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Session ends badly — again. Here’s one way to fix that.

MinnPost photo by Peter Callaghan
We could amend the Minnesota Constitution so as to encourage more responsible behavior even from flawed human beings.

Minnesota’s legislative session ended poorly — again. In this moment of frustration, one naturally thinks of electing people who will behave more responsibly. But the American tradition offers an alternative: We could amend the Minnesota Constitution so as to encourage more responsible behavior even from flawed human beings. If we don’t like the way the game is being played, perhaps we should change the rules of the game.

Max Hailperin

Two frustrating aspects of the current situation are intimately linked. One is that the omnibus bills that Gov. Mark Dayton vetoed include provisions with broad, bipartisan support that would easily have become law had they been in stand-alone bills. For example, no one objects to using available federal funds to improve election security. The other frustrating point is that the governor could not send the vetoed omnibus bills back to the Legislature with his objections. The Legislature had no chance to override his vetoes, nor to narrow their focus in search of consensus. It had already adjourned.

The Legislature decides what is in a bill. For most of the session, legislators also get the last word on whether the bill is enacted into law: They can override a veto. But in the last three days of the session, the rules change. Legislators still decide  what’s in the bill, but they don’t have to present it to the governor until after they adjourn. At that point, the governor necessarily has the last word: either sign the bill into law or not. This combination is what encourages irresponsible brinksmanship. The Legislature reduces the infinite range of possible ways forward to a single yes-or-no question, then leaves the governor to face that question alone.

Analyzing the calculations

This allocation of end-of-session responsibilities explains why broadly popular provisions get tied up in controversial omnibus bills. If the Legislature and governor were negotiating a compromise as equals it would be entirely rational for them to bundle together some proposals the Legislature favors and the governor opposes with some proposals the Legislature opposes and the governor favors. But it would be irrational for them to throw in any measures that both favor. Those they would enact as stand-alone bills. Since both sides favor those provisions, they would want to maximize the speed and sureness with which they were enacted, rather than holding them up in a risky negotiation. And since such a mutually favored provision isn’t a concession for either side, it isn’t useful to include as a bargaining chip. But when the Legislature forces the governor to make the last move, the calculation changes. Even a mutually favored provision becomes a point of leverage.

The Constitution already contains one potentially helpful provision, which is the rule limiting each bill to a single subject. However, that rule has proven virtually impossible to police. So why not address the mechanics of the law-making process instead? If the Legislature is in the driver’s seat with regard to the contents of bills, then they ought not be able to force the governor to make the final move.

I suggest the following simple amendment. In the last three days of the session, the Legislature can only pass bills with a two-thirds majority in each house. Any bill passed in this way automatically becomes law without needing the governor’s signature.

Legislation could still be enacted in the usual way by a simple majority in each house and consent from the governor. This would just need to happen before the last three days so the governor has the opportunity to return vetoed bills. We could even lengthen the session by three days so that the time available for majoritarian lawmaking would remain unchanged. Some bills passed by simple majorities would no doubt be compromise omnibus bills, just like now.

Last three days would change dramatically

However, the final three days of the session would change dramatically. Instead of a being a time for lobbing parting shots at the governor, it would become a time of supreme legislative responsibility. The Legislature could choose to override earlier vetoes or could pass new laws that enjoy broad support. In particular, if any omnibus vetoes killed off obviously beneficial provisions, the Legislature could now re-pass those as stand-alone bills. Because those bills would be passed by two-thirds majorities, there’s no harm in leaving the governor out — such a majority could overcome a veto.

Representative democracy can work if the representatives act responsibly. And they are more likely to act responsibly if the ultimate responsibility to act is theirs.

Max Hailperin follows the Minnesota Legislature as part of his engagement with elections technology, which in 2014 brought him the National Association of Secretaries of State (NASS) Medallion Award.

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Comments (5)

  1. Submitted by Hiram Foster on 05/25/2018 - 10:50 am.

    Solutions

    The problems are easy; it’s the solutions that a hard.

    What the legislature could do is establish a rule that final action must be taken prior to the time limit for governor’s action. If the governor has ten days to review a bill and return it to the legislature for final action, if necessary. I know of no legal or constitutional reason why this couldn’t be done, but it simply isn’t. In practical terms, it is isn’t done because the legislature is a mess, something that’s hardly this governor or prior governors’ fault.

    I have other modest proposals. I suggest that no bill should accepted or amended prior to, oh let’s say, ten days before the end of the session. This would give the news media time to cover what’s happening, and the public time to respond it. The problem I am thinking of here is midnight amendments by tired legislators which are intended to slip unpopular measures into law, and which way too often result, in poorly drafted bills.

  2. Submitted by Jan Arnold on 05/25/2018 - 05:58 pm.

    Enforce One Item Per Bill and Submit Sooner

    There is no reason to wait until the last minute to submit bills for approval. The legislature was aware of the priorities and left them to the last minute. Why couldn’t the tax bill be done six weeks (or more) before the end of the session? Why are the bills loaded with junk and the kitchen sink at the end of the session?

    Why is the one item per bill not enforced? Send the loaded bills back and make them be one item. Don’t care how many there are, it would be much easier to handle and understand why approved or vetoed and time to make changes agreed to by both sides.

    The elected officials are suppose to be responsible adults. Responsible adults do their jobs on time and follow the rules.

    I agree with Hiram Foster (comment above) but think the priority bills should be submitted with more lead time than 10 days. The last week of the session can be devoted to what the state muffin/bird/etc type bills should be. Maybe a vote on the best pot luck hotdish or dish to share.

  3. Submitted by Alan Straka on 05/26/2018 - 12:20 pm.

    Enforce the one topic rule

    Allow any Minnesota citizen to sue to have any bill overturned if it contains more than one topic. If the courts decide the bill does not conform, everything in the bill is voided. Once the legislature realizes none of what they want will be enacted unless they play by the rules, they will pay attention to those rules.
    As for a veto after adjournment, the simple fix is to enact a rule that a veto taking place after the legislature has adjourned will trigger a special session strictly limited to either overriding or amending the bill in question. If the legislature cannot find a fix within a certain number of days, the bill is allowed to die and the session is finally adjourned. A veto of an amended bill will stand and no further action possible until the next scheduled session.

  4. Submitted by Kathleen Doran-Norton on 05/27/2018 - 02:31 pm.

    One issue one bill suits

    Who does have standing to sue over the one issue-one bill constitutional rule?

    • Submitted by Max Hailperin on 05/27/2018 - 06:03 pm.

      I am not a lawyer but …

      My understanding from what I’ve read is that if a bill is signed into law that contains a provision not germane to the topic of the bill, then anyone injured by that provision has standing to sue to have the provision in question removed. The test of germaneness the courts use gives the legislature quite a bit of leeway, presumably because courts are reluctant to substitute their judgement on fundamentally political questions. What they look for is that there is at least a “mere filament” connecting the challenged provision to the topic of the bill. In the Associated Builders case, the plaintiffs were harmed by the inclusion of a prevailing-wage requirement for school construction in a 1997 tax bill, so they had standing to sue and get that provision struck down. Likewise in a recent case, Rebecca Otto in her capacity as State Auditor was harmed by the ability of counties to switch their auditing over to CPA firms, so she had standing to sue claiming that the provision allowing that was contrary to the single subject rule. (However, the court decision was that the provision in question *did* have at least a mere filament of connection to state government operations, so it was permitted to be in the bill along with a ton of other stuff. So although Otto had standing to sue, she didn’t wind up achieving anything by doing so.)

      So far as I know, no one would have standing to sue over a bill the governor vetoed, as with the recent mega-omnibus. Arguably it violated the single subject rule, and arguably that did various people *indirect* harm by preventing other provisions from getting signed into law—they would have gotten what they wanted had the topics been packaged separately. However, that harm is not merely indirect but also conjectural—it requires comparison with a hypothetical situation of what bills might otherwise have been passed and signed into law. And so far as I know, courts are not willing to grant standing on the basis of that kind of conjecture. So as limited as the ability to enforce the single-subject rule is with regard to actually enacted laws, it is even more limited (non-existent) with regard to vetoed bills.

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