Judging from statements by legislative leaders to a lobbyists’ association Tuesday, the new year could bring a session full of constitutional amendments.
The pre-session Dec. 19 legislative forum was sponsored by the Minnesota Government Relations Council. There, caucus leaders from both parties discussed three potential constitutional amendments, possibly for the 2018 ballot. None are sure things.
The first would permanently dedicate sales taxes on auto parts to the upkeep of roads and bridges while making it illegal for lawmakers to raid the funds for any other purpose. That underlying idea, at least, seemed to have unified support among lawmakers on the panel.
It was less clear where the lines of support lay on the other two ideas.
Balance of power
One potential amendment could strip away the governor’s ability to line-item veto legislative budgets. Gov. Mark Dayton used that tactic in 2017 and his vetoes survived a recent state Supreme Court challenge.
Senate Majority Leader Paul Gazelka said a constitutional amendment is only one option among several that he plans put forward next session as a way of restoring the Capitol’s power balance.
“I will just say that I am open to it. I am not sure that will be the direction that we go,” Gazelka said.
“I would prefer to have a good long discussion with the both the House and Senate majority and minority,” he added, “to make the best decision and make sure that, moving forward, we have an equal-powered legislative branch and governor.”
House Minority Leader Melissa Hortman, DFL-Brooklyn Park, pushed back at amending the Constitution to achieve the goal. She pointed out Dayton vetoed the Legislature’s budget lines in retaliation against a so-called “poison pill” provision buried deep in a government finance bill. That measure would have defunded the Revenue Department had Dayton vetoed the GOP’s successful tax bill.
“If we talk about putting a constitutional amendment on the ballot to prevent the governor from line-item-vetoing money from the Legislature,” Hortman said, “then I think we should think of a counterbalancing way so that the Legislature is not allowed to defund the executive branch and shut down the state government.”
House Speaker Kurt Daudt, R-Crown, said that prior to Tuesday he had heard no talk of any constitutional amendment to re-establish the balance of power.
However, he said, “That might be a potential fix for it.”
Line of succession
The other amendment discussed Tuesday would deal with the suddenly controversial line of succession to the lieutenant governor’s post.
With Lt. Gov. Tina Smith set to be sworn in as a U.S. senator on Jan. 3, the state Constitution dictates that Senate President Michelle Fischbach, R-Paynesville, will take over for Smith. Fischbach is willing to join the Dayton administration, she has said, but she also wants to remain a senator.
Due to a series of late 1960s and early 1970s constitutional amendments, it is unclear whether she can. But Thomas Bottern, the Senate’s nonpartisan staff counsel, said in a recent memo to Fischbach that an 1898 state Supreme Court decision, Marr vs. Stearns—which declared that a sitting senator can serve both roles—remains viable case law and supports her stance.
Senate Minority Leader Tom Bakk, DFL- Cook, opposes Fischbach’s choice. Gazelka said Tuesday that Bakk has indicated he would sue if Fischbach occupies both posts when Smith goes to Washington. Bakk was not present for Tuesday’s panel discussion.
Asked during the forum if he thought a constitutional amendment might be in order to fix the line-of-succession problem, Daudt answered obliquely.
“I think we all need to sit around the table and say here are the problems, now what is the best way to kind of work these out?” Daudt said. “If it takes a constitutional amendment or two to fix that, we probably all should agree on what that should be and do it just for the good of the state.”
The speaker was more direct in an interview after the panel discussion. Daudt said he is not sure a constitutional amendment is the best solution to the line-of-succession problem, but the option will be thought through.
“I want to throw that on the table with everything,” he said. “We are all pretty smart. Let’s try to figure out what’s the best way to solve all these problems.”
Daudt added that his own position in the line of succession also needs to be straightened out.
The Constitution makes no mention of the speaker in the line of succession to the governor’s office, but Daudt said he recently learned that, statutorily speaking, he is among those in line to take over should a governor vacate. But neither the statute nor the constitution mentions his place in the line of succession to lieutenant governor.
“I just think that should be clear,” he said.
Whatever means is chosen to sort out succession questions, Daudt said one objective is a must-have. If a lieutenant governor’s post ever again opens up between elections, future governors should be allowed to select their own lieutenant governors, the speaker said.
Speaking to the audience, Assistant Senate Minority Leader Susan Kent, DFL-Woodbury, expressed skepticism that any constitutional amendments are needed right now.
On the other hand, she said, the brinksmanship on display at the Capitol in recent years needs to be eliminated. Without specifying ways to do that, she agreed that the coming session will present leaders opportunities to put a stop to it.
“There are too many incentives to do it this way and we need to see if we have some opportunities address that,” Kent said.
Speaking afterward, Kent said she supports Bakk’s contention that Fischbach should not hold a job in both the legislative and executive branches. But how that gets resolved remains up in the air, she said.
As to the line-of-succession issue, she hinted at possible openness to a constitutional amendment that eliminates any ambiguities. Echoing a point Daudt also expressed, Kent said requiring a Senate president to succeed to the lieutenant governorship, rather than letting a governor make the pick, seems archaic.
“You feel that it is a vestige of an old way of doing things,” Kent said. “I think a year ago we were like, ‘We don’t really need any more constitutional amendments anytime soon.’ But some new issues just come up. So we will just have to see how it all plays out.”