Taking Sarah To Task
It isn't often that I have to correct Sarah Janacek but I can't let Sarah's post about unallotment go without responding. Here's the first thing that I have to disagree with:
The chief distinction between Pawlenty's earlier rounds of unallotments and those he made last spring was that the spring 2009 unallotments were made during the legislative session, "before the [entire state] budget had been enacted," not when the Legislature was not in session. In so doing, Gearin wrote, "the governor crossed the line between legitimate exercise of his authority to unallot and interference with the Legislative power to make laws."
It isn't factually accurate to say that the unallotments happened while the legislature was still in session. It's true that Gov. Pawlenty announced that he'd be forced to unallot if he couldn't reach an agreement with the legislature on a budget. I know that because it totally stunned St. Paul and the entire state. I wrote about it here.
It's worth noting that Judge Gearin overstepped her bounds. Here's the relevant portion of the unallotment statute:
If the commissioner [of finance] determines that probable receipts for the general fund will be less than anticipated, and that the amount available for the remainder of the biennium will be less than needed, the commissioner shall, with the approval of the governor, and after consulting the legislative advisory commission, reduce the amount in the budget reserve account as needed to balance expenditures with revenue.
Based on the fact that we've now got a $1,200,000,000 deficit, I think it's safe to say that the Department of Revenue was right in May that the DFL's budget wouldn't balance at the end of the biennium. According to the statute, all that's needed is for the commissioner to determine "that probable receipts for the general fund will be less than...[what's] needed."
That threshold certainly was met, meaning that Gov. Pawlenty followed the letter of the law with his unallotments. The DFL's whining notwithstanding, the law is the law. The DFL can stomp their feet and hold their breath until they're purple in the face but that doesn't change the fact that Gov. Pawlenty followed the law.
In talking with a number of Capitol insiders since Judge Gearin's ruling, I'm convinced that another court will strike down Judge Gearin's ruling.
Another thing that should be pointed out is Judge Gearin's scolding Gov. Pawlenty for allegedly not negotiating in good faith but then saying nothing about the DFL leadership's take-it-or-leave-it negotiating habits. I'm fine with both sides playing hardball, especially on such an important matter.
Judge Gearin's criticism of Gov. Pawlenty and her not criticizing the DFL forces me to question Judge Gearin's impartiality.
This isn't an argument that the unallotment statute is flawless. I'm just arguming that Gov. Pawlenty followed the law as it's currently written. That's the only option Gov. Pawlenty had in this situation.
To be fair to Sarah, though, she's right about this:
But for Pawlenty and the Republicans, and the state Constitution and the courts, the governor is the governor. If he doesn't want to raise taxes (or fees), he doesn't have to. He may veto or sign bills. The separation of power doesn't prescribe "compromise" on the core issue of raising taxes. The fact that Pawlenty has a constitutionally granted final say has driven the Democrats nuts.
Let's play this out. Assume that others aggrieved by unallotments also sue and get temporary injunctions. All hell's going to break loose.
Once those TROs expire, if they aren't overturned, Gov. Pawlenty can unallot. If the TRO expired tomorrow, Gov. Pawlenty could unallot immediately, not because it's during the right time period but because of the deficit we're currently facing.
I wrote here that this is tricky campaigning for the DFL, especially gubernatorial candidates like Speaker Kelliher. I've talked with some loyal readers of LFR who work at the Capitol. Their consensus is that Speaker Kelliher privately wants this to disappear, even though she's publicly saying that Judge Gearin's ruling is a great thing for Minnesotans.
Comments welcome at LFR.
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