I mentioned last week that St. Olaf Political Scientist Dan Hofrenning had predicted on Almanac that Tim Pawlenty will be the 2012 Repub nominee. Several TPaw-dislikers asked me what Hofrenning could be talking about, so I called the always-pleasant-and-generous-with-his-views Hofrenning and asked him.

The answer was fairly simple: Hofrenning believes that of the current list of likeliest GOP contenders, Pawlenty is the only one who seems thoroughly acceptable to both of the party's major factions, the social and the economic conservatives.

He sees the GOP likely contenders as carrying serious political problems. He dismisses Sarah Palin's chances. If she runs, she might play the role played by Pat Buchanan in a couple of previous cycles, exciting a strong following among her admirers but unable to be taken seriously as a major-party nominee.

Former Arkansas Gov. (and current Fox News Channel star) Mike Huckabee is the current favorite of social conservatives (and wins in current straw polls of Repub activists). But, Hofrenning believes, his economic populist streak comes across as anti-Wall Street and makes it unlikely that the party's pro-business wing will ever really trust him. Also, as much as the social conservatives warm to Huckabee's evangelist style, he thinks others in the party will be leery of going before the general electorate with a former Baptist minister on the ticket (no clergyman has ever been a major party nominee, Hofrenning said).

Former Mass. Gov. Mitt Romney (whom I personally consider the front-runner for the nomination) is a master of CEO-speak and the darling of pro-business Republicans. But Hofrenning believes that social conservatives will never fully trust a candidate who, in his Massachusetts days, flirted with pro-choice and pro-gay-rights positions. Hofrenning also thinks that, considering the centrality of anti-Obama-health-care-ideas to current Repub thinking, it will be difficult for Romney to live down the current Massachusetts experiment in universal coverage (which has many similarities to Obamacare) that he signed into law.

Conceding that Pawlenty starts off with the least experience in presidential politics, the lowest name recognition, and the smallest national base of contributors of this field (that's a lot of problems to toss aside with a dependent clause), Hofrenning nonetheless believes that he will prevail in the nomination fight because he doesn't excite deep suspicion from any of the key GOP factions. He has solid social conservative credentials (perhaps some wobbling on stem cells), is an evangelical protestant but not a preacher, has focused recently on his anti-tax personna, speaks the deficit-hawk language convincingly and looks good and sounds good on the stump, although find him less than charismatic. (I, too, think that Pawlenty makes a very good impression, coming across as humorous, humble, folksy, fluent on policy details, sure-footed, unflappable under hostile questioning.)

The national punditocracy seems to have started out thinking that Pawlenty's place in the race was to be the moderate alternative. Minnesotans, certainly liberal Minnesotans, harbor no impression that Pawlenty is a moderate. Nor do I know anyone who seriously believes that the Republican base is searching for a moderate. But there's something about Pawlenty's style that, Hofrenning said, "allows him to come across to moderates as a moderate and to conservatives as a conservative." If true, especially in the age of litmus-test politics, that's quite a skill, and I have to say I sort of get what Hofrenning is saying.

I'll just mention a couple of barriers to Pawlenty that I discussed with Hofrenning. If, in the early primaries and caucuses, Republicans are divided between social conservatives whose first choice is Hucakbee and economic conservatives whose first choice is Romney, Pawlenty is liable to finish a distant third or fourth for a while before Hofrenning's analysis -- that Romney and Huckabee reach a stalemate and the party needs someone acceptable to both factions. Candidates who finish a distant third or fourth in Iowa and New Hampshire are usually gone before their subtle merits are discovered. I'm skeptical of the idea that Pawlenty has a big advantage in Iowa because he comes from a neighboring state. If anything, it will raise expectations and make a third- or fourth-place finish look worse.

Lastly, please note that political handicapping of a race three years in advance is very, very likely to be wrong, unless it turns out to be right. When Hofrenning made his bold prediction on Almanac, host Cathy Wurzer warned him that it was now on tape and would be dusted off when it turns out to be right or wrong.

It lasted barely an hour and was fairly uneventful, if you had already read the briefs.

Ramsey County Chief Judge Kathleen Gearin announced right away that she wouldn't be ruling today on the request for a temporary restraining order. She indicated that in cases like this, involving constitutional and balance of power issues, judges need to tread lightly. And she acknowledged that whatever she decides about the underlying unallotment question will just be a way station on the road to the Minnesota Supreme Court. True enough.

Plaintiffs' attorney Galen Robinson reiterated the chief statutory and constitutional claims, which I described in my post earlier this morning. He made one argument I hadn't heard before. Minnesota gives the governor a line item veto, but he has to veto an entire appropriation. The money for the special health-related diet subsidies that the plaintiffs have been receiving could not be reached through the line-item veto because that program does not have its own separate appropriation. In some states, there is an "item reduction veto" that allows the governor to zero out a smaller item within an appropriation. But the Minnesota Constitution does not give that power to the governor. In fact (historical trivia alert) in 1915 Minnesota had a constitutional amendment on the ballot that would have given the governor that power, but it failed.

When Gov. Pawlenty zeroed out the diet subsidy, he effectively committed an item reduction veto, only it was even a greater enhancement of his power because he did it in a way that could not be overridden by the Legislature. The unallotment power of Minnesota governors was created in 1939 by statute, not by constitutional amendment. If, as used by Pawlenty this year, unallotment is equal to "item reduction veto," the Legislature cannot have given such an extra-constitutional power by mere statute.

Speaking for the governor, his legal counsel Patrick Robben also reiterated the main arguments made in the defense brief (see my post of this a.m.) He added that the state's revenue picture continues to decline and warned that "we may be unalloting yet again" during the current biennium. He may not have said so explicitly, but the implication clearly was that any money that the courts force the state to spend as a result of this action will just have to be taken out of some other part of the budget.

He also warned Gearin that if she grants the temporary restraining order that the plaintiffs are seeking -- forcing the state to reinstate the special diet program -- recipients of other benefit programs that have been unallotted will be right behind the current plaintiffs, asking that their lost benefits be reinstated and "the end result is that your honor is going to be running the state budget out of this courtroom." (I saw Gearin make a note of that argument.)

Robben also said out loud an argument that is usually unspoken: DFLers believe that Gov. Pawlenty should have signed the revenue bill they passed, which would have made the unallotments unnecessary. That is a public policy disagreement between the parties and between the branches, but there is no question that the veto was within the governor's power and "this courtroom is not the place to take up those kinds of public policy issues."

Solicitor General Alan Gilbert, also representing the defense, spoke briefly and made no new arguments that I could hear. he reiterated that the only question for the court whether Pawlenty complied with the unallotment statute when he exercised that power. Gilbert says he did, and the plaintiffs' case should be dismissed.

Gearin did not indicate when she would rule on the restraining order or the underlying issues.

Indubitably, Minnesota law provides the governor with the power — highly unusual among the states — to decline to spend funds that have been properly appropriated (in bills passed by the Legislature and signed by the governor himself) if that rescission is necessary to prevent the state from going into deficit. (The Minnesota Constitution prohibits deficit spending.)

That is the “unallotment” power that all the arguing is about. And that argument gets an important (but certainly not final) airing today in Ramsey County District Court.

The governor’s unallotment power has been used before, has been challenged in court before, and has been upheld as valid and constitutional. But it has never been used under the circumstances that Pawlenty used it at the end of the 2009 legislative session.

The statute establishing the unallotment power says it is for situations in which “the commissioner [of management and budget] determines that probable receipts for any other fund, appropriation, or item will be less than anticipated.”

The previous unallotments occurred when the Legislature was out of session and revenue came in below projections.

This year, before the legislative session was over, Pawlenty announced that he would veto any tax increases and would not call a special session to work out a compromise with the Legislature.  Instead, he declared, he would balance the budget himself by selective use of the line-item veto and unallotment.

On May 18, the last day of the legislative session, the Legislature passed a bill that would have raised enough new revenue to pay for the spending it had approved (at least based on then-current projections). The governor signed the spending bills but vetoed the revenue bill. He then used his line-item veto power to reduce some of the spending, and when he reached the limits of that power, he used unallotment to eliminate other categories of spending that were beyond the reach of his line-item veto.

Two arguments: Statutory and constitutional

DFLers argue that this is not a case of “unanticipated” shortfalls, but a case where the shortfall was known while the Legislature was in session. The statutory challenge to what Pawlenty did is that the guv used the power in a situation not intended when the unallotment power was enacted.

The constitutional argument is that Pawlenty’s action alters the balance of powers between the executive and legislative branches. If he gets away with this, the constitutional portion of the argument goes, he will have greatly increased the governor’s power over state spending and state priorities, at the expense of the Legislature's power.

The current court case

The subject of today’s hearing is a suit filed by six very poor Minnesotans against Pawlenty and three of his commissioners.

The six plaintiffs have been receiving a monthly check from the state to help them afford a special diet that is necessary for their health. The program that paid that subsidy has been completely unallotted. The unallotment just took effect, on Nov. 1. On behalf of themselves and “all others similarly situated” — which I take to mean all recipients of the special dietary subsidies, but which logically could also mean anyone who has lost a state benefit under the unallotment — the plaintiffs are asking Ramsey Chief Judge Kathleen Gearin to issue a temporary restraining order on the unallotment so that the plaintiffs will continue to get their subsidy until the case is decided.

I’ve read the pre-trial briefs of the two sides and this goal of this post is to preview the arguments. One thing that comes across in both briefs is that one of the key criteria a judge must consider in deciding for or against a temporary restraining order is which of the sides seems likely to prevail when the underlying question is finally decided.

In other words, without hearing the full argument on whether Pawlenty’s current unallotment was legal, Gearin is supposed to think about which side might win in the end. Gearin, a former high school social studies teacher and a former prosecutor, is now serving her fourth six-year term. Although she has no overt partisan associations, conservatives suspect her of being a liberal.

The issue of a restraining order is a short-term matter, but it will be interesting to see what she says, when she rules on that question, about which side is likely to prevail on the underlying issue.

The plaintiffs' brief

The plaintiffs qualify for the special aid they’ve been receiving because they are low-income, disabled and because their doctors have prescribed special diets for them to maintain their health.

At the risk of wearing you out, here’s how the plaintiffs’ brief describes the first of the named defendants:

“Deanna Brayton suffers from a variety of health problems. She has been diagnosed with an autoimmune disorder, rheumatoid arthritis, degenerative disc disease, osteoporosis, high cholesterol, elevated blood sugar, underactive thyroid, irritable bowel syndrome, traumatic brain injury, irregular heartbeat, anxiety, migraine headaches and visual disturbances. She suffers from frequent blood clots, kidney stones and multiple ill-defined leg fractures. As a result, Ms. Brayton is unable to work...

“Multiple health impairments force Ms. Brayton to carefully monitor her health. Not only does she take numerous medications, but she must also follow a strict diet. Ms. Brayton’s doctor requires that Ms. Brayton follow both a lactose-free diet and a gluten-free diet. She must also eat between 40 and 60 grams of protein each day. And she must follow an anti-dumping diet. If Ms. Brayton violates any one of these dietary restrictions, she becomes ill.”

According to the brief, Brayton has been receiving benefits from several federal, state and local programs, totaling $1,089 a month, of which $334.40 was represented by the dietary aid. Her monthly expenses were $1,221. Before she lost that benefit, the brief says, she was able to get by by leaving one bill unpaid each month then catching up the next month and leaving another one unpaid. (I can’t see how this can work out in the long run.)

But without the $334 a month that she will lose because of unallotment, “Ms. Brayton does not know how she will be able to buy the foods she needs to maintain her diet with this significant reduction in her income. She is afraid that if she is unable to follow her diet, she will end up in the hospital.”

I’ll spare you the tales of the other five plaintiffs, but take my word for it, according to the brief, they are very similar. The lawsuit says the effect of the lost dietary aid would be “devastating and places [the plaintiffs] on the precipice of disaster.”

This is a very sad story on a human basis. On a legal basis, the plaintiffs attorney, Galen Robinson of Mid-Minnesota Legal Assistance, makes the two arguments I summarized above.

1.The statutory intent argument: The unallotment power exists for an unforeseen shortfall in the middle of a biennium, not for a governor to impose his own preferred tradeoffs between taxes, spending and cuts before the biennium has begun, when the Legislature is in session and the shortfall is already projected.

2.The constitutional balance of power argument: Taxes to raise revenues and the appropriations to spend those revenues are constitutionally entrusted to the Legislature. One check on this power is the power of the governor to veto bills or even line items. But the check on that power is for the Legislature to override those vetoes. Pawlenty has asserted an unprecedented and balance-of-power-altering authority over taxes and spending that leaves the Legislature as a bystander. As summarized in the plaintiffs’ brief: “The Governor simply may not arrogate to himself the power to rewrite appropriations.”

The defense brief

Arguing on behalf of the governor and his commissioners, Solicitor General Alan Gilbert presented several strong counterarguments. Here, based on the defense brief, is an overview some of those facts and arguments:

1. The unallotment statute simply does not say that the governor cannot use the power at the beginning of a biennium, nor that the Legislature and the governor have to agree to a balanced budget at the beginning of a biennium.

2. Trying to infer the mystical intent of the authors of the unallotment statute is not permissible, Solicitor General Gilbert argues. The court must construe the law from the words in the law. As the brief states it: “The plain language of the statute controls and ‘shall not be disregarded under the pretext of pursuing the spirit [of the statute.]'”

That last portion is a quote from Minnesota Statute 645.16.  But it did not quote the full sentence from the law, which reads: “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.”

Presumably it will be for the courts to decide whether the words of the unallotment law are clear and free from all ambiguity, specifically as to the question of what it means for a revenue shortfall to be “unforeseen.”

3. The system that is implied by the plaintiffs’ argument would lead to a government shutdown. If there is a gap between state’s projected income and its appropriated expenditures at the beginning of a biennium, and if the governor can’t unallot, the brief argues, then “spending would continue until the State simply ran out of money before the biennium ended, resulting potentially in a government shutdown, at least as to non-core functions."

4. The unallotment statute is not an unconstitutional alteration of the balance of powers between the branches. It was enacted by the Legislature itself. It has been challenged and upheld by the courts previously. (This argument seems to assume away, or perhaps ignore, some of the principle arguments of the other side: that the previous court rulings occurred when unallotment was used at the proper time and in the proper way; and that use by Pawlenty is not what the Legislature intended.)

5. If they believed that the need for Special Diet aid was reason enough to raise taxes, counties or local governments could have decided to step in and raise taxes, cut other programs or pursue other potential funding sources so they could provide the aid to their residents. The governor announced the unallotment in July. In September, the Department of Human Services sent a specific bulletin to all counties alerting them to the unallotment, effective Nov. 1, and informing them that they had the option of continuing the aid at their own expense.

6. The governor could not have used his line item veto power to eliminate the Special Diet program, because that program is not the subject of a separate appropriation. Rather, the funding for MSA-SD (Minnesota Supplemental Aid- Special Diet)  it is a small portion of the larger appropriation for Minnesota Supplement Aid in general, which covers many other forms of aid, some of which were not unalloted.  The line item veto can only be used to strike whole appropriations.

Ultimately, the defense went straight into the plaintiffs’ face, asserting that since the governor is going to win the case in the end, Judge Gearin has no basis on which to issue the temporary restraining order. And the argument that they are going to win in the end is stated simply: Pawlenty is going to in the end because “Defendants have complied with applicable law."

The word “unallotment,” by the way, is not really a word (and my spellchecker is about to meltdown from having to point that out so many times in the writing of this post). “Unallotment" doesn’t even occur in Minn. Statute 16A.152.subd 4.c., which creates the power. (This also gives me the opportunity to close with the actual legislative language, in case you you want to decide for yourself what it means. The subsection says:

“If the commissioner [of management and budget] determines that probable receipts for any other fund, appropriation, or item will be less than anticipated, and that the amount available for the remainder of the term of the appropriation or for any allotment period will be less than needed, the commissioner shall notify the agency concerned and then reduce the amount allotted or to be allotted so as to prevent a deficit.”

What think?

A lawsuit challenging Gov. Tim Pawlenty's use of his unallotment powers is heading to an important court hearing Monday morning and there are at least two interesting developments in advance.

• Attorney General Lori Swanson's office will be handling the case in defense of Pawlenty's unallotment powers.
• The Minnesota House is moving toward joining the case (and not on Pawlenty's side).

Quick background

Minnesota law gives the governor the power to "unallot" funds that have been appropriated when that is necessary to deal with unexpected shortfalls in government revenue. The power has been used occasionally in the past and has withstood court challenges. At the end of the 2009 session, Pawlenty did use those powers to balance the budget without raising taxes.

The first challenge to this action is a lawsuit on behalf of six very poor, sick Minnesotans who have special dietary needs for health reasons and who have received state-paid benefits to afford the food necessary to meet those needs under the Minnesota Supplement Aid-Special Diet (MSA-SD) program. That program was eliminated for the current biennium under the unallotment. The six are suing, I believe on behalf of all recipients of MSA-SD, to challenge that cutoff and they are seeking a temporary restraining order to prevent the state from cutting off their benefits until the issue can be fully litigated. On Monday, the first court arguments will occur, in Ramsey County District Court, on the issue of whether the temporary restraining should be granted.

There has long been speculation in legal circles about whether Attorney General Swanson would handle the case for the governor's side. Normally, the AG defends state laws against challenges, and normally the AG serves as the governor's lawyer.

This case is awkward on both partisan political and on separation of powers arguments. Swanson is a DFLer and the DFL Party and its elected legislators in general are virtually united in opposition to what Pawlenty has done with unallotment. And, as I mentioned above, the Legislature is preparing to get involved in the case. The AG is the lawyer for the state government, and this case may soon be one in which the executive and legislative branches of that government are on opposite sides. Does Swanson have any option other than to handle Pawlenty's side of the case?

Awkward case

I asked that question of federal Judge John Tunheim because he spent many years as Deputy AG under Skip Humphrey, including during a period when Republican Arne Carlson was governor.

Tunheim said that there were a few cases in which the elements of partisan politics were near the core, making it awkward for the Republican governor to be represented by the DFLer AG. In such cases, he would approach the governor to inquire if he would be comfortable being represented by someone else. In such cases, the AG's office would arrange for and pay for an outside lawyer.

"In most cases, most governors want the imprimatur of the attorney general representing him in something like this, and it is the attorney general's responsibility," Tunheim said. "It was our position that we were committed to representing governor in all cases, regardless of whether the attorney general had different views. But in highly charged cases with political and partisan elements, we would tell the governor that that we would be glad to stand aside and procure representation. We did represent Governor Carlson in some cases that, from the outside, looked political. But in some we didn’t."

According to the brief filed by the defense, all of the defendants (Pawlenty plus the commissioners of Human Services, Revenue and Management and Budget) are all represented by the AG's office (a team of three lawyers fromo the office, led by
Solicitor General alan Gilbert) and, in addition, the general counsel of the governor's office, Patrick Robben, is on the legal team to specifically represent defendant Pawlenty).

The unallotment case is doubly awkward because of the obvious difference on the issue between the governor and the majority party in the Legislature and because arguments over the proper division of power between the two branches is near the heart of the case.

That awkwardness will increase if the House Rules Committee votes Monday to join the case, on an amicus basis, on the plaintiff's side. State Rep. Ryan Winkler, who has taken the lead on this matter in the rules committee, said he was confident that the resolution would pass. He didn't know whether the Senate was going to join the case.

UPDATE: The earlier version of this post indicated that I had solicited comment from the AG's office on the decision to take the case. Swanson's spokester Ben Wogsland replied by pointing out that twice before, when the governor's unallotment powers have been challenged in court, the attorney general has represented the governor On both occasions, the governor was a Republican and the AG was a DFLer. (The first challenge occurred in 1981, when Republican Al Quie was governor and DFLer Warren Spannaus was AG. The second was in 2004 when Pawlenty was guv and DFLer Mike Hatch was AG. In the latter case, the lead plaintiff was DFL legislator Tom Rukavina. )

Wogsland said that in the current case the governor did not "request" private counsel. He didn't say whether there had been any discussion between Swanson and Pawlenty over the matter. But he did write that: "State law provides that the Attorney General is the lawyer for the Governor, his Commissioners, and his Administration, regardless of politics."

I find it nearly impossible to keep my head straight about the health care bill(s). By the time it (if it ever) reaches a final vote, I know it will continue dozens of provisions that I find seriously objectionable, mostly in the category of giveaways to the big interests in order to buy down their opposition.

When all is said and done, the U.S. will still have, by far, the most expensive health care system in the world and far from the best outcomes. It bothers me a lot that no one even dares to suggest that if we are paying the most of any nation for health care we ought to rank somewhere among the healthiest nations.

White House Chief of Staff Rahm Emmanuel never tires of reminding the idealists that this isn't about finding the best possible health care bill, it's about finding the best bill that can pass. It's an unpleasant reality bite, but reality will bite nonetheless.

I accept, not as a proven fact but as a likely one, that if nothing passes on this round, we will be looking at several more years of the status quo system with continuing steady increases in overall costs and numbers of uninsured Americans. So, if I was a member of Congress I would vote every amendment that I believed would make the bill better, knowing my side will lose many or most of those votes, and in the end try to judge whether the overall bill represents an improvement from the status quo, and it if the answer is yes, vote for it.

Among the problems with thinking clearly about the bill is trying to decide what are the most basic issues. David Leonhardt, NY Times economics columnist, took a shot at it yesterday and, without getting too deep into the weeds, did a fine job, methinks. Here's his stab.