Minnesota Lawyer
In the wake of the pitched battles waged over constitutional amendments during the 2012 elections, Senate Majority Leader Tom Bakk wants to put another question to voters in 2014: Should such constitutional amendments require super-majority votes in the Legislature before they make it to the ballot?
Under Bakk’s plan, proposed amendments would need backing from 60 percent of both the Senate and the House. That would replace the current standard, a simple majority. The plan would also impose a logistical hurdle by mandating that amendments enacted by one chamber then be enacted by the other chamber during the following calendar year.
Making the procedure “slightly more difficult” would also make ensure that future amendments have some bipartisan support, Bakk, DFL-Cook, said in testimony before the Senate State and Local Government Committee on Wednesday.
Initially, Bakk contemplated instituting a higher threshold through a simple change in statute. He said he decided to push for a constitutional amendment because future lawmakers could easily craft language to skirt a statutory requirement.
“Those of us who have been around here a while have seen a lot of legislation written with a ‘notwithstanding current legislation’ clause,” he said.
If enacted, the change could have a major impact on the intersection of policy and politics in the state. Had Bakk’s proposed threshold been in effect in 2012, the Republican-backed amendments to ban gay marriage and require voter ID — which narrowly passed the Legislature on party line votes — would not have qualified for inclusion on the ballot. Ironically, the intense and deep-pocketed opposition to those controversial measures helped the DFL recapture both the House and the Senate — and propelled Bakk to his current post as majority leader.
Bakk’s push to reform the current system predates the contentious gay marriage/voter ID fight. In 2010, he proposed a similar measure, only to see it stall in committee.
Bakk traces his interest in the issue to the 2008 vote on the Legacy Amendment. As a matter of tax policy, Bakk opposed the dictates of the amendment, which provides dedicated sales tax revenue to fund natural resources and the arts.
In Bakk’s view, the Legacy Amendment debate highlights one of the problematic aspects of the current system: While Legacy backers were able to cobble together legislative support and devise a focus-tested public relations campaign, he said, “There was nobody telling the other side of the story.”
Despite the widely held notion that constitutional amendments are difficult to pass, Bakk noted, voters approved all but one of the previous 18 amendments the Legislature placed on the ballot prior to 2012. The sole failure: a 1994 proposal to provide for off-track betting on horse races.
“I thought, if that’s the way amendments are going to run, at a minimum can’t we make it a little harder to get something on the ballot?” he said.
Based on the Legislature’s recent history, Bakk’s 60 percent threshold would make it more than “a little harder” for future amendments to reach the ballot. Since 1982, 10 of 21 amendment bills received less than 60 percent support from at least one chamber of the Legislature.
Among the notable amendments that would not have made it to the ballot: the 1984 amendment that allows for the exchange of public lands between government entities, the 1999 amendment allowing for the creation of the state lottery, and the 2006 amendment that dedicated motor vehicle taxes to highways and public transportation.
Sen. Dave Thompson, R-Lakeville, said Bakk’s plan would make it “pretty tough” to put many measures to a public vote. And a more-demanding two-thirds threshold, floated by Sen. Dick Cohen, DFL-St. Paul, would make it “nearly impossible to submit a controversial issue to the public,” Thompson said.
Even the Legacy Amendment — which tallied more votes than President Obama in the wave election of 2008 —did not garner enough support in the Legislature to meet Cohen’s two-thirds standard. Cohen, who said he derived the two-thirds standard from the U.S. Constitution, agreed to a motion to amend his bill to the 60 percent standard. The bill was referred to the Rules Committee.
Its political prospects are not clear. At session preview events, House Speaker Paul Thissen, DFL-Minneapolis, downplayed the likelihood of the House taking up any constitutional amendments, citing the “amendment fatigue” from the 2012 battle. But few Capitol observers think Bakk would bother with a lost cause, and the House companion bill is sponsored by Rep. Lyndon Carlson, DFL-Crystal, chair of the powerful Ways and Means Committee.
In a telephone interview, Roger Moe, the former DFL Senate majority leader and now a lobbyist, said Bakk’s super-majority proposal serves a good government goal: diminishing the likelihood that a political party that controls both chambers of the Legislature, but not the governor’s mansion, will push its agenda by asking the voters to tinker with the Constitution.
In 1980, Moe recalled, a proposed amendment to provide for even greater voter involvement — through the initiative and referendum process that is widely employed in many western states — narrowly failed.
Moe said a critical margin of opposition came from his old district in northwestern Minnesota, where voters were skeptical of that measure thanks to their proximity to North Dakota. “We get a lot of North Dakota news, and North Dakota has initiatives and referendum all the time,” Moe said.
Greg Peppin, a Republican consultant, said constitutional amendments were the topic of discussion among several GOP activists he spoke with last weekend. But he said the talk was focused on strategic dissection of the GOP’s push for gay marriage and voter ID, not the mechanics of the system.
“I don’t know that it’s partisan. I think it’s one of those agnostic issues at the Legislature,” Peppin said.
However, Peppin ventured, the default position for many Republicans is that the constitution is sacrosanct and should be changed only as a last resort — even if that change is intended to make the constitution more difficult to alter.
As a practical consideration, Peppin added, a higher threshold for legislative approval “would all but eliminate any constitutional amendment that would have any flavor of partisanship to it, anything that in fact or theory would help one party or another.”
If enacted, that higher threshold could also pose a potential problem for one of Bakk’s pet projects: the establishment of an independent council to set salaries for legislators. In the waning days of the session last May, the Legislature approved a bill to place that issue, in the form of a constitutional amendment, on the ballot in 2016.
While Bakk’s fellow senators passed the measure handily, it cleared the House by just 51 percent — nine points below the super majority standard that Bakk hopes to enshrine in the constitution this November.
