Minnesota Lawyer
Jack Davies has a nifty idea for making sure that the likes of Omnibus Prime never rise again.
Omnibus Prime was the nickname given to the 900-plus-page finance and policy megabill passed by the Legislature late last session. Gov. Mark Dayton summarily killed it with a slash of his veto pen.
Davies, a former state senator and Court of Appeals judge, has crafted what he pitches as a cure for the Legislature’s chronic abuse of the state constitution’s single-subject clause. That’s the constitutional provision that supposedly bans legislative logrolling and the construction of gigantic take-it-or-leave-it megabills. It hasn’t worked so well.
Omnibus Prime was so bulky, in fact, that the brawny Sen. Tom Bakk, DFL-Cook, once struggled to lift the thing up for cameras without losing his grip and having its loose leafs scatter on the floor.
The Davies proposal wouldn’t actually end the practice of piling bills on top of bills in that way. In fact, lawmakers could make all the Omnibus Primes they want under Davies’ plan.
But there is a catch. Any policy measures — or “codified laws,” as his proposal’s language terms them — “enacted in a major finance or revenue bill or omnibus tax or appropriation bill” would soon die.
The proposal would render policies passed inside megabills as impermanent as the appropriations they contain. Unlike most policy measures, appropriations are not considered part of permanent law because funding is set for finite periods — generally for the two-year biennium.
“I would just amend the law to say that all provisions of an appropriations bill die at the end of the biennium, not just the money appropriations,” Davies said. “Riders to the appropriations bills could not amend the permanent law of the state.”
Davies envisions his proposal amending Chapter 16A.28 of Minnesota Statutes, the section that determines what happens to unused appropriations.
‘Tight control’
Davies, 86, served in the Minnesota Senate from 1959 to 1983 and was the Judiciary Committee chair for his last 10 years at the Capitol. He later served on the Minnesota Court of Appeals from 1990 to 2000.
During his legislative career he helped convert the state constitution to plainer English, helped establish the state’s Sentencing Guidelines system and authored the pioneering bill that created no-fault auto insurance. An ideas guy, you might say.
His no-rider idea, which already exists in draft form at the Revisor of Statute’s office, is intended to guard against the temptation to use impermanent finance bills to pass permanent policy.
That tactic often is used in times of divided government, to force a governor from a minority party to accept majority party policies. In exchange, the governor gets needed funding—but only after biting a very unpleasant tasting bullet.
“It’s a way for the majority to keep that tight control, you see,” Davies said. “The problem is that it’s inappropriate legislative procedure to have a multi-issue, yet ‘single subject’ bill.”
Still, Davies’ plan would permit it to keep happening. It would just become a shakier prospect. “[The policy] would only last a year and a half or whatever it was until the end of the biennium,” Davies said. “And then it would die.”
Take an example from the vetoed 2018 mega-omnibus supplemental budget bill, which covered fiscal years 2018 and 2019.
Among its innumerable policy changes, that bill would have created a third-degree sex crime for peace officers who engage in sexual contact with someone who is either physically or constructively restrained.
If that measure was a rider inside an omnibus that passed this year—and had Davies’ provisions also been in place—that behavior would cease being a third-degree sex crime on June 30, 2019.
Dayton consistently warned the Legislature not to combine policy and finance into gigantic bills, but was not heeded. In 2017, the Republican Legislature buried a poison pill provision in that year’s mega-omnibus bill that would trigger layoffs to state Revenue Department staff if Dayton vetoed the GOP tax bill.
When Dayton discovered that embedded in a bill he felt compelled to sign, he retaliated with a line-item veto of the Legislature’s two-year budget. He then ordered lawmakers back to special session to “complete their work.” Instead, the Legislature sued.
In a limited sense, Dayton won that case—his veto was sustained as constitutional. But the larger political question of whether the governor used unconstitutional coercion on the Legislature remained unresolved. So did the whole single-subject question.
The court later rejected State Auditor Rebecca Otto’s argument that the Legislature violated the single-subject clause when it approved a measure in an omnibus bill that allowed counties to rely on private auditors.
Legal observers took those actions to mean that the state Supreme Court is unwilling to resolve the executive and legislative branches’ political disputes through enforcement of the single-subject clause.
But with his proposal in place, Davies said, that wouldn’t matter so much because the Legislature and governor would have resolved the problem politically—in precisely the way the courts have urged them to.
Problem already solved?
Ironically, going into the 2019 session with a new DFL House majority and a new DFL governor, Davies thinks the single-subject problem is resolved, at least in the short term.
He said he believes Governor-elect Tim Walz, who has pledged to veto any mega-omnibus bills that cross his desk. He also trusts that incoming House Speaker Melissa Hortman, DFL-Brooklyn Park, will keep her pledge not to push any such bills out of her chamber, and reject any that come her way from the Senate.
The second half of that pledge might not be as big a stretch as it might sound at first blush.
Traditionally, the Senate has been less amenable to combining finance and policy—though it has been going along with the House lately. Still, Senate Majority Leader Paul Gazelka, R-Nisswa, said near the close of the last session that he would consider steering away from massive omnibus bills in the future.
Hortman reiterated her no-Omnibus-Prime pledge in a Nov. 14 interview with Minnesota Lawyer.
“What I hope we will do—which we used to do under Republican and Democratic speakers—is pass a bunch of little bills,” Hortman said.
None of that puts a stop to Davies’ quest. He said his proposal might be needed in the future, if another House leader emerges who is as friendly to megabills as outgoing House Speaker Kurt Daudt, R-Crown, has proven to be.
“I am looking to the long-range, to if we ever have someone like Daudt in such a powerful spot where he can in effect say, ‘You’ve got to do it my way or you don’t get anything,’” Davies said.
“I don’t want someone like that in the future not to have one more obstacle in the way of abusing the single-subject clause,” he said.
Davies thinks that with Hortman and Gazelka leading the House and Senate, his little piece of legislation might just have a fighting chance next year. He thinks he might even be able to sell Gazelka on the idea.
“I think he could be persuaded,” Davies said. “And I think his staff could be persuaded. I think a number of senior members in his caucus remember what the Legislature was in the old days—not many days ago, as a matter of fact. Just a very few years.”
