“Whose job is it to enforce the Constitution?”
Jack Davies — former Senate Judiciary Committee chair, Minnesota Court of Appeals judge and William Mitchell College of Law professor — put the question to me in a tone that sparked a flash of sympathy for his former students.
Davies had just emerged, scowling, from a meeting of the House/Senate conference committee on the public safety budget bill. He was eager to expound on the importance of the state Constitution’s single-subject rule, which he had just seen conferees blithely ignore.
“Seventy-one pages, and only 15 pages are budget provisions,” he said in disgust. “They’re creating new crimes in a budget bill!”
I’d come from the conference committee shaping budgets for state agencies, which was trampling all over the same provision in the state’s founding charter. Time to consult the drafter of the post-1974 Minnesota Constitution. That’s something one can do most days during sessions by scanning the Capitol’s corridors for a spry 85-year-old wearing running shoes and carrying a bulging briefcase.
(Permit a state history side trip: For the first 116 years of statehood, Minnesota had two mostly identical constitutions, one prepared by Republicans, one by Democrats, both blessed by a sorely divided U.S. Senate in 1858. Having two constitutions proved to be a nuisance. Davies, in 1973 the new Senate judiciary chair, redrafted the two into one on his kitchen table with help and indulgence from the redoubtable Pat Davies, his wife. The Legislature made his version a constitutional amendment, and the voters adopted it in 1974.)
The “single-subject rule” is Capitol shorthand for Article 4, Section 17 of the Minnesota Constitution: “No law shall embrace more than one subject, which shall be expressed in its title.”
It’s “the one provision in the Constitution that applies to legislative procedure,” Davies instructed. It was included in the original two constitutions for a bunch of good reasons. The single-subject rule makes lawmaking easier for the public to follow. It prevents “logrolling,” the bundling of several unpopular provisions into a bill that can obtain a majority vote.
It makes for more bills, which means more legislators are directly engaged in enacting them. If the 2015 Legislature had adhered to the single-subject rule, it likely would have passed more than the 80 bills it did — the smallest number in state history. And a lot of legislative talent would not have been idle in the session’s final weeks while leaders cut deals (or didn’t) in closed meetings.
More’s the point for 2017: The rule protects the governor’s veto power. Legislators know that a governor who wants to keep government operating is disinclined to veto budget bills. So, the thinking goes, load up a “must-pass” budget bill with policy provisions that the governor opposes and see if he’ll heave a sigh and sign them into law.
That worked like a charm two years ago for legislators and their county allies who wanted to strip the office of DFL State Auditor Rebecca Otto of its authority to audit county budgets. Dayton — a former state auditor who understands the importance of audits by an office accountable only to the voters — would not have signed those provisions into law as a stand-alone bill. But when they appeared in a budget bill needed to avert a July 1 government shutdown and the calendar already said mid-June, Dayton complained, swallowed hard and signed.
That’s one of many latter-day examples of the legislative branch’s willful — and bipartisan — disregard for the Constitution’s single-subject rule. But it’s the one that’s teed up for notice by the judicial branch. An amicus brief filed with the state Court of Appeals in Otto’s lawsuit over the loss of her office’s jurisdiction is devoted to the Legislature’s violation of the single-subject rule. Among the parties to that brief: former Judge Jack Davies.
So, Prof. Davies, to your question: Who should enforce the Constitution? Legislators ought to. All legislators swear to support it as they take their oath of office. Legislative leaders should want to. If they don’t and they get caught by the courts, they’ve handed ammunition to their political opponents.
As Auditor Otto discovered in 2015, the governor’s veto power isn’t an ideal enforcement tool. The gubernatorial bully pulpit is weaker still. This year Dayton has asked legislators repeatedly to separate policy provisions from budget bills. By Dayton’s count, this year’s bills disregard his request in 609 instances.
So is the correct answer “the courts”? “The courts can act only when people bring a lawsuit, which is expensive,” Davies said. “Besides, a lot of people who are offended by the Legislature are afraid of offending the Legislature further.”
But when a case arises that allows the judicial branch to enforce the single-subject rule, judges ought not hesitate, Davies said. He joined the amicus brief in the Otto case to make that point.
“Judges sometimes are not aware of how effective they can be,” Davies said. “The real tool the courts have is an educational tool. They can say, ‘You can’t do it that way, and here’s why.’ When they do that, they are doing a favor for the Legislature.”
I’d say they’d be doing a favor for the public. After all, the Constitution is the document of “we, the people.”
Lori Sturdevant, an editorial writer and columnist, is at email@example.com.