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Is the latest deal to end the 2020 Legislature even constitutional?

The mechanics of the deal — putting a tax bill inside a public construction projects bill — are rare if not unprecedented, and some GOPers are questioning whether it’s even legal under the Minnesota Constitution.

Minnesota State Capitol
Minnesota State Capitol
MinnPost photo by Peter Callaghan

A fledgling deal to end the 2020 Minnesota Legislature contains an unusual means of gathering enough votes to pass a key element: putting a $1.35 billion public construction projects bill and a $99 million tax cut in the same bill. 

Large omnibus bills organized under very broad subjects have become commonplace at the Legislature, with the most-extreme being a bill in 2018, nicknamed Omnibus Prime, that contained nearly the entire work product of the House and Senate. 

Even amid those circumstances, though, putting a tax bill inside a bonding bill is rare if not unprecedented. And some Republican House members are questioning whether it would make the bonding bill itself illegal.

Yet Republicans also say the issue is probably moot. Unless there is movement on their concerns over the use of emergency powers by Gov. Tim Walz — and because bonding bills need a 60 percent supermajority to get through the House — there aren’t the votes to pass the bill anyway.

Still, House Speaker Melissa Hortman said she plans on bringing the combined bill to a vote Monday, the third official day of the second special session. But that is just one of the deals that will have to come together this week for a conclusion to the 2020 Legislature. Also still in play are policing reforms and a small supplemental budget. 

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A political shotgun marriage

The bonding bill, House File 3, began its legislative life as a straight capital construction measure. In its latest configuration, it authorizes $1.35 billion in general obligation bonds for state and local building projects. It also authorizes the sale of $300 million in trunk highway bonds and $147 million in appropriation bonds, the latter of which includes $100 million in bonds for affordable housing.

House Speaker Melissa Hortman
MinnPost photo by Peter Callaghan
House Speaker Melissa Hortman
The tax cut measure, a provision that’s been pushed by Senate Republicans, was attached as an amendment last week. The largest item is a saving for farmers and small businesses who make equipment purchases. The change, known as Section 179, syncs the state tax code with federal law.

In the past, bonding bills and tax bills have been handled separately; the 60 percent approval requirement for bonding bills is difficult, and folding other priorities into it hands the minority party bargaining power it would otherwise lack. 

But Hortman said it is being done for reasons of practical politics. DFLers, she said, don’t support the tax bill. Republicans don’t want a bonding bill that spends more than $1 billion. For both sides to get what they want, they have to vote for things they don’t want. Hence the political shotgun marriage.

“By putting these two issues together, we make it possible to have both a bonding bill and a tax bill where neither would be possible on their own,” said Hortman, a Brooklyn Park DFLer.

House Republicans skeptical

Yet some Republicans, as well as one DFL Senator, said the action could violate the state constitution’s single-subject clause: Article IV, Section 17, which states: “No law shall embrace more than one subject, which shall be expressed in its title.” 

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“I don’t think I ever recall a tax bill or a tax provision being put into the bonding bill,” said Rep. Jerry Hertaus, R-Greenfield, during a meeting of the House Ways and Means Committee that adopted the combination. “I think this violates the single-subject clause.” 

“I believe a bonding bill has to be single-subject and cannot have all these other issues involved,” said Rep. Greg Davids, a Preston Republican who chaired the Taxes Committee when Republicans last had the majority. “Clearly, we’re violating the single-subject rule. I don’t think you can sell the bonds with all of these unrelated issues in it.”

Senate Majority Leader Paul Gazelka
MinnPost photo by Peter Callaghan
Senate Majority Leader Paul Gazelka
The deal to combine the two issues  was struck between the House DFL and the Senate GOP. “The House and Senate majorities, with the governor, have a package of bonding and taxes that for all intents and purposes have agreed to,” Senate Majority Leader Paul Gazelka said. “The Senate is ready to pass the bonding bill. I believe it will be linked with the tax bill. But it has to originate in the House and that’s where I cannot predict it.”

Because of the 60 percent majority rule to pass bonding bills, the two minority caucuses have some clout that normally eludes them. For House Republicans, that means insisting on imposing some controls over the emergency powers Gov. Tim Walz has invoked to combat COVID-19 in Minnesota. 

Rep. Pat Garofalo, a Farmington Republican who is the GOP lead on the House Ways and Means Committee, said Walz and DFLers are finally starting to talk seriously about the emergency powers issue. “Emergency powers have gone from something that’s non-negotiable to something that’s being negotiated,” he said. “There’s a recognition that the emergency statutes that we have aren’t really well situated for a pandemic. Pandemics don’t last weeks, they last months. We have to have something other than the status quo of one guy making all the decisions.”

If some changes to executive authority can be agreed to, there will be enough votes to pass the bonding bill, Garofalo said. At that point, however, he doesn’t see why the bonds and the tax cuts should be in the same bill — other than to provide cover for DFLers who don’t want to vote for the tax bill or to give Republicans extra assurance that Walz won’t sign the bonding bill and veto the tax bill.

Hortman has said she is continuing to work with House GOP leadership, but on Friday she also said she will bring the combined bill to vote Monday, even without a global deal. “It’s time for House Republicans to leave aside unrelated matters and join us in passing this agreement on behalf of Minnesotans.”

Is it legal? 

The tactic of putting the two issues together follows what has become common end-of-session practice on other issues. “There are many times when issues get combined because neither issue on its own has enough votes to be enacted,” Hortman said. “With regards to bonding and taxes, it has always been the construct of Republicans in the Minnesota Senate and the Minnesota House as well that they would not agree to a bonding bill over $1 billion unless they got tax cuts. In order for us to get the votes we need to pass the bonding bill from Republicans we need to put that tax cut in that bonding bill.

“That tax bill would not have enough votes to pass the Minnesota House if it were not inside the bonding bill.”

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But criticism of the deal did not come just from House Republicans.

“I’ll start with the obvious. It’s unconstitutional,” said Sen. John Marty, a DFLer from Roseville who has been a critic of the expanding use of omnibus bills. “Even if our Supreme Court is unwilling to say so, the constitution is clear.” 

State Sen. John Marty
State Sen. John Marty
He said he is not a fan of trading votes, but Marty said there are other ways to cobble together majorities on bills that might not otherwise have enthusiastic support. “If leadership wants to offer up a bonding bill and a tax bill, they can do so, as long as they are separate bills, where they are separately debated, and where any legislator can vote for or against each one,” he said. “If leadership wants people to agree to vote for both, they can twist arms. They can give them political cover by saying that they asked the legislator to vote for a bonding bill in order to get passage of the tax bill, or whatever.”

Citing examples in the recent past when the method has been successfully used is not a legal defense, he said. “Pointing to the most disgraceful violations of the rule isn’t proof that it’s ok.”

Could the single bill endanger the legality of the sale of bonds? 

As precedent, staff attorneys for the Ways and Means Committee cited the language in an omnibus tax bill in 2014 that authorized the sale of bonds for the new Senate office building. And Minnesota Management and Budget Commissioner Myron Frans said he has checked with bond attorneys who think it is legal because the bill began its legislative life as a bonding bill and had tax provisions added to it. 

“The critical thing is that this is a bonding bill that we’re adding to, it’s not another bill that we’re adding bonding into,” he said. “That’s one of the key ingredients of a successful bonding bill from that perspective.”

Frans also warned that if lawmakers don’t authorize bonds soon, it would cause the state to miss its normal August bond sale and would delay many of the construction projects included in the bill.