Carney criticizes Governor Pawlenty's "Abuse of Legislature"

Carney is seeking a running mate for Lt. Governor

Launch of Carney's video series: "Tom and me", is planned for next week
 

Contact: Bob Carney Jr. -- (612)-824-4479 (home and business)

Note: please use this e-mail temporarily -- bobcarneyjr@msn.com

My e-mail address at republicancontract currently has technical problems -- Bob

Note: if you prefer to receive news releases at another e-mail address, please let me know -- Bob

For an archive of all news releases, and more information, please visit: www.republicancontract.com

For immediate release                                                                              

Minneapolis, MN, May 18, 2010 -- Moderate Progressive Republican candidate for Governor (and journalist) Bob Carney Jr. today announced he will challenge in court the recent "Omnibus" budget bill passed by the Legislature Monday in Special Session. "The Constitutional restriction on passing bills on the last day of session does not distinguish between a regular session and a special session -- instead, it simply designates a particular day on which no bill may be passed," Carney said.

Carney will raise this issue in his case involving Governor Pawlenty's illegal unallotment of the Political Contribution Refund ("PCR"). The Special Session did not fund the PCR program going forward. "My case is now likely to turn on demonstrating that because the Legislature passed the 'omnibus' on the one day of the year during which the Constitution forbids passing a bill, what they did is legally null and void," Carney said.

Carney also offered an analysis of this year's Legislative sessions, which ended in what he called a wrongful "abuse of Legislature." At the end of the Special Session, many Legislators were obviously suffering from sleep deprivation -- one Legislator is reported to have fainted, hit his head, and been taken to a hospital.

With filing now under way, Carney has also announced he is seeking a running mate. "If you're interested, or if you know someone who you think would be a good running mate for a Moderate Progressive Republican, please call or e-mail me," Carney said.
 

Carney will challenge the illegally enacted "Omnibus" budget in Court

On Monday, May 17th, both houses of the Minnesota Legislature passed the "Omnibus state budget bill" -- the first and only bill of the first 2010 Special Session. That special session was described as a "segue" from the regular session.

It appears the intent of Governor Pawlenty in calling the special session was to "get around" this provision of the Minnesota Constitution:

Article IV, Sec. 21. PASSAGE OF BILLS ON LAST DAY OF SESSION PROHIBITED. No bill shall be passed by either house upon the day prescribed for adjournment. This section shall not preclude the enrollment of a bill or its transmittal from one house to the other or to the executive for his signature.

Article IV, Section 12 prescribes the day for adjournment as follows:

The legislature shall not meet in regular session, nor in any adjournment thereof, after the first Monday following the third Saturday in May of any year.

"If Governor Pawlenty wanted to 'get around' this restriction, he did not succeed. Section 21 makes no distinction between a regular session and a special session -- instead, it categorically states 'No bill shall be passed by either house upon the day prescribed for adjournment.' In 2010, the "first Monday following the third Saturday in May" is Monday, May 17th -- the same day the first special session passed the 'omnibus' budget bill. If the Legislature had passed the 'omnibus' budget bill a day later, there would be no constitutional issue. But they didn't -- and after one day of recovery from severe sleep deprivation, they might not have. Forcing an inhuman work schedule on legislators for days -- depriving them of sleep to the point where one legislator actually fainted, hit his head on the floor, and was taken to the hospital -- is not only unnecessary, it is wrong. Ramming through an unread, unpublished 'fix', voted on by dazed, exhausted people, is exactly the kind of abuse that is forbidden by Article IV, Section 21. The Legislature acted under duress, and in direct violation of the State Constitution. The result can only be null and void," Carney said.

Carney's legal case challenging the unlawful unallotment of the Political Contribution Refund is currently in the Court of Appeals, with a petition to the Supreme Court for accelerated review. A section of the first Special Session "omnibus" budget bill provides as follows:

Sec. 4. REFUNDS AND CREDITS.

Subdivision 1. Political contribution credit. Notwithstanding the provisions of

Minnesota Statutes, section 290.06, subdivision 23, or any other law to the contrary, the

political contribution refund does not apply to contributions made after June 30, 2009,

and before July 1, 2011.

"This language actually goes further than the Governor's illegal unallotment -- and literally tries to 'throw the PCR under the omnibus.' Unallotment can at most only defer or suspend the statutory obligation to pay the PCR refund -- and the statute for the refund provides for interest on delayed payments. The above language purports to cancel the obligation for the current biennium, including the time that is past. Attempting to reach back to July 1, 2009 also makes the provision a violation of the state Constitution's prohibition of ex post facto laws (Art. I, Sec. 11) -- a second and also fatal constitutional violation. Holding as void the illegal and unconstitutional 'omnibus' language, the Supreme Court opinion on the Brayton 'unallotment case' is point-on precedent in my case -- a direct order to lower courts that Governor Pawlenty's unallotments were illegal, and a requirement that a lower court must hold in my favor. I plan to challenge the 'omnibus' budget bill as unconstitutional and void, and to move for an immediate injunction requiring the Pawlenty administration to stop unlawfully interfering with the administration of the PCR program," Carney said.
 

Carney offered "Constitutional band-aid" for the "Unallotment mess"

Carney was at the Legislature every day from Monday, May 12, to the Monday, May 17th adjournment of the first Special Session. During that time he spoke and worked with senior Legislative leadership of both parties, including nineteen term veteran and House Finance Committee Chairman Lyndon Carlson, and Senate Tax Committee Chairman Tom Bakk. Carney's focus was on a constitutional amendment designed to directly address the consequences of the May 6, 2010 Supreme Court "unallotment" ruling in Brayton. Carlson and Bakk requested House and Senate "jackets" for a bill to introduce the amendment -- the jackets were prepared very late in the regular session. The text of the Amendment, as drafted by Carney, and argument for it, follows this news release. While Carney carried an envelope with the jackets from Rep. Carlson's office to the House chamber, where it was sent in to him on the floor, Carney has not seen the jacketed bill.

"I was pleased with the willingness of leadership of both caucuses to speak with me briefly, but repeatedly, as I worked on advancing a constitutional 'fix' for the mess ensuing from Governor Pawlenty's unlawful unallotments. Unfortunately, towards the end of the session, most Republicans were trying to avoid contact with me, and have made it clear that they're not happy with a lot of what I've been saying and doing. That's too bad... I've done nothing wrong. I can only point out that my position on unallotment comes directly from the Minnesota Republican party platform (at least in 2008) -- I favor: 'Reinstating the constitutional separation of powers and opposing legislation by executive order...,'" Carney said.

"Regarding my proposed constitutional 'fix'... It's unfortunate that this warrant: -- 'it's legal!' -- should have to be a major selling point for such a solution. Legality should be a pre-requisite -- not a featured attribute. But the simple fact is this: A properly drafted 'constitutional fix' for the 'unallotment mess',... a 'band-aid' if you will -- including provisions to finance and pay the obligations that were unlawfully unalloted -- is immune from legal challenges and difficulties. This is obviously not the case with the recent action of the Special Session. Even beyond the blatant constitutional violation -- passing a bill on the one day of the year when the passage of bills is prohibited -- there are many potential legal difficulties with the 'omnibus' budget solution," Carney said. Carney posed two major legal difficulties with the "omnibus" bill passed by the Special Session:

How can a Legislature retroactively cancel what were, at the time of the May 6, 2010 Supreme Court ruling, statutory obligations, with appropriations, due and payable, which had not been paid for almost one year? As noted, with regard to the PCR, the bill is an ex post facto law -- how many other ex post facto violations are in it?

It appears the bulk of the 'ratifications' of the Governor's illegal unallotments are in fact deferrals of obligations. Can one Legislature require a future Legislature to appropriate money for obligations not incurred, and not subject to reversal, by that future Legislature? Don't we generally categorize that as "borrowing for operating expenses?"

"These are the kind of questions that dazed legislators -- people... who have been sleep-deprived for days -- aren't able to think about carefully and clearly at four in the morning -- especially when they dimly know that not thinking about these questions will soon bring them to a warm, cozy bed," Carney said. "But young whippersnapper lawyers delight in being paid hundreds of dollars an hour to look for piles of money that a court can and should move to an account they designate. Their electric torches blaze night after night -- as they posse first to the storming, monster-making laboratory of UNconstitutionalism, and then to draw out dollars by the pitchfork from a state treasury left open to them by an exhausted Legislature and a taskmaster Governor en route to 'better things,'" Carney said.

Legislatures everywhere are known for long hours as a legislative session approaches an end. "But there are questions of degree, and of kind," Carney said.
 

The disruptive Supreme Court decision in Brayton

The current regular session was hit hard on May 6, 2010 by a well-reasoned, correct, but highly disruptive Supreme Court ruling. Before that decision, most speculation on the ruling centered on the idea that Governor Pawlenty's unallotments were illegal because they were undertaken right at the start of the biennium. But this was seen as correctable, and the continuing use of unallotment was seen by many as both legal and constitutional.

District Court Chief Judge Kathleen Gearin's December 30, 2009 opinion stated:

"...it would be improper for this Court to revisit the constitutionality of the unallotment statute itself. It is constitutional. It was the specific manner in which the Governor exercised his unallotment authority that trod upon the constitutional power of the Legislature, and the Legislature alone, to make laws that, in the Court's opinion, was unconstitutional."

"In light of the significant financial problems and the most recent budget projections, the state continues to face six month later, it is highly likely that cuts made to the appropriations in the health and human services appropriations bill will have to be made. Why then should the courts bother to enjoin this unallotment?..."

"The Court is aware that the actual revenues received by the State since the beginning of the 2010/2011 biennium are even less than predicted in the February 2009 dismal forecast. On December 2, Minnesota's Management and Budget Department reported the general fund revenues for the present two-year budget period are forecast to be $1.156 billion below pre-biennium estimates mainly because of a decline in tax receipts. Even if the budget had been balanced through painful give and take between the Executive and Legislative branches, the Governor would have had to use his unallotment authority before the end of this biennium..."

"Regarding the present situation, this Court believes that it is the Executive branch that has the institutional competency and authority to decide what appropriations should be unalloted, not the judiciary."

"The Legislative branch has the fundamental constitutional power to appropriate the public funds. This power is tempered by the Governor's veto authority. Their policy differences regarding how to deal with Minnesota's present budget situation can only be resolved by them. Those branches have the institutional competency to break the present budgetary deadlocks, not the judicial branch."

"...The Court's decision was based on the way he unalloted, not what he unalloted. Difficult decisions that will be painful to many citizens will have to be made by the Executive and Legislative branches in order to deal with the continuing budget crisis in this state. Those budget and policy decisions are not the business of the courts unless they are made in a way that violates the Constitution."

"Reading this opinion, there is every indication that however unallotments to date were resolved, future unallotments could clearly be undertaken based on the more recent $1.156 billion deficit. That deficit arose well into the biennium, was unantipated, and arguably triggered unallotment provisions of the statute. In addition, with the statement '...budget and policy decisions are not the business of the courts unless they are made in a way that violates the Constitution...' Judge Gearin strongly suggested that, absent Constitutional violations, there was no statutory barrier to what the Governor did at the start of the biennium. Why would she raise a Constitutional issue if she thought the case could be decided on statutory grounds alone?" Carney asked.

Based in large part on Judge Gearin's memorandum, before the Supreme Court ruling the "conventional wisdom" appeared to be that whether or not the Temporary Restraining Order was affirmed, unallotment could and would play a role in resolving some, and maybe most, of the budget problems going forward further into the biennium. There might be a question about what to do regarding the unallotments that had actually resulted in withholding money up to the time of a ruling. But beyond that, it seemed clear that the Governor could still unallot going forward. Agreement between the Governor and the Legislature was of course still possible. However, if the Governor and the Legislature could not (or would not) agree on what to do going forward, it appeared the Governor had this specific unilateral option:

First, cancel the unallotments up to the present, and order the money paid by executive order.

Second, cite the more recent $1.156 billion deficit, and re-unallot, effecting essentially the same overall result, but with deeper cuts within the shorter time remaining in the biennium.

Given this "conventional wisdom" the Supreme Court decision, released just eleven days before the required adjournment of the regular session, was an earthquake. In stating that the case could be decided according to statutory interpretation, the effect of Supreme Court's decision in Brayton reached far beyond anything that could reasonably be anticipated by relying solely on Judge Gearin ruling. The Supreme Court held that as a matter of statutory interpretation: absent a balanced budget, any resort whatsoever to unallotment went beyond the authority granted by the statute. The immediate aftershock was a general realization that the entire budget gap would now have to be bridged by an agreement between the Governor and the Legislature. The above-outlined unilateral "fall-back" option for the Governor was now impossible. In addition, even with the precondition of a balanced budget met, many unresolved statutory issues remain.

"Abuse of Legislature" -- the proper role of the Governor

"The 2010 regular session was difficult from the start. But progress was being made until the Supreme Court ruling. After that ruling however, dealing with the consequences of a deficit that had suddenly grown to $3 billion didn't just overwhelm all other issues. It also raised the pressure on the Legislature way above the inevitable very heavy work load at the end of a session. Governor Pawlenty has criticized the Legislature for 'not getting its work done on time' for so long -- and frankly so effectively -- that it became possible for the Governor to manage a situation where the Legislature was functioning under what amounted to duress," Carney said.

"As an alternative to the Constitutional 'unallotment band-aid' I promoted, I think Legislative leaders could quite properly have announced several days before the end of the regular session, that they would work the 'usual long hours, but no more', and that under the circumstances -- almost entirely of Governor Pawlenty's making -- the Governor had the duty to call a special session to allow needed time for a carefully considered solution. Of course, they didn't do this. I am absolutely serious in saying that the process that has gone on is an abusive process. I think it's worth asking some experts what kinds of psychological factors might be operating to lead a group of Legislators to allow themselves to be repeatedly abused -- without standing up for themselves and their institution -- and without confronting the person who was abusing them," Carney said.

"The central focus of my campaign is the idea that the Governor's role in a '...republican form of government...' is properly quite limited. The Governor's main task with respect to the Legislature is to help the Legislature function as a deliberative body. Aside from the question of whether Legislators, individually or as a group, should have stood up for themselves and their institution, we must also question Governor Pawlenty's actions -- and his attitude -- as these bear on the proper role of a Governor. I think Governor Pawlenty's whole approach to government -- from day one -- has been fundamentally unrepublican. A Governor can and should hold the Legislature responsible and accountable. If there is a serious, ongoing disagreement over spending priorities, the Legislature should initially be called into special session at the request of its leaders. A reasonable time restriction -- say, up to a month -- is appropriate to agree on in advance. But a Legislature should never be called into a Special Session on terms that aren't agreeable to it, and that won't allow it the time needed to deliberate," Carney said.

Carney does not advocate "chronic" special sessions. "We need to recognize the importance of trying to maintain a Citizen Legislature. I've been told by a Republican House member, paraphrasing: 'we have jobs', but many of the DFL members consider themselves to be, in effect, full time Legislators. It's important to make it possible for at least some members to have an on-going career outside of the Legislature," Carney said.

"When a Governor and a Legislature have a continuing disagreement over spending, and after the Governor has made some concessions to the Legislature to achieve a balanced budget, the Governor should then take the case to the citizens of Minnesota -- calling on them, in our present circumstances, to elect new Legislators who are more willing to cut spending. A Governor should never treat Legislators disrespectfully, and should certainly never use sleep deprivation as a bargaining tool. And of course, unallotment should only be used as intended, as a mid-course correction for down turns during 'normal times'. I don't see such 'normal times' coming any time soon. Unallotment only allows us to defer or suspend... when you have chronic deficits, unallotment can only make things worse by pushing bills in to the future. For this reason, unallotment must be off the table for years to come," Carney said.

"I agree with Governor Pawlenty that when he came into office the State government's spending trajectory -- ten percent average annual increases for forty years -- was and is unsustainable. However, over the course of his four biennial budgets this increase has averaged two percent per year -- half a percentage point below inflation. During Governor Pawlenty's eight years, average State spending in Texas has increased faster than in Minnesota. We have seen an over-correction -- we need to go back to a more balanced approach. But we also need to understand that we're seeing some fundamental sea changes in the United States economy. The idea of a steady increase in the size of Government -- with steady pay increases and generous benefits -- is fundamentally unjust when the private sector, and small business in particular, are hurting as badly as they are today. This is a deeply entrenched expectation. We are heading for years of contentious politics. To thrive in the next few years, we can and must find ways to maintain high levels and quality of service while adjusting the compensation of pay and benefits for Government services to the new economic reality facing the private sector and small business. The Legislature is the forum for resolving these issues -- the Governor can't do the Legislatures dirty work, and shouldn't try," Carney concluded.
 

Candidate for Lt. Governor wanted

With filing now under way, Carney has also announced he is seeking a candidate for Lt. Governor. In Minnesota, candidates for Governor and Lt. Governor run as a team. Candidates must be 25 or older by 1/3/2011, and a resident of Minnesota for at least one year by 11/2/2010. To run in a partisan Republican primary, Minn. Stat. § 204B.06 Subd. 2 requires the candidate "... shall state on the affidavit of candidacy that the candidate either participated in that party's most recent precinct caucus or intends to vote for a majority of that party's candidates at the next ensuing general election."

"If you meet these requirements, which cannot be waived, I am open to talking with anyone until the position is filled. Outside of filing the affidavit of candidacy, you won't necessarily have to do anything, although campaigning is an option," Carney said.

"If you're interested, or if you know someone who you think would be a good running mate for a Moderate Progressive Republican, please call or e-mail me," Carney said.
 

If "life is like a river", what was Governor Pawlenty doing on a lake?

At a recent news conference, Governor Pawlenty had this to say: "People often talk about life being like a river, I think that's true. And as we think about that analogy, you have to decide how you want to navigate a river. And every once in awhile, as you travel down a river, you reach a fork in the river, and you have to decide which way to go."

"Governor Pawlenty doesn't seem to understand water and rivers very well. When rivers meet, they unite... and until delta regions I don't know of any example of a river dividing into two rivers -- but I'm willing to be educated on this. In addition, we need to keep in mind that rivers are 'navigated' within very narrow confines, defined by the river -- not the navigator. Rivers -- like the majority of the electorate -- are uniters, not dividers. It's true that the course of a river can shift over time. In fact, the Minneapolis chain of lakes (Harriet, Calhoun, Isles and Cedar) is believed to be part of an older riverbed of the Mississippi..., way back when there were Republicans in Minneapolis... and not just in Lakewood. It looks like the Governor got off his lake too late during the last Legislative sessions (2... count 'em, 2.) Maybe he needs to realize that to 'navigate' a river, you first have to be on the river -- and in the mainstream -- not heading up some Maine stream forking to New Hampshire," Carney said.

<end>

Below is the front side of a two sided 8.5" x 5.5" handout distributed by Carney at the Legislature last week.  The underlined revenue provision was added to an earlier draft, after a brief conversation with Sen. Bakk.
 

The "$2.1 billion dollar band-aid" -- A Constitutional "fix" for the unallotment mess -- 5/12/10:

The amendment would include a provision for revenue

On or before July 1, 2011, the State of Minnesota shall issue up to one billion dollars in general obligation bonds, to be amortized over 12 years, with only interest paid for the first two years, and with proceeds going to the State General Fund, to be available to pay prior statutorily created obligations and any other amounts that were unalloted before a May 6, 2010 Minnesota Supreme Court decision held such unallotments were and are unlawful.

The revenue recognition shifts and school aid deferrals undertaken pursuant to the 2009 unallotments, totalling [$1.7 billion, exact number to be determined] are ratified. The school aid deferrals, totaling [exact number], shall be repaid by the Legislature separately, without use of the bond proceeds, over a ten year period, with reasonable interest, according to a repayment schedule to be determined by the Legislature.

All other unlawfully unalloted prior statutorily created obligations shall be paid on or before July 1, 2011, together with reasonable interest. Any other amounts unlawfully unalloted may be paid at the Legislature's discretion. By the Legislature's approval of this amendment, notice is given that if this amendment is approved by the voters any legal action pursuant to enforcing any said prior statutorily created obligation is moot, and no award or legal fee shall be paid by any government entity for any such legal action.

The Legislature shall implement this amendment through appropriate legislation passed by a majority of both houses, which may include provision for new revenue less than or fully sufficient to retire the said bonds and pay the cost of the school aid deferrals, but the implementation of this amendment shall not be subject to veto by the Governor.
 

---- BACK SIDE OF AMENDMENT TEXT ---- this was a 1/2 page, two sided handout
 

Here's why this should be "Plan B"^*

1. There is no need to panic. If this amendment is approved for the November ballot, a special session can still be called, and everyone can still work together to solve part or all of the problem before November. The Legislative process can and should function properly, with sufficient time for brain-storming, deliberation, participation, and transparency.

2. The unlawful unallotments are almost entirely statutory obligations. If they are not addressed properly, we may be headed for a thicket of lawsuits. The alternative is some kind of intimidation -- putting pressure on organizations not to sue -- with an implied threat of retaliation. Is that how we want our Minnesota to be governed? What precedents are being set? There is a big difference between making cuts going forward and ratifying unlawful cuts.

3. The Governor has no role in the constitutional amendment process. As noted, Governor Pawlenty can call a special session. Meanwhile, why not just go around him?

4. At this point in the biennium, the issue is cash flow, not taxes. The solution to a cash flow problem is financing.

5. The citizens of Minnesota can properly decide this issue. When the situation is explained, there is good reason for Minnesota to approve this "fix." If the vote is "no", that would be a clear indication that some very serious budget cutting is demanded going forward. The cash flow consequences could be managed, but it wouldn't be pretty.

6. The Amendment. A discussion with Senator Bakk prompted this. The first version includes no provision for revenue. Minnesota must resolve the revenue question going forward -- the coming election will probably turn on this issue. The revenue amendment would fully resolve the "unallotment mess", (ER, not band-aid), but go no further -- and no part of the "fix" can be vetoed (Emmer insurance). However, including a revenue provision makes it more likely the amendment will not pass in November. The choice is yours.

For more detail, www.republicancontract.com, see the 5/10 news release.

* We've seen two "Plan A's".

Prep. & pd. for by the Carney for Gov. Comm., 4232 Colfax Ave. So., Mpls., MN 55409