The passions have cooled from Minnesota’s direct democracy trial of 2012, when the hot issues of gay marriage and voter ID were put to voters, and some legislators are now taking a critical look at the machinery that allowed that to happen.
Senate Majority Leader Tom Bakk, DFL-Cook, and veteran Sen. Dick Cohen, DFL-St. Paul, want to make it harder for the Legislature to run to the voters with partisan, emotional issues, and risk permanently enshrining today’s popular opinion into the state Constitution.
“I feel very strongly about it,” said Bakk, a former union official who worries that a right-to-work policy, which unions see as a threat to the standard of living, could be pushed into the Constitution by a future GOP-controlled Legislature.
“To the extent that I can put something in the way to make it a little more difficult for one party to put something on the ballot, it will make me more comfortable when I leave,” Bakk said.
Minnesota does not have California-style initiative and referendum, in which citizens and special interests can petition and campaign to write new laws or change existing laws. It does have a relatively easy path to put proposed constitutional amendments on the ballot for voters to consider, which can be used as a backdoor initiative or a way to circumvent a governor’s opposition.
In 2012, voters rejected both the marriage and voting amendments after furious and expensive campaigns. Bakk argues that while those issues received full pro-and-con airings, most proposed amendments in recent history have been approved by voters without such debate.
Putting an amendment on the ballot requires only a simple majority of the House and Senate. Bakk would require a “supermajority” of 60 percent in each body and a waiting period before the issue goes before voters.
Cohen, who initially wanted a two-thirds majority but agreed to Bakk’s three-fifths margin, told a committee hearing that the 2012 experience was the “elephant in the room,” showing the effect of putting highly partisan issues to a vote. Cohen said both parties have done this over the years.
“If you’re going to amend the Constitution, that should be done on a bipartisan basis,” Cohen said.
Getting a proposed amendment on the ballot is relatively easy. Passage is not. An amendment must get a majority of the votes cast on the ballot question. Those who vote for high offices but ignore the amendment question are counted as “no” votes.
Bakk’s proposal would require 81 votes in the House, instead of the bare majority of 68, and 41 in the Senate instead of 34. Had that threshold been in place in 2012, neither the marriage ban nor voter ID would have had the support to go on the ballot.
People change state constitutions. Forty-nine of 50 states (Delaware is the outlier) require voters to approve amendments. To get amendments on the ballot, 26 states require a supermajority vote in the Legislature. There are 17 states, like Minnesota, that require only a simple majority, but some of those states, including Wisconsin, make it harder by requiring two legislative votes with an election intervening.
Since Minnesota became a state in 1858, there have been 213 proposed amendments to the Constitution, with 120 adopted. From 1982 until the defeats of 2012, only one of 18 amendments failed — a period in which voters established the Minnesota Lottery and racetrack betting, provided for limited recall of misbehaving officials and abolished the position of state treasurer. The most significant recent amendment passed was the 2008 “Legacy” amendment, which raised the statewide sales tax and dedicated that money to outdoors and arts programs for the next quarter-century.
That was a controversial measure in the Legislature, but it went on the ballot with support from members of both parties and would have met Bakk’s 60 percent support threshold had it been in effect.
Politics is part of the calculation in deciding when to put a measure on the ballot. In 2012, the GOP lost both its amendments and control of the House and Senate, and many argue the two are related. House Speaker Paul Thissen, DFL-Minneapolis, whose members stand for re-election in November, is not as amendment-friendly as Bakk, whose members will not be on the ballot until 2016.
Bakk’s proposal and a constitutional change aimed at insulating the judiciary from highly partisan election campaigns are at the head of the amendment queue for 2014. But the speaker has indicated he wants to keep the brakes on.
“Generally speaking, I feel like there is a bit of voter fatigue with constitutional amendments,” Thissen said. Before moving an amendment to a floor vote, he said, Thissen would informally use Bakk’s rule, that there be a bipartisan supermajority.
During recent debate on another high-profile amendment, which would change the way judges achieve and retain their offices, opposition came from the powerful anti-abortion lobby, Minnesota Citizens Concerned for Life. Opponents attacked it as taking the vote away from the public and giving it to an unelected group of political appointees. Keeping the judicial amendment off the ballot would be a way to keep this chatter out of a tough House election.
Sen. Dave Thompson, R-Lakeville, wanted a third amendment on the ballot in 2012 — the very “right to work” measure that Bakk is worried about. Thompson, now a candidate for governor, argues that Bakk’s proposal to raise the bar for constitutional amendments would deprive voters the chance to decide important issues — a similar argument that is raised against the judicial measure.
“Do we really want to prevent the people from making a statement on big issues?” Thompson said.
Already a question for 2016
Whether any amendments survive to go on the ballot this year, the 2016 general election already has a proposed amendment on the ballot. It would prohibit legislators from raising their own pay, a power they rarely exercise, and assign that role to a citizens council. If there is backfire, all 201 legislators would share it, because both houses will be on the ballot.
Whether the tried-and-true way of rewriting the Constitution will be altered could be a tough fight this year. The Bakk-Cohen plan would itself be a constitutional amendment, and voters would have to approve it.
In a recent committee hearing, Sen. Dan Hall, R-Burnsville, asked Bakk if he planned to apply his 41-vote standard to getting his own measure through the Senate, even though a simple 34-vote majority is all that is required.
“I think it would send a bad message if we didn’t have 41 votes,” Bakk told him.
“I’ll take that as a yes,” Hall replied.