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House brief on unallotment: Pawlenty’s actions are a threat to democracy

If Minnesota’s unallotment statute means what Gov. Tim Pawlenty says it means, Minnesota is dangerously close to one-man rule, a brief [PDF] to the Supreme Court on behalf of the Minnesota House of Representatives argues.

The brief filed with the court today doesn’t say that in so many words, but it comes close. For example:

“Stripped to its essentials, [Gov. Pawlenty’s] current construction of the unallotment statute is that the Legislature delegated to the Executive the power to reduce appropriations the Legislature had just enacted and the Governor had signed.  This cannot be the case, as it would allow the Executive complete power — well beyond the item veto — to make or modify laws.”

The brief accuses Pawlenty of using unallotment in unprecedented and unintended ways that run roughshod over the traditional balance of power between the executive and legislative branches in order to impose his policy preferences on taxing and spending matters and in near-total disregard of the policies preferred by the majority of the Legislature.

This is the first of four briefs due today
Today was the deadline for the briefs responding to Pawlenty’s appeal to the Supreme Court to set aside a lower court ruling that Pawlenty exceeded his powers when he unalloted $2.5 billion dollars last July. The guv’s legal team has already briefed the issue along with two briefs from Pawlenty allies. Four briefs are expected today.

The chief plaintiff in the case is Mid-Minnesota Legal Services on behalf of the recipients of a program for poor, sick Minnesotans whose subsidy for dietary aid was unallotted. Their brief should surface later today, along with two other allied briefs.

But the first to become public is this one, written by David Lillehaug (DFL activist and a former U.S. attorney) and Lousene Hoppe of the Fredrikson & Byron Law Firm, technically on behalf of the Minnesota House of Representatives, but really on behalf of its DFL majority. Several Republican legislators sponsored an amicus brief on the other side of the case.

Because it is sponsored by the House, this brief may be especially relevant on issues of the proper balance of powers between the branches of the state government. The brief concentrates on those issues, and it is fueled by thinly concealed outrage.

The background
With apologies to those who already know the basics of the case, let me walk through the background and the events of the 2009 session and its aftermath — as presented in this brief:

It’s supposed to be the job of the Legislature to make the laws, including the budget, and the job of the governor to execute them. The governor’s power to veto bills and to line-item veto appropriations within bills gives him substantial leverage over the budget-making process. The budget must be balanced within the biennium (but, of course, no one can be sure precisely how much money the state tax code will bring in during the biennium).

The Legislature and the governor are supposed to agree on a balanced budget at the beginning of the biennium. In 1939, the Legislature enacted a law that authorized the governor, in a situation of unanticipated revenue shortfalls, to first use up the budget reserves and then, if the unanticipated shortfall creates a likelihood that the state will run out of money during the remainder of the biennium, to reduce the planned allotments within individual programs to prevent the state from running out of money and having to shut down.

According to this brief, the language in the statute (see subdivision 4) about revenues being “less than anticipated” means less than anticipated at the time the Legislature and the governor agreed on a balanced budget. And the phrase “the amount available for the remainder of the biennium will be less than needed” implies that this is a power that becomes available later in the biennium based on a revenue shortfall that becomes known later in the biennium.

(The governor’s brief argues that if that was what the 1939 Legislature meant, it could have said so. The court’s job is to apply the words in the statute, not try to imagine the intent behind them.)

The unallotment power was used four times before 2009 (two of those four were also by Pawlenty). In every previous case, the amounts unallotted were much smaller than the $2.5 billion of 2009, the unallotments affected only the second half of the biennium, the unallotments were decided upon after the governor and the Legislature had agreed upon a balanced budget, which then fell out of balance as a result of an unanticipated downturn in revenue collections after the Legislature had adjourned. (The dates and amount of all of the unallotments are on page 10 of the brief.)

In 2009, the session began with clear differences in policy preferences between Pawlenty and the DFL majority in the Legislature. Because of the bad economy, the state budget faced a big deficit unless taxes were raised, spending was cut or some combination thereof. Pawlenty was determined to avoid any tax increases. The Legislature preferred a combination of tax increases and spending cuts.

At the end of the session, the Legislature passed appropriations that, in total, would have been more than anticipated revenues under existing law, but also passed a revenue bill that raised taxes to achieve balance, based on then-current revenue projections.

Pawlenty signed the appropriations bill, used his line-item veto power to reduce them somewhat, then vetoed the revenue bill and immediately announced that he would use his unallotment  power to cut another $2.5 billion in order to balance the budget without raising taxes.

Unprecedented? Unanticipated?
This was the biggest unallotment in Minnesota history (by a factor of almost tenfold), but it was also unprecedented in its timing (the first time unallotment had ever been used at the beginning of a biennium, and the first time it was used to deal with a projected decline in revenue that occurred while the Legislature was still in session and that the Legislature had attempted to address with a tax increase). Says the brief:

“Appellants [Pawlenty’s side] argue that the unallotments were authorized by statute and necessary to address a massive, unanticipated budget crisis.  However, the facts show that the revenue shortfall was fully anticipated. The shortfall existed because the Executive decided to veto a revenue bill but not call back the Legislature.”

The brief also goes to some lengths to demonstrate that Pawlenty used unallotments to impose his own policy choices, which were reflected in the proposed budget that he gave to the Legislature at the beginning of the session, and in a number of cases, Pawlenty went beyond just changing the dollar amounts in the appropriations bills but changed formuli that were written into the law by the Legislature. In some cases, he used unallotment to impose precise changes that he had proposed to the Legislature but had been rejected. For example:

“Tellingly, the unallotments coincided with the Governor’s budget priorities unveiled in January and March 2009, rather than the Legislature’s priorities enacted in the appropriations bills which the Governor signed. For example, the Governor’s proposed budget recommended that statutory percentage of rent constituting property taxes be reduced from 19 percent to 15 percent. The Legislature considered this recommendation and decided not to enact it. Shortly after the Legislature adjourned, and using unallotment, the Executive rewrote the renter’s credit formula to accomplish what he could not otherwise achieve. This unprecedented approach to unallotment is a dramatic expansion of Executive power.”

The House brief also directly addressed one of the strongest arguments that Team Pawlenty had made in the previous round of briefs. The governor, without questions, has the power to veto a tax bill with which he disagrees, the guv’s brief argued. He is never required to call a special session of the Legislature. So if he doesn’t have the power to unallot, the alternative would be to keep spending until the state ran out of money then shut down the government. Here’s how the House brief responded:

“Appellants [that’s Pawlenty’s side] appear to blame Respondents [that’s the plaintiffs in the case who are challenging the unallotments] and the District Court [that’s Judge Kathleen Gearin, who ruled that Pawlenty exceeded his powers] for increasing the potential of a government shutdown. But they are not the ones who vetoed the bill that would have balanced the budget, and they are not the ones who refused to call back the Legislature. The real consequences of Appellants’ construction of the statute would be unprecedented, unchecked Executive power to make law and reorder legislative priorities: a genuine threat to basic democratic principles.”

And here’s a final summary, from the brief, of the argument:

“Disagreement between the Executive and the Legislature is inherent in our system of separated powers. But the Minnesota Constitution also provides the tools to resolve budget disagreements by the end of the biennium. It provides for annual legislative sessions and gives the Governor authority to call special sessions. It requires the Governor to execute faithfully duly enacted appropriations laws. If the departments are at an impasse, they may appeal to the people during elections held sixteen months into the biennium. The Constitution presumes that the Legislature and the Executive will abide by their constitutional duty to reach agreement and balance the budget by the end of this biennium. The constitutional process must be allowed to work.”

I hope to have the other briefs later today or tomorrow and will try to summarize whatever new arguments they evince (if evince is the word I want here).

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Comments (12)

  1. Submitted by Tommy Johnson on 02/23/2010 - 01:31 pm.

    (The governor’s brief argues that if that was what the 1939 Legislature meant, it could have said so. The court’s job is to apply the words in the statute, not try to imagine the intent behind them.)

    Yeah, “right.”

    All these years, alleged “conservatives” argue that it’s “Original Intent” that needs to guide Supreme Court decisions, and now comes Pawlenty arguing the EXACT opposite.

    This state has never seen an opportunist with bare-naked political ambitions like Tim Pawlenty.

    Too bad those attending the recent Conservative Political Action Committee (“CPAC”) don’t know T-Paw just tossed one of their guiding principles under the bus, all in the name of posterior-covering and political expediency.

  2. Submitted by Mike Tikkanen on 02/23/2010 - 01:47 pm.

    A Modest Proposal, or If Children Could Riot

    (In April of 2001, as quoted in the Aitkin Independent Newspaper, then Majority Leader Pawlenty said: “Children who are victims of failed personal responsibility are not my problem, nor are they the problem for our government.” Here’s a new addition to the Minnpost Community from someone who feels otherwise.

    300 years ago an Irish Minister wrote a highly acclaimed critical satire (“A Modest Proposal” – in its entirety below) in protest of the cruel public policies imposed on poor families that were destroying the lives of Irish children.

    Public policy at the time treated the Irish more like animals than people and their children were doomed to living lives of crime, prostitution, and destitution.

    Jonathon Swift’s satirical theme was that Irish children would be better off dead than raised in such horrible and inescapable circumstances.

    As a long time guardian ad-Litem, I have come to understand Swift’s rage at the cruelties a community can pile on to poor children.

    The idea that America’s poor working families don’t deserve education, health care, & safe homes for their children in the richest nation in the world is a cruel and unsupportable position.

    The other industrialized nations have figured out that caring for their youngest citizens guarantees healthy adults and productive communities. We now don’t rank anywhere near the top in the majority of quality of life indices among the 24 industrialized nations.

    America can’t quit building prisons and filling them with juveniles and preteen moms. We continue to quit subsidizing daycare, early childhood programs, healthcare for the poor, & education funding, while at the same time listening more and more to the mean spirited philosophies of radio and TV hosts that blame the nations ills on people that have (and always will have) the least.

    The economic arguments of caring for children are all in favor of creating productive citizens by early intervention and early childhood development. It actually costs a great deal more to continue to punish the weakest and most vulnerable among us.

    Are we really a community without compassion?

    Read Swift’s proposal and more comments at;

  3. Submitted by Beryl John-Knudson on 02/23/2010 - 04:14 pm.

    For our Governor Incognito who only stops by to veto….Impeach is not a four letter word.

    Thank you for the detailed brief and argument. This one I print to peruse slowly…a wee bit of hope to stop this totalitarian Rambo?

    We ‘ve got a gov who looks in the mirror to straighten his tie and says in arrogant surprise… “My god, HE is I!”
    (in response to T. P’s “God in charge”… point one of his four-point credo; D.C, last weekend)

  4. Submitted by Thomas Swift on 02/23/2010 - 04:54 pm.

    Mike, as both a dual Irish\American citizen, and a descendent of Jonathan Swift I must say that comparing the living conditions in 18th Century Ireland with those of 20th Century Minnesota is utterly ridiculous.

    Before running off copies of Swift’s essay, you might want to spend a wee bit of time reviewing Irish history.

  5. Submitted by Eric Paul Jacobsen on 02/23/2010 - 06:10 pm.

    I agree that Governor Pawlenty’s “unallotment” decrees are a usurpation of the power of the Legislative Branch to make laws. However, as long we maintain that line-item vetoing is legal, we can’t very well stop our governor from “unallotting.”

    As I’ve argued before, the line-item veto should not be permitted. Every law represents a hard-fought compromise between legislators who disagree. Allowing a governor to pick this compromise apart according to his or her own personal whim makes a mockery of the entire legislative process.

    If we want to empower the governor to reduce deficit spending in Minnesota, here’s a way to do it: Allow the governor to impose a proportional veto. This would reduce the spending on every separate appropriation of funds in a bill by exactly the same percentage, so as to avoid running a deficit.

    If the governor’s veto were required to be proportional, the governor would no longer be able to cut spending for people he doesn’t care about while leaving funds for favored interests uncut. Only legislators, who (in theory at least) face the opposition of other legislators when they try to play favorites, should have the power to allocate or dis-allocate funds.

  6. Submitted by Virginia Martin on 02/24/2010 - 12:12 pm.

    It is intent, exactly. A friend who was an expert witness successfully argued intent in a deposition before the US supreme court, and the case was won.

  7. Submitted by Sally Heiser on 02/24/2010 - 05:31 pm.

    What has happened to Minnesotans since I moved to Arizona? Where did you people find this guy? True, we’ve (I lived in Mankato from 1943 to 1998) had some wacko governors, but this one! Stinko!

  8. Submitted by Bernice Vetsch on 02/24/2010 - 06:21 pm.

    Thomas (#4). I believe you are missing the point of Mike Tikkanen’s (#2) message by failing to recognize that some children today, in America, live lives as deprived as those Jonathan Swift and, later in “Oliver Twist,” Charles Dickens wrote about.

    And today, as then, there is no excuse for letting such deprivation happen when we can easily afford to make their lives easier while giving them better tools through education and other experiences that will help them be strong and productive adults.

  9. Submitted by John E Iacono on 02/26/2010 - 05:25 pm.

    (#5)Eric Paul Jacobsen says:
    Every law represents a hard-fought compromise between legislators who disagree.

    >EXCEPT when one party controls both houses of the legislature, leaving the gov as the last defense against unwise legislation by tax-hungry government expansionists.

    >It is precisely then that the wisdom of our state constitution shows itself.

  10. Submitted by John E Iacono on 02/26/2010 - 05:28 pm.

    (#7) Sally Heiser says:
    What has happened to Minnesotans since I moved to Arizona?

    Nothing much, Sally. The dems have kept slurring him, and the people have kept re-electing him and continue to give him a favorable rating. Don’t believe the spinmeisters: they have an ax to grind.

  11. Submitted by Sally Heiser on 02/27/2010 - 07:08 am.

    I just don’t want him falling into the same trap set by the neocons that Sen. McCain fell into.

  12. Submitted by Eric Paul Jacobsen on 02/28/2010 - 08:28 am.

    “Every law represents a hard-fought compromise between legislators who disagree.

    >EXCEPT when one party controls both houses of the legislature.”

    Agreed, Mr. Iacono. But what happens when one party controls both the legislature and the governorship? Giving the governor extra veto power doesn’t solve this problem. It’s funny how so many people imagine that it does, and that somehow the governor’s veto will always check the excesses of the other party. There is nothing about the state constitution that requires this to happen.

    Indeed, partisans of both the Democratic and Republican Parties dream of capturing both the legislature and the governorship, so that the excessive power that our constitution confers upon the governor will benefit them alone. Shouldn’t we limit this power instead?

    The best way to prevent single-party rule in the Legislative Branch is to have more than two parties, and the best way to get more than two parties represented is make elections more proportional and more accurately representative of popular ideas. Instant-runoff voting is a tried and proven means to this end.

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