With Election Day 2012 behind us, many political activists and observers have begun to think about the 2014 elections. In Minnesota, most of those conversations have focused (understandably) on the two races at the top of the ticket and who might step forward to take on Gov. Mark Dayton and Sen. Al Franken.
But as Republicans consider how to break the one-party monopoly Democrats currently hold in Minnesota state government, there are also three other statewide offices that deserve and demand our attention. One of those offices in particular -- Attorney General -- has been held by the DFL party since 1970: over 40 years.
Three recent examples illustrate how poorly Minnesotans have been served by one-party rule in the Attorney General’s office. Over and over again, the current DFL Attorney General -- Lori Swanson -- has sided with her own party rather than with the people of Minnesota.
NFIB v. Sebelius (the "ObamaCare" case)
The concept of federalism is fundamental to our constitutional order. Our federal government is a government of limited, enumerated powers, with certain powers left to the states and the people. When the federal government oversteps its power, it is especially the job of each state to stand up for itself and its people by challenging the federal government’s actions.
When President Obama’s health care legislation sought to expand federal government power in at least two unprecedented ways, a majority of the states (for the first time in American history) stepped up to challenge that law in court, including every one of Minnesota’s neighbors. But when then-Gov. Pawlenty asked Attorney General Lori Swanson to participate in that court challenge, she responded with a letter defending the federal government’s actions.
In that letter, Attorney General Swanson took an expansive view of federal power, arguing that the individual mandate was a proper exercise of the federal power to regulate commerce and that the threat to withdraw all Medicaid funds from any state which did not participate in a massive expansion of Medicaid was a proper exercise of Congress’s spending power. (When the case was before the U.S. Supreme Court, I wrote an opinion piece in MinnPost asking Swanson to reconsider her position.)
In the end, while the Supreme Court did not strike down ObamaCare, it did reaffirm important limits to federal power and held that the law overstepped those limits. Unfortunately for Minnesotans, our Attorney General was not willing to take a stand for those constitutional limits.
Gov. Dayton’s Childcare Unionization Executive Order
In November 2011, Dayton issued an executive order directing his administration to poll subsidized in-home day-care providers to determine whether they wanted to be represented by two labor unions. Not only was this puzzling as a matter of policy -- why would independent small businesses want to belong to a labor union? -- but it was also clearly unconstitutional. Minnesota law does not provide any mechanism for self-employed small business owners to form or join a labor union, and any change of that law would need to pass through the legislature.
A group of day-care providers immediately challenged the executive order, and instead of standing up for the Minnesota Constitution by joining that challenge, the Attorney General’s office defended Gov. Dayton’s executive order in court. (Personal disclosure: In the lawsuit, I represented a group of 13 day-care parents, filing a brief in support of the challenge to the executive order).
Ultimately, the Ramsey County district court judge rejected Swanson’s arguments and ruled against Gov. Dayton, holding that the executive order unconstitutionally infringed on the power of the legislative branch. Dayton declined to appeal this ruling.
2012 Minnesota constitutional amendment cases
The Minnesota Constitution clearly grants the current legislature the power to “propose amendments” and requires that any “[p]roposed amendments shall be . . . submitted to the people.” Since at least the 1890s, the Minnesota Supreme Court has read this power very broadly to mean that the legislature can set the “form and manner” of a proposed ballot question. Never once have the Minnesota courts prevented the legislature from placing a constitutional amendment on the ballot.
But in 2012, two cases challenged this constitutional authority, and in both cases, the Attorney General made the wrong call. In the first case, several groups and individuals opposed to the Photo ID amendment filed suit against Secretary of State Mark Ritchie keep that amendment off the ballot. But Ritchie and Swanson declined to defend the right of Minnesotans to even vote on the Photo ID amendment. Instead, the legislature had to hire private attorneys to protect that right.
In the second case, Ritchie (with the approval of the Attorney General’s office), re-wrote the ballot titles of the two proposed constitutional amendments (see here and here), even though the legislature had exercised its power to set the “form and manner” of the ballot question by writing its own ballot titles. Not only did Swanson’s office approve this power grab by Ritchie, it defended his actions before the Minnesota Supreme Court.
In both cases, the Minnesota Supreme Court ruled in favor of the legislature’s power, as set out in the Minnesota Constitution. It rejected the challenge attempting to throw the Photo ID amendment off the ballot, and it rejected Ritchie’s effort to substitute his own ballot titles for those chosen by the legislature.
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In each of these cases, when faced with a tough choice, Attorney General Lori Swanson and her office sided with her party instead of standing for the legal and constitutional rights of all Minnesotans. Fortunately, in each case, others stepped up where the Attorney General failed. But Minnesota would have been better served with an Attorney General that did their job, and placed service of the law and the people ahead of service to their own political party.
That is why, after more than 40 years of one-party rule in the Attorney General’s office, it is time for a change. And there is no time to waste in finding strong candidates for Attorney General (and the other constitutional offices), because Minnesota’s restrictive campaign finance laws make it extraordinarily difficult to raise the resources needed to run a successful campaign.
In the past, Minnesota Republicans have squandered opportunities to break the DFL stranglehold on the Attorney General’s office. 2014 presents a new opportunity to bring real change for the people of Minnesota. Now is the time to begin educating Minnesotans about the importance of the Attorney General’s office and the other constitutional offices. Let’s get it right this time.