It’s been an unspoken but ever-present threat for the Walz administration from the beginning of the 2022 legislative session: Would a state Senate controlled by Republicans continue to remove the DFL governor’s commissioners?
It has been a problem for Walz since his Department of Labor and Industries Commissioner Nancy Leppink and Commerce Commissioner Steve Kelley were removed under the Senate’s advise-and-consent authority in 2020. It came up again in 2021 when Pollution Control Agency Commissioner Laura Bishop resigned under the threat of removal.
Walz refused to convene special sessions last fall to respond to economic and health needs related to COVID-19 without a pledge that the Senate wouldn’t go after his top administration officials. Even when Senate Majority Leader Jeremy Miller said his caucus wouldn’t try to remove Health Commissioner Jan Malcolm but might try to restrict Walz’s other health orders, Walz said he didn’t want to bring legislators to town.
But on Thursday, during a session of the MinnPost Festival, Miller took confirmations off the table for the rest of the regular session — more specifically: votes to not confirm appointees — which must end by May 23.
“It’s a very serious thing to confirm or not confirm commissioners,” the Winona Republican said. “But there are three and a half weeks of session. I think it is highly unlikely that any confirmation votes would come up between now and the end of session, unless something pops up that I’m not aware of.”
That is likely good news for Walz and at least three commissioners who have drawn criticism from key Republicans: Malcolm, Housing Finance Commissioner Jennifer Leimalle Ho, and Corrections Commissioner Paul Schnell.
Minnesota has a confirmation system that has both advantages and disadvantages for governors. Appointees can serve without being confirmed so they can start work immediately. But there is also no deadline for action, which means the Senate — especially when it is controlled by parties different from the governor — can hold do-not-confirm threats over commissioners for years.
Malcolm has been the administration’s lead on the health responses to COVID-19 and Walz has relied on her heavily since the pandemic was declared. He has said Malcolm’s confirmation was a proxy by senators unhappy with his use of his executive powers during COVID.
But some GOP senators have said Malcolm hasn’t communicated with them about decisions before they were announced, and Sen. Jim Abeler gave a speech last August about concerns that the state hasn’t done enough to provide information about potential side-effects of vaccines. “It seems the only language the governor understands is the removal of another commissioner,” Abeler said that day.
Thursday, however, Abeler said that after that he also suggested a truce — that he wouldn’t act if Walz or Malcolm talked to him about his concerns and perhaps change the messaging about the risks of side effects. Instead, the Walz campaign used his speech to raise money for the campaign, Abeler said.
Abeler, an Anoka Republican who chairs the Human Services Reform Finance and Policy Committee, never took up Malcolm’s confirmation and said he agreed with Miller’s statement about not taking any action this session.
Schnell, who also serves on the state Sentencing Guidelines Commission, drew criticism from some GOP senators for his role in rules that cap post-release probation for some people convicted of crimes to five years. That should have been a legislative decision, they argued.
“The role that Commissioner Schnell had on the Sentencing Guidelines Commission in recommending the five-year probation cap is concerning,” said Sen. Warren Limmer, R-Maple Grove, and the chair of the Senate Judiciary Committee.
Ho had drawn criticism for how she managed the RentHelpMN rental assistance program, which was funded with federal COVID response dollars. Sen. Rich Draheim, the Madison Lake Republican who chairs the Senate Housing Committee, expressed concerns that the program was slow to start, was hard on applicants, was slow to get money to landlords on behalf of tenants and wasn’t transparent.
Last week, however, Draheim said while the decision to confirm or not confirm was a GOP caucus decision (“That’s above my pay grade,” he said), he wouldn’t recommend bringing up Ho’s confirmation this session.
“I have a pretty good relationship with Commissioner Ho,” Draheim said. “It’s a tough job. I get it. I don’t know what good it would do at this point in time to remove Commissioner Ho. But that would be up to the caucus.”
Historically, very few commissioners have been formally voted down. Records compiled by the Legislative Reference Library show that just seven commissioners have been rejected by the Senate in the past two decades. Three others resigned in the face of a likely vote to not confirm.