THE CLEAN WATER, LAND AND LEGACY AMENDMENT

Lobbyist Brian Rice had a pounding migraine. State Sen. Bob Lessard was royally ticked off.

Minnesota's state Constitution was about to be fiddled with … again.

This was eight years ago, long before the hunters and anglers, the environmentalists and the artists — all with their own needs — group-hugged and ended up giving voters a complex decision to make on Tuesday:

• Vote "yes" to raise the state sales tax by three-eighths of 1 percent to underwrite programs for the outdoors, clean water, parks and the arts for the next 25 years.

• Or vote "no," because using the Minnesota Constitution for such funding could push this state to an abyss of initiative and referendum, and because, all things considered, taxes are high enough.

A coalition forms
The strange-bedfellows politics of "The Clean Water, Land and Legacy Amendment," can be traced to Rice's headache and Lessard's frustration in 2000.

Its deepest origins, two years earlier, are rooted in Lessard's first constitutional victory.

In 1998, the animated and plain-spoken lawmaker from International Falls led the charge that won overwhelming approval by state voters to include an amendment in Article XIII of the state Constitution. It declared hunting and fishing "a valued part of our heritage that shall be forever preserved for the people and shall be managed by law and regulation for the public good."

It was designed to fend off what Lessard and others saw as a growing anti-hunting constituency in the state … you know, the PETA-types.

It may have been harmless enough, a sort of gun-toting-ice-fishing macho manifesto. But, under the surface, some liberal lawmakers came to believe the amendment drove a voter turnout that aided independent Jesse Ventura in winning the gubernatorial election and caused the DFL to lose control of the House of Representatives.

The turnout among the so-called "hooks and bullets" crowd was high because of Lessard's amendment. It mixed with the other "angry white male" demographic that voted for Ventura to push the former wrestler into the Capitol's corner office.

The hunting-fishing amendment garnered 75 percent approval.

Two years later in 2000, Lessard was pitching a related amendment to the Minnesota Constitution: take one-eighth percent of existing state sales-tax proceeds and dedicate them to support habitat for the hunters and anglers whose rights were now imbedded in the Constitution.

There was a late-night hearing on his bill. Lobbyist Rice, a longtime advocate for parks in the metro area representing the Minneapolis Park & Recreation Board, was there attempting to monitor the session.

But he was battling his pulverizing headache. A friend of Lessard, Rice escaped to the senator's long, leather office couch in the north wing of the Capitol to lie down and wait for the aspirin to kick in.

Soon, Lessard broke the dark silence, storming into his office after another defeat in committee of efforts to dedicate the tax slice to the outdoors gang. That committee was balanced between Greater Minnesota conservatives and Twin Cities-area liberals.

"Lessard comes in cussing and swearing," Rice remembers.

"$%&-ing, $*#-ing liberals!" Lessard ranted. "… damn it, I can't get my $%#-ing bill out of this $#*#-ing committee."

"Well, Bob," Rice said, his head pounding, but his lobbyist ingenuity kicking in, "I can get this bill out of committee."

"What? What do you mean?" Lessard barked.

"Bob, you got nothing in here for the metro liberals," Rice said.

Lessard had modeled his outdoors amendment after a similar law passed in Missouri in 1976. But Rice told Lessard that another amendment passed soon after in the Show Me State; it was one to fund parks and soil and water conservation.

"So, I'm on the couch and I say, 'Lessard, I'll tell you what, if you put us in the bill, we'll get this thing going."

Parks, zoos and trails were added to a bill to use the state sales tax. A path was paved that leads to today. Strangers were about to spoon together on the lumpy mattress of politics. Pragmatism trumped cultural and political differences.

Soon, environmentalists, who had been seeking more funding for their causes, joined forces with the likes of Ducks Unlimited. Upon Lessard's retirement from the Senate, DFLer Dallas Sams of Staples led the charge, with clean-water funding added to the evolving package.

"That energized the bill," said Rice. And the potential new tax hiked up to 5/16ths of a percent, with the outdoors, clean water and parks sharing the potential pot of cash.

Still, DFLers were among its harshest critics. Dedicated taxes, they said, are no good. They tie the hands of lawmakers when global funding decisions are made; a tax that's dedicated can't be undone and its funds can't be moved around for immediate needs in times of financial stress … like right now.

And the no-new-taxes constituency on the Republican side was growing.

Enter Gov. Tim Pawlenty in 2002. No increased sales tax was going to get past his desk, and certainly not as the state faced a massive deficit.

New allies
The outdoors/environmental amendment languished until later, in 2004, when in a stroke of genius, arts and cultural groups, led by longtime arts lobbyist Larry Redmond, hitched their wagon to the journey. For years, under Ventura and Pawlenty, the State Arts Board's budget had gotten whacked big time.

Before long, the guys with the earflapped orange-hats and the guys and gals with berets were fam-i-lee.

After all, the argument went and goes, the outdoors, the sky blue waters and theater, galleries and music are core statewide values, elements of Minnesota's "brand." From a sales pitch point of view, they all contribute to the state's massive tourism industry.

The arts piece tipped powerful Minneapolis Sen. Larry Pogemiller, who chaired the tax committee, and finance committee chair Sen. Dick Cohen, a huge arts supporter.

"We needed some accelerant," Rice said. "The arts added enough flavor to it, so this amendment would not be perceived as being all hunting and fishing … The parks made it palatable to some metro legislators. The water issue addressed some long-term needs. The arts were saying, 'If this is about Minnesota, this has got to be comprehensive.' "

The sportsmen initially saw adding the arts as an attempt to kill their years-long effort. They thought it would further muddy the Minnesota political waters.

Au contraire. What was created was the perfect storm to get the amendment — finally last session — on the ballot and then help fund a constitutional amendment campaign.

As Joe Duggan, vice president of Pheasants Forever, said: "As time went by, the nature of this process became one of compromise and coalition building. It became advantageous to have more coalition members."

Who-da thunk that the Deer Hunters Association, the James Sewell Ballet and Women in the Wilderness would be members of the same coalition?

"You play with the hand you're dealt," said Lessard, who has watched his initial bill morph into all this.

As someone said the other day at a news conference of amendment supporters, if any political candidate could muster such a coalition, he or she would be a shoo-in for statewide office.

The support effort has raised about $ 3.6 million so far, said Vote Yes for Minnesota campaign director Ken Martin. According to reports at the Campaign Finance Board, the largest contributor through August was Minneapolis philanthropist Alida Rockefeller Messinger; she donated $1 million.

At its most recent available filing, No Constitutional Tax Increase, which is chaired by former U.S. Sen. Rod Grams, had raised about $3,000, all from the Taxpayers League of Minnesota.

The Constitution
Critics have called it "a Christmas tree" amendment with disparate ornaments mixed and matched simply to garner votes … as if that's not the way things work in the halls of politicking.

Critics argue that taking such a specific constitutionally mandated funding initiative undercuts the pillars of representative democracy.

Indeed, an exact sales tax percentage — the three-eighths of 1 percent, in this case — has never been included in the Constitution. Such specificity appropriating statewide funds in the guiding document is a departure.

"Obviously, everyone supports clean water," said Phil Krinkie, president of the Taxpayers League of Minnesota and among the amendment's harshest bashers. At a time of declining incomes and mounting debt, higher taxes aren't the answer, the former state representative from Shoreview said.

But it's the decision-making method and dedication of the added sales tax that gets anti-tax advocates and some public-policy wonks' blood boiling.

Editorialists at the Star Tribune, Pioneer Press, St. Cloud Times and Rochester Post- Bulletin have told their readers to vote "No."

Said the Post-Bulletin: "When we start legislating through the Constitution, we start down a very slippery slope."

It echoes the sentiments of the Civic Caucus, a policy group, which recently wrote at MinnPost, that the amendment "represents an abdication of legislative responsibility; it dangerously reduces budgetary flexibility; it enhances influence of special interests; it sets a bad precedent; it can't guarantee what its advocates seek, and its combination of outdoors, water, and the arts is little more than logrolling."

The fact is, though, that state constitutions nationwide aren't nearly as sacred as the U.S. Constitution. They are more detailed and more amended, by far, than the national document. State constitutions nationwide often wander into areas that seem like legislation.

"It's not unusual to see state constitutions amended for all sorts of reasons," said Professor Mike Steenson of William Mitchell College of Law, an expert on Minnesota's Constitution. "There are a greater number of issues that have to be dealt with at the local level by states, and there is, I would suppose, a populist notion to it. Ultimately, what it does is take the heat off the Legislature and bring it straight to the people."

State Constitution amended early and often
History shows that amending the Constitution is as Minnesotan as nabbing a walleye, shooting a duck or sipping white wine at the Guthrie. Since 1858, this will be the 213th time the Legislature has placed a constitutional amendment on the ballot, with 119 of them getting voters' approval.

The amendment votes have ranged from authorizing "Negroes" to vote — which was rejected by voters in 1865 and 1867 before passing in 1868 — to establish a state rural credit system to aid agricultural development, passed in 1922. Voters in 1928 decided to dedicate a "motor fuel tax" to highway and bridge funding and, in 1990, to dedicate 40 percent of lottery proceeds to an environmental trust fund. (That fund, which used to be raided by the Legislature for other causes, has never generated enough funding, say environmental groups.)

Noteworthy: In 1916, 1918 and 1980, efforts to create a system of initiative and referendum were defeated. It is argued by some that this year's effort is an attempt to circumvent the will of the people in those three cases.

"Look, there's probably a lot of worthwhile projects that this new money can be used for," said Chris Radatz, public policy director of the Minnesota Farm Bureau Federation, whose members have come out against the amendment. "But let's go through the legislative process every two years. Let projects rise and fall on their merits. The Legislature has to have the flexibility to respond when crises arise."

Like the Taxpayers League and Krinkie, Radatz and his organization have supported referenda, or "letting the people speak," on other matters, be they stadium questions or gas tax matters. But, generally, those votes get pushed off to the county commissioners or local voters who are affected, not to a statewide electorate whose approval can't be reversed … except for another constitutional amendment.

Said Radatz: "Agricultural programs that we feel are important, we have to make our case at the Legislature every two years."

But Paul Austin, executive director of Conservation Minnesota, said the time for banging his head against the committee room wall is over. He and particularly the outdoors lovers seeking to protect habitat have been at this for more than a decade.

"When the state Legislature is sitting down every two years, these problems — take water quality — are important problems, but not always the most immediate," Austin said, comparing environmental issues to education, social services or health care. "People put them off for one year, for two years and, pretty soon, it's many years later. You're investing in resources that are going to pay off in the long term."

Right now, the stage budget sets aside less than 2 percent of taxpayer dollars for conservation and water quality issues.

Austin noted that he was 6 years old in 1972, when Congress passed the Clean Water Act. That law said that within 10 years every state needed to test and clean up its water.

"It's 36 years later now," Austin said, "and we've missed an entire generation and we still have tested only 15 percent of our water. … Soon, I've got grandkids and they'll have to deal with this if we don't."

Under the amendment, the clean water slice of the tax will generate about $75 million a year, enough, Austin said, to test the other lakes and begin to clean them up; 40 percent of those tested are polluted.

What you'll be voting for or against is a tax increase, to be sure. But from the Vote Yes ads, you'd never know it. The word "tax" isn't uttered in its commercials. In the most recent TV spot, there is acknowledgement that passage of the amendment will cost the average family "less than $5 per month." But the "T" word isn't uttered.

"People know there's a sales tax," said Ken Martin, who is leading the Vote Yes campaign. "We're not purposely trying to deceive anybody. People know."

Of course, the Taxpayers League and the No Sales Tax Increase. group, fronted by former U.S. Sen. Rod Grams, emphasize the tax over the content of the amendment.

In his ad, Grams talks about an $11 billion tax increase. Over the 25-year-life of the increase, that's what's projected to be raised.

But on its Web site, the Taxpayers League and Grams' Vote No group add this: "If you're sick of paying more and more taxes, join us in telling the liberal tax-and-spenders 'enough is enough!' "

When the Legislature passed the law to allow the amendment, the House approved it 85-46 and the Senate 46-17, in a very bipartisan vote.

How the amendment would work
If this amendment passes, for everything you purchase that is covered by the state sales tax, an additional three-eighths of a cent will be added at the cash register. It will bump up the current statewide 6.5 percent sales tax to 6.875.

On a $100 purchase, your tax will increase 38 cents.

That additional tax — which would generate about $273 million by 2011 — will be siphoned from the state's general fund and deposited into dedicated pots of cash for the causes imbedded in the amendment: 33 percent to outdoors habitat and issues ($90 million), 33 percent to clean water remediation ($90 million), 14 percent to parks and trails ($39 million) and 20 percent to the arts statewide ($54 million). This would be the sales tax gift that keeps on giving for 25 years.

In the end, the Legislature gets back into the picture, too.

"Citizens councils," composed of experts and average Janes and Joes will be appointed by the governor and the Legislature. In the case of the arts, the State Arts Board already has committees statewide to evaluate grant proposals. That mechanism is expected to stay in place.

Once the new dollars are collected, the councils/committees will make recommendations to legislators. All grants and spending allocations will be approved by the Legislature.

Voter 'drop-off' factor in election
Amid the campaigns of Obama and McCain, Coleman and Franken, "Our biggest problem has been awareness," said Martin, a political pro, who ran John Kerry's Minnesota presidential campaign in 2004.

So, phone banks have been in place. Fly-arounds have been undertaken. Van tours across the state were conducted.

The key for any amendment is this: It's not a game of getting the majority of the votes. Rather, it's a game of getting a majority of the voters.

If someone votes for president or Senate or dog catcher Tuesday but doesn't vote on the amendment, that's considered a "No" vote.

Some Vote Yes proponents are concerned that with an expected crush of new and energetic voters, many will whiz into the polling place, get their ballot, fill in the space for Obama or McCain and then rush out.

If there's a significant "drop-off" rate — and generally it's in the 6 to 10 percent range — that could hurt the "Yes" advocates big-time.

Martin, in an interview, suggested that Tuesday's vote is as much a referendum on voters' willingness to increase taxes as it is a plebiscite on the outdoors, clean water or the arts.

"This is, in many ways, a proxy on the tax debate in this state," Martin said. "If this loses, you can be sure that the anti-tax crowd — and notice I didn't say Republicans — but the anti-tax crowd will be able to own the tax debate for the next generation.

That is, should this lose, then the Krinkies of the world can say: "A-ha, even when it comes to easy issues like the environment and culture, this state is opposed to increasing taxes."

Krinkie said, should the amendment be defeated, he won't declare it an overarching victory for no-tax sentiment, but a vote on this particular issue.

Others say this is a referendum on preserving the "old Minnesota," when the outdoors trumped the urban core and suburban sprawl, when life was simpler and safer and more idyllic. This is a vote to retain the Minnesota we knew before freeways dominated, when almost everyone's name was Olson and when Tyrone Guthrie roamed our streets.

But for Bob Lessard, now 77, the vote is still about what he wanted a decade ago: honoring the outdoors, protecting the places where hunters and anglers recreate, keeping Minnesota clean.

"Look, I'm not an initiative-and-referendum guy either," said Lessard, who bolted the DFL late in his career because it was too liberal. "But I tried every other method outside of a constitutional amendment I could. Even when we had a surplus, I couldn't get this funded. … It won't get funded by the Legislature. I know it. I've been there."

What if voters say, "No," come Tuesday — for all sorts of reasons. What then?

"We'll never have another opportunity again,'' Lessard, the creator of all this, said. "For me, it's now or never."

Jay Weiner writes about off-the-field sports issues, such as sports business and sports and public policy, and other issues. He can be reached at jweiner [at] minnpost [dot] com.