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.
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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