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Time to go tieless

This post consists of my reactions, reflections, and musings (extended navel gazing) on the tied House. Be warned: I was appalled when I saw the word count after merrily typing away. This is not a SALT post.

An odd number would be nice

The 2024 election resulted in a tied House of Representatives, 67 DFL and 67 GOP members. This was the second time that has happened in the history of the state (at least far as I’m aware). On February 5th, the two caucuses finally resolved how they would organize and run the House under the circumstances, adopting what seems to me a reasonable power sharing agreement given the circumstances. That’s about a 3-week delay from the scheduled start of session, punctuated by two election contests and two lawsuits over parliamentary procedures (normally not a matter for the judiciary). In short, it was a messy, complicated distraction from the real purpose of the legislature – enacting laws and a state budget.

I was a House staffer for the first tied House in 1979, including staffing the committee that negotiated the power sharing agreement. In part because of that experience, they brought me back as a very part time consultant for the beginning of 2024-25 process. (My services ended mid-January and candidly added little to help the process resolve itself.) In both instances, the negotiations were contentious and challenging with the most recent one more so. That was likely the case, because of changes in the political culture of the legislature and politics generally. I explore the why in more depth at the end of the post.

Senate had few problems with its tie

The death of Senator Dziedzic in late December resulted in the Senate also being tied. Senators were able to expeditiously negotiate a power sharing agreement before the session started and it worked well (more or less) until a special election broke the tie. Does that mean Senate is controlled by or populated by members who are more reasonable and able to compromise across the aisle? Of course not. It simply reflects the reality that because the Senate has an odd number of members, any ties are short term matters and there is little advantage or long-term leverage to be gained by gumming up the legislative works. When the stakes are unimportant, compromise is easy. The 1971 struggle for Senate control – similar in some ways to the 2025 conflict in the House – also resolved itself more quickly and with fewer trips to the Supreme Court, again probably because an odd number of members meant it was a short term deal. There was no potential for a 2-year stalemate.

By contrast in the House, Curtis Johnson’s withdrawal/resignation gave the GOP a likely temporary majority that they could parlay into permanent control if the House organized. If/when the tie was restored, the DFL would be powerless to reverse decisions the GOP made during its temporary majority. But even absent that, a power sharing agreement covering a short period during the relatively inconsequential early part of the session is much easier to work out than one covering a full biennial session.

Where to go from here?

The process of negotiating a power sharing agreement is gut-wrenching, at least for the members and staff involved, and is at best a distraction from the legislature’s mission. Parliamentary bodies, especially deeply divided partisan ones, do not function well without majority control. So, it would be nice to avoid ties as much as possible. It might not be a big deal if they only come along every 50 years. In that case, they may just be something to live with, especially if there is no easy fix.

Unfortunately, there isn’t an easy fix and I expect that tied houses will become more common, unless our politics reverse their trend (always possible).  I’ll explain why I think both of those propositions are true and suggest a solution that makes sense to me but has a political feasibility rating of less than 5%.

No easy fix

As the title of the post suggests, if the House had an odd number of members, the problem would be solved. That won’t be easy to accomplish.

This is the 94th legislative session. Based on my calculations using data from the Legislative Reference Library’s website, for 42 of those sessions the House had an odd number of members. For example, for the 1918 through 1960 elections, there were 131 House members and for the 1962 through 1970 elections, 135.

That convenient arrangement was enabled by the legislature ignoring the requirements of the Minnesota Constitution in prescribing the number of members and in drawing House district boundaries. The constitution requires legislative districts to be equally apportioned based on population and that no house district “be divided in forming a senate district.”  In the current version of the constitution of those provisions are in article IV, sections 1 and 2. Versions of these provisions have been in the constitution since the very beginning. See Constitution of the State of Minnesota, art. 4 §§ 2 and 24 (August 29, 1857).

[Sidebar: a 1914 Minnesota Supreme Court decision gave the legislature wide discretion in satisfying the equal apportionment requirement, so long as it’s not arbitrary. The court cited a Wisconsin case for the proposition that an apportionment is invalid if “it cannot be possibly justified by the exercise of any judgment or discretion, and that evinces an intention on the part of the Legislature to utterly ignore and disregard the rule of the Constitution in order to promote some other object than a constitutional apportionment * * *.”  Does avoiding the possibility of a tied house satisfy that standard? That would not seem to me to be the case but maybe. Federal intervention makes the issue irrelevant now unlike prior to the 1960s.]

The legislature must have seen the problems with the possibility of ties with an even number of members. It ignored the equal population requirement and put three house districts in one senate district (in Minneapolis) during the 1918-1970 period. As an aside, equal apportionment by population was not something the legislature considered important apparently. It skipped redrawing boundaries after many censuses. As a result, for long periods of time the Minnesota legislature was very malapportioned with rural areas overrepresented and urban areas underrepresented.

This ended when SCOTUS required state legislative districts to be apportioned based on one-person-one-vote after Baker v. Carr and Reynolds v. Sims. That resulted in a federal district court redrawing Minnesota’s legislative district boundaries in 1971-72 when the legislature failed to do so. The district court recognized the problem with an even number of members (or was respecting prior legislatures’ decisions in that regard) and also concluded the legislature was too big. Its solution was a 35-member Senate and 105-member House (i.e., three house districts for each senate district). Not surprisingly, SCOTUS concluded the district court overstepped its authority to prevent dilution of voting rights in doing so. That authority did not allow changing the size of the legislature. Sixty-Seventh Minnesota State Senate v. Beens. On remand, the court’s new plan kept the 67-member Senate and reduced the House by one to 134 members. That configuration has continued, despite many proposals to reduce the size of the legislature and some to convert it to a unicameral body (with an odd number of members).

In short, converting the House to an odd number of members requires either of two things:

  1. Amending the constitution to eliminate the requirement that house districts must be fully contained in senate districts.
  2. Putting three house districts in each senate district by enacting legislation.

Neither fix is easy. Amending the constitution requires approval by the voters and there is some attraction to the simplicity of containing house districts entirely in senate districts. Option #2 requires reducing the size of the senate and/or increasing the size of the House (or something bold like the federal district court ordered in Beens). Not easy.

Other partial fixes have been proposed. For example, former Representative Irv Anderson, a central figure in the 1979 tie, introduced a bill that made the caucus leader of the governor’s party Speaker. This bill passed out of committee but was never taken up by the House. Other states provide for selecting a speaker by chance (e.g., flip of a coin). Either approach is contrary to the constitution’s requirement that the House elect its presiding officer and that it has the exclusive constitutional authority to determine its rules (i.e., not a prior legislature and governor in enacting a statute). So, it’s highly likely they’re unconstitutional.

In short, there is no easy fix to this problem, at least, as far as I can tell.

Ties are more likely now

So far, ties have happened twice in 94 chances or about 2% of the time. Maybe we can just accept the reality they will periodically happen and hope that it doesn’t or that it doesn’t coincide with election contests (a big complicating factor in 2025 and somewhat in 1979)? Unfortunately, that’s likely wishful thinking for two reasons.

Of those 94 general elections, only 52 had a House with an even number of members, thanks to past ignoring of constitutional requirements. The actual percentage of times a tie has occurred is twice as high (i.e., 4% versus 2%). But that’s still a relatively low probability of occurring, if it’s an accurate measure of actual probability. It’s not.

The political complexion of the state has changed, especially since the 2010 election and even more so since the 2016 election (Trump is a polarizing figure). This is a well told national story. Politics are much more polarized on a partisan basis for a variety of reasons. An important one that affects Minnesota legislative margins is that people have sorted themselves geographically into areas populated by people of similar political persuasions. (I recommend reading The Big Sort if you haven’t and are interested in that sort of thing, as I am.) And, I think, people who live in those areas have tended to align their political views with the dominant views of their neighbors – becoming more Republican in rural areas and more DFL in urban/suburban areas. This recent NBER paper suggests that, along with generational change, explains the increased sorting. Whatever the cause, geographic political sorting is reality. One result is that there are fewer swing House seats. Formerly wave elections have become more like ripples. That also means partisan control of the house is typically in play in more elections and the margins of control are smaller. That makes ties more likely.

The table illustrates that point by showing the partisan margin in the House for general elections since 1950 (the last point conveniently available on LRL’s website). From the 1950 through 1970 legislative elections were nonpartisan, but legislators still identified with and caucused by party (conservative for Republicans and liberal for the DFL). I broke the periods in 10 elections (20 years), except the period from 2010 onward (7 elections).

Partisan margin
 ElectionsAverage# <10# <6
1950-682522
1970-882644
1990-20082053
2010-241033
Source: LRL Party Control of House

The average margin has declined by more than 50%. The number of very close margins (i.e., where changing the result in 3 or fewer races would change control) has not changed as much.  Each era has had a few close margins (6 or less). The experience with the 2020, 2022, and 2024 elections, all with very close margines, suggests we could be in for more ties than suggested by the overall 4% probability.

Of course, political winds can quickly change directions. However, I think it is very hard to reverse the effects of sorting and partisan alignment. Witness how long it took for the Republicans to take over political dominance in the South, even though most sanguine observers (e.g., LBJ) were sure that was going to happen after the passage of the civil rights laws. Alliances to political parties tend to be pretty durable.

My judgment may be infected by recency bias, given the last few elections. But I still think it’s reasonable to assume that the probability of a tie is much higher than 20, 30, or 50 years ago.

It’s worth noting that after the 1956 election, the liberals had 2-seat majority with one seat vacant because of an election contest. It was ultimately won by a conservative yielding a 1-vote majority. The liberals also had a 1-vote majority after the 1954 election. It’s certainly possible that absent the odd number of members then, another tie would have resulted in the 1950s.

My fix

As suggested above, the only reasonable fix short of a constitutional amendment is to change the size of the legislature so that there are three house districts in each senate district. (The size of the legislature is specified by law – in statute – so a legislative change is all that is required.) Sleight of hand fixes – selecting the speaker by chance or based on the governor’s political party – are only partial fixes and almost surely unconstitutional. Of course, unconstitutional statutes work fine if everyone assumes they’re constitutional or is willing to accept them despite their unconstitutionality. I think that would be unlikely in this case. And designating a speaker is only a part (yes, a major part) of the issue. So that leaves us with a fix of getting to an odd number of members. The only realistic way of doing that is with three house seats per senate district.

Lori Sturdevant, a retired but still part-time STRIB columnist, wrote a column that proposed increasing the size of the House, while holding the Senate’s number of members constant. So, the legislature would increase from 201 members to 268 members (67 senators and 201 house members).  (Disclosure: I know and respect Lori a lot. While I was working, I talked with her many times about fiscal, tax, and other issues and found her intelligent and thoughtful. This is an instance where reasonable people disagree.)

I do not think increasing the size of the legislature (specifically the House) is a good idea for a variety of reasons. A few of them:

  • At the most mundane level, there are a host of logistical and practical concerns – physical floor and office space for more members and staff, the associated costs, etc.
  • Decision making in larger parliamentary bodies is more difficult and qualitatively different. It cedes more power to leadership and committee chairs, not a positive thing. It would require moving toward the practices like those in the U.S. House, where bills are considered under rules that specify how long debate is and exactly which amendments may be offered, also probably not a good thing.
  • Most importantly in my view, smaller districts will tend to be more homogeneous politically, safe D or R districts. Put another way, fewer of them will be swing districts. That will reenforce partisan polarization and make compromise and bipartisanship harder. There will be more ideologically extreme members and fewer centrists. That is exactly the opposite of the direction I think the legislature should move in.

My fix would be to reduce the Senate to 45 senators (a 22-senator reduction), while holding the House roughly constant at 135 (a return to 1970). That could be done after the next redistricting in 2032, so there is time to plan for it. This idea has the proverbial snowball’s chance of enactment. I know the Senate would never seriously consider reducing its size probably in any case, much less to fix a problem in the other body. So, this is just an academic exercise.

My thinking has two basic components.

Larger legislative districts are generally better (within reasonable limits, of course). My core thought here is that with larger districts, it will be possible to draw more heterogeneous political districts, swing districts that can elect either a DFLer or a Republican. That might (along with other fixes like jungle primaries or ranked choice voting) help reduce polarization, one of the bigger problems that has developed in recent legislative sessions IMO.  In the abstract (e.g., at a constitutional convention where incumbent legislators’ preferences were irrelevant), I would favor something like the Beens court’s proposal: 105 house members and 35 senators. That, of course, picks a fight with both the house and senate, since both would experience a dramatic size reduction.

A principal objection to larger districts has always been that the larger geographic sizes of sparsely populated rural districts would make it too difficult for members to interact with the constituents. The driving distance to meetings and events is too long. Improvements in communications (social media, texting, Zoom and Teams meetings, etc.) now significantly mitigate that concern.

It’s easiest to justify reducing the Senate’s size. By most lights, the Minnesota Senate is large as state senates go. I’m not generally a believer in using state rankings or comparisons as a policy making tool, but they can provide useful frames of reference as a basic test of feasibility or whether a policy lies within a normal range of alternatives. In this case, they suggest that our senate is bigger than it needs to be.

Ballotpedia has a convenient table tool that allows you to rank state legislative bodies on various size dimensions:

  • The Minnesota Senate with 67 members is larger than any other state senate. Only three other state senates have more than 50 members: New York (63), Illinois (59), and Georgia (56).  The Minnesota House is the 39th largest lower legislative body by comparison.
  • A better size comparison is population per senator, since that reflects how many constituents a member must serve and communicate with.  Sparsely populated states, like North Dakota and Wyoming, rank lowest by this metric. Based on the 2020 census, Minnesota senate districts had a population of 85,000, almost half the national average of 168,000 and a rank of 20th. So, it is well above average under a population metric as well.
  • For a 45-member Senate, the average geographic size of each senate district would increase from about 1,200 square miles to 1,770 square miles. That is well within the average range by state. Minnesota now ranks 27th among all states. Its ranking would rise to 14th, just above Wisconsin and below Missouri with a 43-member Senate. I calculated these numbers using the Census Bureau’s measure of state area. Of course, the real focus will be on a handful of very large rural districts in the western areas of the state. Their increases in size will be more than proportional. But the districts will still be much smaller than many legislators experience in places like Alaska, Texas, Nevada, etc. Geographic size is not a real impediment.

Afterthoughts

The rest of the post are some of my random thoughts about why it took so long to come to a power sharing agreement, why the delay wasn’t that big a deal, and why 2025 took so much longer than 1979.

Cheap Shots

Media commentators have pilloried both caucuses over their inability to settle their differences and get organized. See, e.g., here and here for STRIB columns. Given the reality of the circumstances, I feel compelled to mount a modest defense of both sides’ inability to easily resolve this challenging situation. Outsiders, like newspaper opinion writers, typically do not understand the dynamics and stakes involved, in my view.

The following is an unorganized list of some reasons why I think it was so hard for legislative leaders to come to an agreement and why their failure to do so more quickly was not a catastrophic failure or legislative malpractice (i.e., the criticism tends to be uninformed cheap shots).

Stakes were high. Those who have not been members of, worked for, or hung around the legislature understand who controls the House or Senate – even temporarily if it allows entrenching a regime and rules that a restored tie cannot reverse – is very important. Control determines:

  • Procedural rules – these can be key in a myriad of ways.
  • Committee structure, membership, and chairs – both standing and conference committees
  • Agenda setting – what is taken up in committees and on the floor and when. This is politically important since it determines a caucus’s ability to get valuable public attention for your political issues and to make your opponents take bad political votes. All this is true, even though you don’t have a sufficient majority to pass bills.
  • Staffing levels and personnel decisions
  • A myriad of appointments by the speaker
  • Many lesser management and administrative decisions that still may be important to members, staff, and supporters politically

Thus, it is no surprise that when they saw the possibility to use a temporary advantage (a vacant seat) to gain permanent control, the GOP leadership decided to exploit it and to play it out to the maximum extent. (I’ll discuss below why I think the 1979 GOP caucus refrained from doing so as contrasted with the 2025 group.) Similarly, the DFL response to use every available tool (including one not previously used in Minnesota, quorum denial) to prevent that result was similarly natural and to be expected. It’s hard for me to fault either side under the circumstances, much as the fight seemed distasteful or counterproductive. Outsiders typically don’t appreciate the stakes. Thus, the ferocious fighting by both sides probably seemed inexplicable or unreasonable. They weren’t fighting over hot button policy issues that the general public is interested in or accustomed to debates about (e.g., abortion, guns, and taxes), just seeming administrative and process issues. That masks the fact that the stakes were high.

Polarization is the enemy of compromise. By most accounts, the intensity of partisanship has increased significantly in recent years. Politically active folks care a lot. Even more crucially, many tend to think that the other side does not just have different policy views but is likely to do really bad stuff if they attain power. This quasi-demonization of the other side raises the stakes on another dimension. To be clear, in my experience most elected officials do not think this way, but party and issue activists (the parties’ bases) do and in various ways that filters up to legislators. However, the strength of the bad feelings by legislators on both sides regarding the end of the 2024 session took me by surprise. Those feelings were a factor in the negotiations, I suspect.

Many players and stakeholders complicate matters. This is pure speculation on my part and follows on the previous point: I suspect that influence by outside groups made it harder to compromise. I have a very conservative Republican sibling who lives in a distant state and is plugged into multiple national conservative groups of the far-right flavor. She told me that one of those groups was touting their role in helping with the conflict over control of the Minnesota House. (I don’t remember the group’s name or what exactly what it said it was doing. I memory holed it.) The claims may well have been mere puffery, but my suspicion is that they reflect some element of pressure that legislators – perhaps on both sides – felt.

New negotiating terrain. To state the obvious, none of the players have ever gone through a similar negotiation. Legislative negotiations over state budgets and policy changes develop along familiar patterns and rhythms, even as each is unique in some way, and experience with that process makes resolving them easier. Since this was totally new (no current member was around in 1978-79), it took them a while to figure out the dynamics, I’m sure.

Uncertainty was high. Neither side was certain about how much leverage they had. Leverage, in this context, had at least two components – legal and PR. The legal issues were murky – would the courts even be willing to weigh in and if so, how would they resolve these previously untested legal issues? At the same time, a crucial question for a politician/elected official is how the public will react to the likely messaging – “not showing up for work” versus throwing someone who the courts said won out of office or a putative permanent “power grab.” That was probably even less clear, unlike policy issues that have been polled, aired in campaigns, and so on. It was certainly possible (likely) that the vast majority of the public (unlike capitol insiders and core political activists) was not even paying attention. Uncertainty about the relative strength of your and your opponent’s positions makes reaching a deal much more difficult.

The combination of factors (high stakes, uncertainty, inexperience with the situation, etc.) encouraged both sides to dither and delay – to assess the other side’s intentions, get more information, etc. It probably was inevitable that they had to resort to the court for clarification of the legal uncertainty. (The district court’s slowness in issuing a decision in Representative Tabke’s case did not help matters. That district was the GOP’s only reasonable shot at a true majority.) Once the court clarified the meaning of quorum and both sides had enough time to assess the resulting effects, a resolution was reached. I’m guessing that over time they also got more comfortable judging the PR effects, reducing that uncertainty as well.

Loss of early session time is no biggie. Let’s be frank, much early session activity consists of time fillers and nice things to do, rather than critical legislative work. To be sure, early session background briefings by agency and legislative staff serve an important educational function, but they have little effect on the key decision makers, veteran legislators, and actual legislative output. Moreover, the practice has grown, especially early in the session, of conducting pro forma hearings of bills that no one expects to be seriously considered for passage. It’s a way to make members and the underlying interest groups happy or to give members an opportunity to sling political rhetoric around hearing rooms and sometimes on the House floor. (Don’t ask me how many hearings I sat through on repealing the estate tax. There were too many for me to remember.) This is not to say that those hearings and debates are of no value, but the loss in my mind is not great. At least, not enough to get all worked up about, as the columnists have.

In short, my assessment is that the criticisms of the legislators on both sides are overwrought, if not cheap shots. Their behavior is what a knowledgeable person would expect and it did not come at any great cost in terms of the ability to complete a successful legislative session.

Differences from 1978-79

The negotiations in the one other tied House were also contentious and drawn out, but they were tamer and were resolved more quickly, losing only a week of session time or so. It’s a little remembered fact that the 1979 GOP could have done something similar to what the 2025 GOP caucus did. At the start of the 1979 session, one DFL member was absent Dick Kostohryz was in the hospital recovering from a heart attack. With no remote voting in those days, the GOP could have elected a speaker, adopted rules, and controlled the House likely for the full session. Unlike in 2025, they chose not to do so. See the first days of 1979 House Journal (with Kostohryz absent, the IR caucus had a 67-66 majority but passed on electing a speaker and organizing the House). The obvious question is why or what caused the different outcomes. As someone who directly experienced both situations, I have theories or hypotheses about the why.

Less favorable legal issue. Kostohryz’s seat was not vacant. That foreclosed the option of claiming that 67 members constituted a quorum and the countermove used by the 2025 R caucus of asserting they had a quorum and proceeding to organize the House. I don’t remember quorum denial being explicitly discussed in the 1978-79 negotiations, but I do remember Irv Anderson raising the possibility of having Kostohryz vote by phone, which the chief clerk rejected. Knowing Irv Anderson as well as I did, I’m sure he would have used quorum denial if necessary, whether he could have gotten all of his caucus to go along might be more doubtful. In any case, the Republicans agreed not to press their temporary advantage, so it wasn’t an issue. They could only have forced the DFL to use quorum denial until Kostohryz recovered sufficiently to attend sessions (15 days, as it turned out). That would have been much less pressure than in 2025 – originally thought to be three or so weeks and later two months. Obviously, those legal and practical differences could have been decisive.

Different legislative and political culture. My initial reflexive instinct was to attribute the different approaches to changes in the culture of the legislature and politics in general.

The legislative culture of late 1970s was more collegial and somewhat less partisan than now. There were many more swing districts. The IRs flipped 32 seats in the 1978 election. Now that would be unthinkable. The caucuses were more heterogeneous, philosophically and geographically. There were conservative pro-life DFLers and moderate pro-choice IRs.  Both parties had representatives in all areas of the state – center cities, suburbs, regional centers, and rural areas. The election that mattered in most districts was the general election, not the primary like now. That meant that members tended to be more moderate politically. In general, I think the perception was that many voters were less tolerant of pure partisanship.

This state of affairs contributed to a less polarized and more cooperative environment. A case could also be made that the two parties’ aggressiveness and risk-taking willingness have reversed. The 1979 DFLers led by Irv Anderson were more partisan and combative than the IRs. The minority IR caucuses in the 1970s were occasionally criticized as having too much of a lap dog, go-along character. My impression now is that the reverse might be the case now with the GOP being the more combative caucus. Or not. I’m not close enough to judge intelligently.

Cause of the temporary majority. Taking advantage of a member’s heart attack to seize control would have ugly optics and be counter to the then prevailing more genteel political culture (especially for the Rod Searle led IR caucus). That would not be the case for a party that fielded a constitutionally ineligible candidate as in 2025, which implies a degree of culpability. It’s easy to overstate a caucus’s responsibility for decisions that are made by local party groups and voters, I suppose. But the relevant partisans, writ large, are responsible.

Public versus private negotiations. The 1979 power sharing agreement negotiations occurred almost exclusively in public meetings over two months. By contrast, the 2025 negotiations were conducted exclusively in private. I have always thought private legislative negotiations are more efficient and often lead to better outcomes – obviously at the expense of transparency and accountability for the decision-making rationale. Because of concerns about reactions by supporters, opponents, lobbyists, and the public, public negotiations crimp candid conversations that enable finding common ground and better understanding the other parties’ views. If that’s true, it should have helped move the 2025 discussions to a faster conclusion. It didn’t appear to do that (of course, you can’t truly test a counterfactual like that). It’s possible that private negotiations had the opposite effect because there was less public exposure to the parties’ respective positions, denying them the opportunity to gauge and test the political and PR effects of their strategies and positions. I don’t know but certainly a plausible hypothesis.

Overarching goals for the session. The strategic and tactical positions of the 1979 and 2024 House GOP caucuses were quite different. The 1979 group had just ridden a wave election to a tied House and their candidate for governor had won. He had a clear agenda for the session: enacting an income tax cut and instituting indexing, among other policy issues. Their overarching goal was to prevail by enacting those changes. That required the cooperation of DFLers in the House because of the tie and in Senate, which was overwhelmingly DFL. (Thanks to the unintentional historical quirk of not having staggered terms, the Senate was not on the ballot in 1978.) Alienating DFLers on issues of control could prove counterproductive – they might have won the battle (House control) and lost the more important war (enacting the income tax and other changes). As it was, the consensus was that they lost the battle, that is, the power sharing agreement was tilted toward the DFL, but they won the policy war, since the legislature enacted much of Governor Quie’s policy agenda.  

By contrast the 2025 GOP caucus is in a much different position. They flipped only three seats and face a DFL governor and Senate. Realistic goals are to (1) block changes that would further cement the 2023 session changes, such as tax increases to fund them and fixing flaws in the new programs, and (2) making the case for turning out the Dems in the 2026 election (i.e., gaining a true House majority and electing a Republican as governor) using the publicity of hearings and floor debates and by forcing DFLers to take “bad votes” against the GOP’s agenda items. Those goals require little cooperation by the Dems because the tied House gives the GOP a veto over any legislative changes and creating PR and compelling bad votes can be pretty much done unilaterally (House control makes it easier obviously).

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Speech and debate immunity case

Last week, the Minnesota Supreme Court rejected Representative John Lesch’s appeal seeking to dismiss a defamation suit against him on grounds it was barred by his constitutional and statutory immunity as a legislator, a contention both the district court and court of appeals had rejected. Olson v. Lesch¸ Minn. Sup. Ct. slip op. A18-1694 (May 27, 2020).

This is the first Minnesota Supreme Court opinion that addresses which legislators’ actions are protected by the Minnesota Constitution’s speech and debate clause, as well as the statute providing legislator with immunity. For that reason, it is important, but the substance of the decision is unexceptional; it came out about as I expected.

The case stemmed from a “personal and confidential” letter that Lesch wrote to Melvin Carter, the then mayor-elect of St. Paul, the city in which Lesch’s legislative district is located. The letter initially referred to Lesch’s role as a longstanding House member, but mainly addressed Carter’s announced intent to appoint Stephanie Olson as city attorney and Lesch’s concerns about her qualifications or lack of them. In doing so, she alleges he defamed her.

Because there were no Minnesota cases addressing what actions by legislators constitute protected speech and debate, the court looked to federal case law. It characterized that case law as “helpful” – not exactly providing clear guidance as to how much one can rely on it in interpreting the Minnesota clause. Id. p. 8. (There are a fair number of federal cases – especially lower court cases – so an expression that the two constitutional provisions are effectively identical in their scope and intended protection would have provided some more guidance and certainty.) The court’s opinion cites the U.S. Supreme Court case holdings that extend protection of the clause beyond classic speech and debate to include dealing with business before the legislature but that also limit immunity to matters with the “legitimate legislative sphere.” I have always considered that phrase and federal courts’ application of it to be the best guide to the scope of the Minnesota clause’s protections.

The court concluded that Lesch letter, essentially delving into local government personnel decisions, did not fall within the legitimate legislative sphere, at least given its context. In the court’s view (helped along by the letter’s language), it was more personal in nature than being done to pursue legislative business. Given the U.S. Supreme Court case holding that a defamation case against former Wisconsin Senator Proxmire for a claim arising out of one of his “golden fleece” awards could proceed, that result was unsurprising. Proxmire’s “awards” were announced at press conferences (not exactly “legislating”) but their underlying theme or substance – identifying and investigating wasteful government spending – falls within what most would consider a core legislative responsibility. But the Court concluded that the clause did not confer defamation immunity for speech outside of the traditional legislative process (in the chamber or committee meetings, e.g.) and an individual member’s press conference did not qualify as an “informing function” of the legislature (e.g., as a committee report would or a committee press release related to its actions might).  A likely subtext was that the Court perceived Proxmire’s press conferences more as political in nature than legitimate legislative activity. Hutchinson v. Proxmire, 443 U.S. 111 (1979).

The court rejected Lesch’s contention that he was engaged in “oversight” in sending the letter – in particular, I guess, determining if the mayor-elect was complying with Minnesota data practices laws (one of Lesch’s primary areas of legislative responsibility based on his committee role).  The court appeared to reach that conclusion based on both the language of the letter and the absence of any official authorization for or relationship to Lesch’s actions. My instinct is that it was mainly the letter’s language and its strong implication it was “personal” in nature.

The case is, however, legally important in the clarifying that the statutory legislative immunity under section 540.13 is broader than the constitutional immunity. That statute confers civil immunity on legislators for actions done “in pursuance of their official duties.” For example, most would consider constituent services in securing government services to be an official duty of a legislator, but federal case law typically holds it is not speech and debate under the constitution. Unfortunately, the opinion (because the facts of the case did not require it in the court’s view) does not do much to elucidate exactly how much farther the statute extends than the constitutional provision or in what ways.

In the court’s words, “The statute immunizes any act done by a legislator that helps that legislator perform her legislative function.” Lesch p. 14. The court, however, concluded that whatever Lesch was doing in writing the letter it was not related to a “legislative function,” which is one of the statute’s requirements. It reached that conclusion based on the letter’s language and substance which explicitly characterized itself as “personal” and failed to tie its purpose to any legislative function. Indeed, in the court’s view, the letter’s language makes it clear that Lesch had no intent to use information elicited “for any legislative duty.” Id. p. 16. Justice Lillehaug in a concurrence considered this to be a fact question to be resolved in lower court and the court’s pronouncements dicta. Id. p. C-2 – C-4.  The court rejects Lillehaug’s contention in a footnote as being inconsistent with the terms of the letter. Id. p. 15 fn. 6.

My reactions

Speech and debate clause. The court’s holding on the speech and debate clause is about what I expected based on Proxmire. Lesch’s case seems weaker than Proxmire’s was, at least to me. In Lesch, the object at which the action was directed (a personnel decision by another level of government) is not a traditional subject for state legislative action (unlike Congress overseeing a federal grant in Proxmire), creating an obvious challenge for Lesch to overcome in arguing his letter fell within the sphere of legislative activity.  He had to strain to come up with a legislative connection for his actions, relying on a generalized notion of legislative oversight. The court didn’t buy it.

Although the case appears to confirm the obvious, it provides a statement that Minnesota will follow black letter federal case law in applying the Minnesota speech and debate clause. I would have found that useful during my tenure at House.

For the 35+ years I served as counsel to the House of Representatives, I was occasionally pressed into service as an amateur litigator. Many of the cases involved asserting legislative immunity under the Speech and Debate clause to stop litigants’ efforts to compel House members or staff to provide nonpublic documents or compel testimony, almost always in some way related to enacted legislation or official House actions. Thus, there was rarely any real question whether the matter was within the legitimate legislative sphere.

In most cases, I was able to convince the opposing lawyers that the speech and debate clause blocked their efforts. That was typically accomplished by pointing to the text of the state constitution, showing how it was nearly identical to the federal provision, and, then, citing federal cases applying it in a broad and absolute way, so long as the matter was within “the legitimate legislative sphere.”  The latter – unlike Lesch – was true because the lawsuits I dealt with all related to enactment, application, interpretation, or validity of legislation.

Lawyers in a nontrivial number of cases (maybe 10 over my career) refused to recognize that Minnesota would follow federal case law and would not withdraw their subpoenas. That required filing motions to suppress discovery or to quash the subpoenas, which were always granted in some manner. Doing so, however, was a major source of distraction and some anxiety because I rarely ventured into a courtroom and had only a passing acquaintance with the rules of civil procedure. Being able to point to a specific Minnesota case, like Lesch, probably would have convinced more of the lawyers. Unfortunately, you can never convince everyone; some wild hair lawyer will become convinced that some angle makes his or her case different. But the holding in Lesch will be useful, even if the result was totally predictable.

Personal note: in two cases I handled, trial courts refused to quash subpoenas and required depositions to be taken with protective orders that prohibited any questions related to matters within the legitimate legislative sphere. Such questions, of course, were the only matters relevant to the subject matter of the litigation (at least as far as I could see), but discovery is generally subject to only the very loosest of relevance limits. The resulting depositions were at best silly and a waste of time for all concerned – an endless of stream of objections to nearly all questions that could have led to production of admissible evidence of relevance to the lawsuit. One of the two cases was a deposition of the then Speaker of the House, Martin Sabo. (The case challenged the validity of the law financing the Metrodome.) I am sure the opposing lawyer’s primary goal was to make a point to his client and/or to harass government officials, behavior that the court effectively abetted. The purpose of the clause is to provide protection from that sort of nonsense.  But as a young, inexperienced lawyer (I was 27 years old), I provided incompetent representation by not appealing –somewhat daunting because it would have gone directly to Supreme Court in those days with uncertain prospects for success (why should the court intervene in a discovery matter where the trial court had issued a protective order?). It was easier to just waste a few hours in a meaningless deposition – calculations that both the opposing lawyer and the trial court I’m sure made. But it made a mockery of the supposed protections the clause is intended to provide, in my judgmdent. It was one of a handful of decisions that I made over the course of my career than I have repeatedly second-guessed with more than a little regret.

Immunity statute. I have two basic reactions to the courts’ opinion on the statutory issue.  On the one hand, the court’s description of the statute’s breath seems overly broad to me – anything that “helps” a legislator perform her functions could cover a lot of actions, some of which I doubt the legislators who voted on the statute (more than a century ago) likely thought they were immunizing. On the other hand, I think Lillehaug has the better argument, if that broad scope is what applies. A legislator should be allowed some leeway to develop facts that show what she or he was doing was intended to help perform an accepted legislative duty. It is unclear to me how you can impute purely non-legislative motivations based solely on letter’s contents. (A cynical way to view the opinion is that Lesch simply forgot to include some boilerplate statement to that effect – he may have thought he was doing that in referring to data practices?)

For example, I could imagine making an argument something like this: Minnesota’s fiscal arrangements make many local governments (cities, counties, and school) dependent on state aid appropriated or powers granted by the legislature. A typical view of many legislators is that one of their key functions is to fight for their local governments in the legislative battle over how much to appropriate and, then, how to divvy up state aid (LGA, school aid, CPA or whatever). Effectively, they function as de facto lobbyists for their local governments and, in that role, they have a strong interest in good quality local government personnel or, even more important, avoiding high level local staff who would hurt the reputations of their local governments in the legislature. Lesch could argue that by ensuring high quality city personnel decisions or avoiding a disastrous appointment (apparently his view of the matter), he was helping to protect St. Paul’s reputation at the legislature so he better perform of the function of fighting for aid and powers for St. Paul during legislative deliberations.  (I assume that Lesch made no argument like this – although I didn’t look at his brief, the court makes no reference to it.)

The court’s expansive view of the scope of the immunity statute, it seems to me, opens up the possibility of making arguments like that and why Justice Lillehaug could persuasively argue that Lesch should be allowed to develop facts at trial why in writing the letter he was intending to act “in pursuance” of his legislative “duties.” At one level it comes down to matter of intention or motive, which seems odd. I think the court’s opinion would tend to a view that immunity is more of a legal question for the court, rather than something to submit to a jury or other fact finder. That, of course, was the actual result in the case. But the court’s formulation of a standard and focus on things that “help” a legislator carry out a legislative functions appears to contain a subjective element – why did the member engage in the action at issue? My view is that a narrower scope for the statute (closer to the legitimate legislative sphere) with its application strictly being a legal question for the court would be a better approach. If the statute is intended to provide protection for the independence of legislators, a test that depends upon resolution of factual disputes (going to trial?) would seem to provide thin protection. As Lillehaug suggests anything that depends upon the legislator’s motivation or intentions probably will devolve into factual disputes in borderline case. Robust immunity should allow a member to easily avoid defending lawsuits for carrying out their duties. My instinct (w/o spending a lot of time or effort thinking about it) is that a test should make an individual legislator’s purpose or motives irrelevant and, instead, focus on the nature and character of the actions and whether they are reasonably expected to done in carrying out legislative duties. Unfettered “oversight” (Lesch’s assertion) provides special problems, since it could immunize all sorts of mucking around in Minnesota government, including some actions most or nearly all would consider to not be legislative in nature. The legislature could always clarify the statute by being more explicit about what exactly legislative “duties” means.

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