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Stop me before I amend again: DFLers’ constitutional paradox

MinnPost file photo by James Nord
This year, Sen. Tom Bakk wants to ask voters to raise the bar for putting constitutional amendments on the ballot.

The Minnesota Legislature has a constitutional amendment problem.

Some lawmakers say Minnesotans are suffering from “amendment fatigue” after the 2012 election, when voters faced two controversial amendments on the ballot — a ban on gay marriage and a photo identification requirement to vote. The then-Republican majorities were able to bypass Gov. Mark Dayton’s signature and put the issues to voters with a simple legislative majority.

Minnesotans rejected both amendments, bucking national trends after expensive campaigns accused Republicans of legislating through the Constitution.

But now in the majority, DFL lawmakers have proposed a number of ballot issues, from Sunday liquor sales to a brief interlude in which the minimum wage issue was pitched as a ballot question. These DFLers argue some things are simply too hard or downright impossible to handle legislatively.

Senate Majority Leader Tom Bakk understands the problem better than most. Last year, he pushed a successful 2016 ballot initiative that will ask voters if an independent council should be established to determine how much legislators are paid, breaking years of logjam over the issue in St. Paul.

This year, he wants to ask the voters to raise the bar for putting constitutional amendments on the ballot in the first place.

“I think amending the Constitution is very, very serious business. I think a higher threshold requiring bipartisan vote — so that one party can’t make a decision to amend the constitution — is the right public policy,” Bakk said. “I think having some bipartisan agreement on that makes for a better process, potentially a better amendment and better language than allowing one party to do it without the other.”

Of all the DFL amendments, making it harder to put initiatives on the ballot seems the most likely to get support. Bakk said House Speaker Paul Thissen has privately shown some interest.

Referring to the 2012 election, Thissen says, “We saw the impact and the debate around what should be in our Constitution or not. That doesn’t foreclose the fact of the kind of ‘good government’ constitutional amendments, like making it harder to amend the Constitution. That’s clearly something that belongs in there, but we obviously have not moved on any of those as of yet.”

Amendments in the queue

Each legislative chamber has introduced about 20 constitutional amendments over the last two sessions. Some pop up every year, like the one to abolish the office of the lieutenant governor or the amendment to make the Legislature one chamber instead of two. Other perennial amendments aim to put term limits on legislators or shrink the total number of lawmakers who can serve.

This year, DFL Sen. Roger Reinert has proposed an amendment that would ask voters if they want to buy booze on Sundays. Polls show strong public support for Sunday liquor sales, but the Legislature routinely rejects efforts to lift the blue law at the behest of the Minnesota Licensed Beverage Association and its army of Mom and Pop liquor stores.

But the amendment was proposed as part of a bill package to ease Sunday liquor bans; Reinert acknowledged immediately that it was more of a way to show legislators there’s another path forward, rather than a concerted effort to put it on the ballot.

MinnPost photo by Briana Bierschbach
Sen. Ann Rest proposed a minimum-wage constitutional amendment. The issue has since been settled legislatively.

At the peak of intra-DFL tensions over a minimum wage deal that included indexing, DFL Sen. Ann Rest briefly proposed an amendment to ask the voters if the minimum wage should be increased to $9.50 per hour in 2015 and indexed to inflation starting in 2017.

Rest said she generally believes things shouldn’t be etched in the state’s constitution if they can be accomplished in statute, but occasionally there are issues that are so contentious they can’t be handled in any other way. (Lawmakers reached a minimum wage deal on Monday).

“There gets to be a point, and we’ve reached this point on other occasions as well, where an issue is so volatile, it’s so full of advocates on one side or the other, it’s not unseemly for the Legislature to ask the voters themselves to participate in the process,” she said.

Raising the bar for amendments

Immediately following the 2012 election, there was a rush from legislators to introduce ballot initiatives — more than a half dozen in all — to make it harder to pass amendments.

Under Bakk’s bill, proposed amendments would need backing from 60 percent of both the Senate and the House instead of a simple majority. The plan would also allow only one chamber to pass a particular amendment during a given year. The other chamber would have to wait until the following calendar year to pass its version.

Some think Bakk’s interest in constitutional amendments is more issue-based. On the minimum wage amendment — which Bakk co-authored — it was a negotiating tactic. (“The only response to that amendment is a determined eye roll,” said DFL Rep. Ryan Winkler, the House lead on minimum wage, during negotiations.)

On the amendment making it harder to pass amendments, Bakk told a Capitol rotunda crowd on the session’s first day that he didn’t want to retire one day just to watch Republicans take control of the Legislature and pass a right-to-work amendment. An effort to do so sputtered and stalled in the GOP-controlled Legislature in 2012. Bakk was the head of a carpenters union before becoming a senator.  

Bakk says the move is about bipartisan purity in any future constitutional amendment, adding that he wouldn’t bring an amendment to the floor unless he knew it had some GOP support.  Several Republicans have also introduced ballot initiatives to make it harder to pass constitutional amendments.

“It could be that we take that up at some point this session and have a debate about that on the floor of the Senate,” Bakk said. “The House, I think, doesn’t quite know yet whether they want to have anything on the ballot, but clearly if they put something on the ballot that’s the most likely one they’ll consider.”

Judicial elections stall

Some issues can only be dealt with in the Constitution.

For years, legislators in both chambers have pushed a ballot initiative that would move the state to a judicial “retention election” system. 

Under the proposal, judges would stand for re-election, but voters would simply cast an up or down vote to keep a judge around. If voters choose to get rid of an incumbent judge, an independent panel would review a new set of candidates and send a short list the governor, who would make the final pick. The idea is to move away from the expensive partisan judicial elections that have occurred in states like Wisconsin. 

Some smaller changes can be made in statute, but changing the election process can only be accomplished through an amendment, said GOP Rep. Michael Beard, the co-sponsor of the proposal. (For the latest information on the proposal’s status in the Legislature, see MinnPost’s Bill Tracker.)

A large coalition has built up around passing the proposal, including former Republican Gov. Al Quie and former Supreme Court Justice Eric Magnuson, but the issue has once again stalled at the Legislature. Part of the reason is an unwillingness from leadership to move on any amendments.

“The core of this issue, what the advocates would really like to see changed, has to be accomplished through a ballot initiative,” Beard, who is retiring this year, said. “If there hadn’t been so many amendments on the ballot in the last eight to 10 years, it probably would have had a better chance.”

Comments (15)

  1. Submitted by Richard Pecar on 04/14/2014 - 10:49 am.

    Before making it harder to Amend the State Constitution…

    I have one suggestion.

    Next general election, let’s refer to the electorate an Amendment to the State Constitution that requires every ballot in every election to offer the voter an opportunity to cast their vote for “None of the Above”.

    I’m just saying….

    • Submitted by RB Holbrook on 04/14/2014 - 11:07 am.

      Trotting that one out again

      How many times does this one have to get mentioned? It’s cute until you try to decide what happens if “none of the above” gets a majority.

      If you are disgusted by the candidates, write in a name or leave it blank.

      • Submitted by Richard Pecar on 04/14/2014 - 11:56 am.

        Not “cute”, and it needs mentioning, often and over and over…

        The two-party offerings (plus the greens, socialists, etc., etc.) aren’t making it for many voters. I contend the portion of the electorate that is turned-off by these offerings is a sleeping giant. Time will tell. What I “hear you stating” between your written lines is you don’t want to know how disenfranchised the electorate feels. Very few of our elected representatives really wants to know this either.

        In the spirit of compromise, an alternative would be requiring the Secretary of State to publish by number how many voters cast a ballot but didn’t vote in a given race (i.e., r=35; d=35%, nvc=30% — “noc” no vote cast). And, of voters those that cast a ballot and wrote in a name, the SOS should publish a list of the names and the percent of vote that name received.

        • Submitted by RB Holbrook on 04/14/2014 - 02:27 pm.

          Then what?

          I understand that many voters feel disenfranchised. I’m just not sure what a “none of the above” offering accomplishes. I understand there are states that have this option on their ballots, but I don’t understand what would happen if “none of the above” wins a majority, or even a plurality, of votes.

          • Submitted by Joel Fischer on 04/14/2014 - 04:23 pm.

            I guess it depends.

            Do they require 50%+1 for any single candidate to win? “None of the above” is not a candidate, but it’s very informative. I’d love the option. You could actually cast a protest vote without having to vote for someone who is certain to lose.

  2. Submitted by RB Holbrook on 04/14/2014 - 11:05 am.

    Still too easy

    A requirement that proposed amendments pass both houses by a 60% majority is an improvement over the current system. It still lets it be too easy to bring an amendment before the electorate.

    A better way of doing it is the way Nevada brings amendments to the ballot. In that state, amendments have to be passed by both houses of the Legislature in two successive sessions–not calendar years, but two successive biennial sessions. The votes for an amendment would have to come from those newly elected, as well as the old guard. It only makes sense: If an amendment is a good idea in 2014, it should still be a good idea in 2016. If not, forget about it.

  3. Submitted by Alan Straka on 04/14/2014 - 01:31 pm.

    No need to amend

    We should not be amending the Constitution for anything other than fundamental rights or functions of government. What we should have is a means of enacting laws by initiative. This would allow the public to create laws without cluttering up the Constitution with things that ought not be there.

    • Submitted by Ray Schoch on 04/14/2014 - 03:26 pm.


      …and in doing so, we’d also be taking care of Mr. Pecar’s “None of the above” sentiment. If someone (or some group) has a better idea, let them put it on the ballot via initiative. If the public goes for it, then it becomes a statute (and statutory language, in all its detail and dullness, would need to be included as part of the ballot question) without cluttering up the state’s constitution. As for “None of the above” in the context of candidates for office, the real-world answer is RB Holbrook’s.

      Write in a name (or take part in a write-in campaign), or leave it blank. “None of the above” does nothing to delineate policy proposals or choose candidates for office, and in the latter case, we’re not better off without elected representatives at all – unless someone’s solution for the inefficiency of democracy is a return to absolute rule on the one hand, or embracing anarchy on the other.

    • Submitted by RB Holbrook on 04/14/2014 - 03:59 pm.

      Recipe for trouble

      Initiative is a very bad idea. Look at California–the various laws passed by initiative in the areas of taxation and school funding have rendered the state practically ungovernable. What seems like a good idea today may turn out to be inefficient or unworkable later on, but it is very difficult to repeal a law enacted by initiative. Proposition 13, for example, capped property taxes back in 1978. The state has gone from one budget crisis to another since then. Just cut spending, you say? Where? Proposition 40 from 1988 mandates that state education funding be set at a minimum of around 40% of the state budget. (Local governments don’t fund schools anymore). Corrections? It took eighteen years to modify the state’s “three strikes” law into something resembling sanity (the three strikes law was also an initiative, pushed by a radio talk show host).

      Laws are supposed to be made with some deliberation. Initiative is a breeding ground for oversimplification and “it sounded good at the time” gut reactions. We don’t need it.

      • Submitted by Scott Wood on 04/15/2014 - 04:01 am.

        The problem there isn’t initiative…

        …so much as the inability for the legislature to amend or repeal initiated statutes. If initiated statutes are treated the same as ordinary statutes, the legislature and governor could undo the initiative if they’re in agreement, but it would still be useful for bypassing gridlock. The inability to get enough votes and/or the governor’s signature to pass a bill does not necessarily mean there’s enough support for repeal.

        Another possibility is an amendment allowing the legislature to refer bills to a referendum. This would avoid messing with the Constitution just in order to bypass the governor, and there’s value in letting the people decide on controversial issues where there’s no clear right answer (as long as it’s limited to a small handful of issues per year).

        As for making it harder to amend the Constitution, that seems like a bad idea without first moving to statutes existing Constitutional provisions that shouldn’t be quite so hard to change, such as specific percentages for allocating revenue from certain taxes.

        • Submitted by RB Holbrook on 04/15/2014 - 09:31 am.


          I agree that referendum would be a good thing. I like the Colorado veto referendum, where a bill passed by the Legislature and signed by the Governor can be vetoed by the voters.

          The problem with treating initiated statutes like any other for purposes of repeal is that it defeats the whole purpose behind initiative. Presumably, the voters act when the legislature can’t or won’t. Letting them undo the voters’ actions easily makes that direct action a nullity.

          • Submitted by Scott Wood on 04/15/2014 - 10:13 pm.

            It doesn’t defeat the purpose.

            Again, a legislature that can’t or won’t enact a law is not necessarily a legislature that can and will repeal it. E.g. the house may favor the law but not the senate, or a majority in both houses support it but leadership doesn’t, or the legislature can’t get past arguing over details, or it’s dismissed as “not a priority”, held hostage for an office building, etc.

            Plus, the political implications of repealing an initiative are different from the implications of not passing a bill.

  4. Submitted by David Greene on 04/14/2014 - 09:13 pm.


    Increasing the number of votes to put something on the ballot is one thing and probably a good idea. We also need to address the other side and make passing an amendment more than 50%+1 yes votes. Make it 60% at the very least.

  5. Submitted by Greg Kapphahn on 04/15/2014 - 07:40 am.

    Disenfranchised Voters

    For all those “none of the above” voters, let me suggest that you get together and form your own political party,…

    or attend the precinct caucuses of whichever party you’d like in order to initiate change from within,…

    but if you don’t want to work hard enough to actually get organized and involved in shaping the political process of the state,…

    or if you can’t find enough like-minded people to join you in seeking to do so to exert influence on the existing parties or the other citizens of the state,…

    perhaps there aren’t nearly as many of you as you think there are,…

    or your ideas aren’t as good or useful as you believe them to be.

    Voting “none of the above” is nothing but sheer laziness and whining.

  6. Submitted by Dennis Litfin on 04/20/2014 - 09:43 am.

    A Unicameral, fulltime legislature

    would make our representatives more accountable. Now they can hide and absorb the ‘blame’ within their little groupings.

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