Campaign Finance and Public Disclosure Board. This is in addition to political contributions to the candidates and the legislative caucuses. In 2010, the Zygi Wilf and the Vikings gave $27,600 to all four legislative caucuses. We will not know until next year how much they spent in lobbying and political contributions this session to buy a stadium but their investment was worth it. The role of money and the failure of the public to know in real time how much money the Vikings spent to buy influence is a crisis in transparency for Minnesota government and one of the reasons why the state earned a D grade from the Center for Public Integrity for ethics and openness in government.

Third, consider the odd alignment that the Vikings vote yielded. Overall, DFLers produced 55% of the votes for the stadium. Additionally, of the 90 Democrats voting on the stadium 62 or 69% voted for it, while 50 of 109 or 46% of the Republicans supported it.

Given that a DFL governor pushed the bill, the DFL produced the majority of the votes for the stadium, and over two-thirds of them supported the Vikings proposal, the Democrats own the stadium. In backing it, the DFL squandered its political advantage in November. Republicans steal $2 billion from K-12 and borrow $700 million from the state tobacco settlement to produce a gimmick-riddled budget in 2011 to end the government shutdown.

Now the DFL give corporate welfare to a billionaire. Moreover, in doing the Vikings deal the DFL overrode the charter amendment in Minneapolis requiring voter ascent for any stadium bonding over $10 million. They do that with the support of a DFL mayor and city council. So much for taking the moral highroad when it comes to priorities. So much for support for democracy. The Democrats practically make the Republicans look fiscally responsible and it becomes almost impossible for DFLers to criticize them in the November elections when it comes to the budget and spending. The Democrats now look more corporate and pro-business than the Republicans they want to criticize.

The Legislature, especially the Democrats, had a choice—follow their constituents or ignore them. They chose the latter and will probably get away with it, unlike Edmund Burke.

Mismanaging the Legislature. . .and the State

A quick note to an really interesting article in the Star Tribune pointing out that the Minnesota House of Representatives is over budget on its per diem.

The per diem is the daily expenses the legislature gives itself beyond the salary. Yes, the per diem seems legitimate so members can pay for room and board. However few of us get a salary and then room and board expenses, but our legislators do. Yes, the salary of $31,500 is not much but that is their salary and way back to the days when I was with Common Cause I advocated eliminating the per diem and raising the salary instead. Per diems are relatively hidden  and hard for the public to track. Some legislators take them, others do not, and when they were raised a few years ago by Larry Pogemiller they were done as an underhanded way to get around a real vote and accountability on really raising a salary.

What is bad here with the House going over on per diem is that they are being rewarded for bad management. Billions are cut from the state budget, we had a shutdown last year, employees were laid off at the state, and there is little progress now on resolving the issues in the current session. Yet the House still gets rewarded for bad behavior.

Note also who is at the top of the list for per diems--the leadership. It also looks like the GOP are higher on the list this time than the DFL.

The moral of the story: The House cannot manage either itself or the State. This story reinforces my point that the Legislature and the leadership deserve a failing grade.

A Failing Grade for a Failing Legislature

I am an educator. Were I to assign my students three projects and they failed to complete them by the appointed time their grade would be an F. The same goes with the Minnesota state legislature.

The single most important task they are supposed to do in even number years is pass the bonding bill, They have yet to do that, putting them on mark to join 2004 as the only other year in recent memory when they failed in that task. When that happened the Senate was DFL, the House GOP, and because only the House came up for election, the GOP paid dearly and lost a lot of seats.

This year there are three major tasks before the legislature now–the bonding bill, a GOP plan to zero out property taxes for the businesses, and the Vikings stadium. Two of the three ideas are bad. The Vikings stadium is welfare for a billionaire and as I have pointed out scores of times, public subsidies for pro sports teams is a bad economic investment. Yet Dayton and Ted Mondale persist in spinning this fiction. Zeroing out taxes for businesses will–as the GOP concede–create future budget shortfalls yet they claim that the cuts will be made up with future economic growth. Welcome to supply side economics again. Only the bonding bill makes sense as a task to accomplish.

However, while these are the three items on the legislative agenda now, don’t forget that earlier in the year there was talk of reforming government as an agenda item. Where is it? Instead, this legislature has passed bills on abortion, guns (Stand Your Ground), and fireworks. In the 20+ years I have observed the legislature this is about the least productive and worst performing one I have ever seen. They might as well adjourn now. But they will not.

The bonding bill, which Dayton wants, is being held hostage. The GOP really want the tax cut and are indifferent to the Vikings stadium, at least the leadership is. They have announced that the three issues are linked and a global agreement has to be reached on all three before any of them will be brought up. This is a great game of chicken here.

In theory the GOP Legislature should have the upper hand. Dayton has two items he wants and the GOP only one. They are relying on Dayton caving on taxes in the same way he caved last year to end the government shutdown. They are assuming he will blink first. However, the legislature is up for election in 2012 and Dayton is not, giving him some advantages which so far he seems unwilling to use. Instead, Dayton says more negotiations will occur. These negotiations, it should be noted, are behind the scenes, sacrificing again in this year open and transparent government.

What is preventing agreement on these items? I put the blame first on leadership on the part of the governor and the GOP leadership. They seem so inexperienced even in their second year on the job. Second, the GOP leaders have little control over their rank and file and cannot seem to corral them. They are very divided on many issues but still united on the social issues and those which seem to matter very little. Finally, the DFL minorities seem to be giving away what little advantage they have by seemingly going along with a willingness to deliver votes for the Vikings stadium when their best tactic is vote against it and them blame the GOP either for giving millions to a billionaire while defunding K-12 or letting the Vikings go if no bill is passed.

Overall, this is a dismal session deserving of an F grade no matter what happens.

Touchdown! How the Vikings are buying political influence to get a new stadium

Taxpayer dollars spent to build sports stadiums for professional teams are an economic waste of money. Study after study proves this. Yet demands to provide public money to build a new Vikings stadium refuse to die. Why? The reason is simple — Zygi Wilf and the Vikings have spent millions lobbying and in political donations to persuade the governor and legislators to give them a new stadium — and the investment may be paying off.

Wilf took principal ownership in the Vikings in 2005. According to records filed with the Minnesota Campaign Finance and Public Disclosure Board, since 2006 the Vikings have spent $2.82 million in lobbying, including $1.16 million in Wilf's first year as owner. In his first five years as Vikings owner Wilf has averaged $564,000 per year lobbying.

Complete data for the first half of 2011 is not available and we will not know what the Vikings spent this year until next January. However, the Vikings did employ five lobbyists who disbursed nearly $29,000 lobbying. Lobbyist disbursements are merely a tip of the iceberg in total lobbying expenses, and there is every reason to think the Vikings spent way in excess of the $564,000 average.

But lobbying is not the only way to use money; contributions to candidates and to the legislative caucuses, too, are smart investments. Just look at 2010 alone. Zygi Wilf and his family made contributions totaling $17,000 to candidates for governor or the Legislature in 2010. They covered all the major gubernatorial candidates, including a total of $3,000 to Mark Dayton and $1,000 to Tom Bakk. Lester Bagley, principal lobbyist for the Vikings, added another $1,850 to this.

But contributions do not stop there. In 2006, Wilf and the Vikings spent a million plus dollars on lobbying but nothing on political contributions. In 2008 the Vikings, Wilf, and his family spread $18,500 among the legislative caucuses. And then in 2010, the Wilfs gave $27,600 to all four legislative caucuses. Bagley made contributions of $1,850 to the Republican House and Senate caucuses, as well as to the Chamber of Commerce and to the Third (Tom Saxhaug) and Sixth District Senate DFL (Tom Bakk) caucuses. These 2010 contributions represent a significant ramping up of Wilf's political activity to get a stadium.

Given the spending on lobbyists, political donations to the caucuses and political candidates, it is no surprise that Gov. Dayton and legislators are pushing for a new Vikings stadium. Wilf and the Vikings have spent a few million to reap hundreds of millions in public subsidies and eventually more in terms of profits from the new stadium.

Not a bad investment. It is this spending by Zygi Wilf that explains why the debate for a public stadium persists.

This blog also appeared in Minnpost on August 22, 2011.

The Minnesota Budget Deal: Lipstick on a Pig

The deal that ended the government shutdown in Minnesota was terrible both in how it was negotiated and in what it produced. While initially all parties who negotiated it described it as bad, increasingly they are defending it, seeking to find beauty in its ugliness. Yet let’s call this effort what it is—putting lipstick on a pig!

A Bad Budget Process

The government is shutdown. Barricades block access to the capitol. The legislature is suspended. The press and public are barred from observing negotiations. The opposition is kept in the dark. Once a deal is struck and the legislature is allowed to meet the public is given little notice about their deliberations which take place in the dark of the night. Members are restricted in their debate; they have no time to read the bills. They are told to vote for the bills and ordered to be finished by dawn. Sound like politics in a dictatorship or former communist country? Welcome to Minnesota.

From the week before the shutdown to the ugly end last Wednesday, Minnesota was a model in anti-democratic politics that violated all accepted norms of transparency, openness, and accountability. The Republican leadership and Governor Mark Dayton insisted on secrecy to allow for candidate debate, demonstrating hostility to democracy, a contempt for process, and an indifference to open government. What they did is possibly also illegal, violating Minnesota Statutes §13.D, the Open Meetings Law. Were a local government to have done what the legislature and the governor did it would violate the law. The process was bad.

And A Bad Budget Deal

But did the ends justify the means? Did the bad process produce a good result? Except for the delirious who have to salvage something out of it, no one likes the deal struck. But there are two types of dislikes. One is where everyone has to give but the final product is good for the state. The other is where everyone gives and it is bad for the state. The deal struck is the latter.

The budget deal is bad for Minnesota. Nothing was done to address the long term structural deficit the state faces; it is more budget gimmicks. K-12 faces more shifts and possibly borrowing from schools that never gets repaid. Minnesota’s competitive economic edge has historically resided in its highly educated workforce. Yet the budget deal sacrifices long term welfare and economic good for the state, continuing a repeated raiding of education money that questions how much of a priority Minnesota really places on schools.

The tobacco settlement money gets robbed, 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, Minnesota continues 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 borrowing hide that reality.

In short, long term problems and needed investments are sacrificed to end the current shutdown crisis. The governor and the legislature shut Minnesota government down to reach this deal? Given how bad it was, maybe it would have been better to continue the shutdown.

The Leadership Crisis

But why such a bad deal? One can point to political gridlock, dueling claims of political mandates, ideological polarization, and a host of other issues. But ultimately the blame comes down to a lack of leadership among the three principals–Senate Majority Leader Amy Koch, Speaker of the House Kurt Zellers, and Governor Dayton.

But why the lack of leadership? One answer is that all are inexperienced. None of them had ever been responsible for moving a budget through the legislature. For Koch and Zellers, they are new leaders heading up caucuses for the first time in years in the majority, composed of many new members and rookie committee chairs. They were not up to the job. For Dayton, the lack of leadership was surprising given his resume. Yet his experience in executive positions is distant, his relationship with the DFL party has always been fragile, and this was his first time shepherding a budget through the legislature.

Terrific, Minnesota’s political leadership this year were rookies and JVs.

So here is the leadership deficit: If this is the best deal Dayton, Koch, and Zellers can negotiate, with a process that was undemocratic and possibly illegal, then that questions their ability to lead the state and their parties. The three should have never let Minnesota get to this place.