Minnesota's last-minute legislating makes a mess of things

There's a lot to dislike about a thrice-elected state constitutional officer being reduced to pleading for her office's ability to function in the middle of the night on the last day of a legislative session.

"Nothing like being stabbed in the back," DFL State Auditor Rebecca Otto tweeted at 1:33 a.m. May 18 from a Capitol hearing room, where a House-Senate conference committee had just approved a provision that would gut her office. Two minutes later, she added: "Leadership made a deal with the devil and Minnesotans lose on this one."

Most Minnesotans wouldn't find out until days later that anything was threatening the down-ballot office that's been in existence since statehood. They finally did last week only because a former state auditor — Gov. Mark Dayton — made undoing the "deal with the devil" a condition of calling a special session.

The sorry truth is that many legislators on May 18 also did not know the extent to which the state agency funding bill would undermine a 157-year-old fixture of the executive branch. They were told that the change it included was a simple matter of fairness. Since state budget cuts of 2003, 28 counties have been allowed to hire a private auditor rather than use the higher-cost state auditor's office. The new provision would give the other 59 counties the same option, they were told.

Unbeknownst to many was that the bill also repealed the state auditor's authority to conduct any county audits as of July 1. That would be a killer for Otto's 60-­member auditing division, the heart of her operation.

Otto tried to tell them. At the conference committee at 1 a.m., she jumped up, interrupted, objected, pleaded. She tried to telephone Gov. Mark Dayton, who had vetoed a similar measure four years ago, to obtain a fresh veto threat. She was advised the governor was asleep. Later that day, she ran down the Senate co-chair of the conference committee, Sen. Tom Saxhaug, on a Capitol staircase, to no avail. She issued a flurry of tweets all day and coached a few legislative allies willing to raise objections in floor debates.

It was too late. The Legislature's Last Day Express was rolling fast — too fast.

Last week, as differences between legislators and the governor winnowed down to the fate of the auditor's office, House GOP Speaker Kurt Daudt conceded that the July 1 repeal of its auditing authority was "a drafting error." That much would be corrected, he said; at this writing, the dispute over whether county audits can be privatized is unresolved.

What's wrong with this picture? For starters, there's one branch of government trying to put part of another branch out of business. Counties unhappy with the auditor's fiscal judgments and/or legal compliance spotlight are being allowed an end run to the Legislature. Legislators are failing to see the value of keeping auditing accountable only to the voters, or that counties aren't akin to privately audited cities — they are administrative arms of state government.

There's suspicion that political payback was in play. Otto was the only member of the state's Executive Council who voted against nonferrous mineral leases on state lands in 2013, to the irritation of Iron Range legislators.

Former GOP Gov. Arne Carlson — another former state auditor — went so far as to call the move against Otto "an effort to intimidate an elected official," to which Senate Majority Leader Tom Bakk, DFL-Cook, responded, "Absolutely not."

What bugs me most was the reckless speed of that final-day lawmaking train, and the overload of major legislation it carried.

State lawmaking is an admirably deliberate and transparent exercise until conference committee season begins. Then a few top leaders go into a room with the governor and close the door — for days. Little news trickles out. Conference committees wait, and wait, for the spending targets they need to put final bills into shape.

That's been the pattern for years. Lawmakers acknowledge that such secrecy does not befit public work but claim that it's vital to timely dealmaking.

This year's events undercut that claim. With little common ground bridging bills enacted by the DFL Senate and the GOP House, too many decisions were left for the leaders to privately decide. The closed-door phase dragged on for 10 days and ended the evening of May 15 with an agreement between Daudt and Bakk that did not include Dayton.

Laws aren't made and state budgets aren't set unless a governor signs them. Legislative leaders claimed on May 18 that they were finishing by the constitutionally set deadline. But without Dayton on board, they weren't finished, and they knew it.

What they were doing was squeezing far too much conference committee work into a time span too short for the public to watch or knowledgeable stakeholders to advise. "Drafting errors" like the one that would have gutted the auditor's office on July 1 happen easily and often in such situations. Surprises appear — like a $7 million underground parking garage tucked into a bonding bill.

Accountability suffers. The rush to the finish allows legislators to tell their critics that they did not know what was in the final bills, or that they were compelled by caucus leaders' secret agreements to accept objectionable provisions.

Some legislators may like the cover that gives them. Judging from the grousing chorus that rose from the rank and file in recent weeks, many do not. Calls for public posting of bills 48 hours before floor votes popped up from several quarters last week. Threats to slow down a special session by refusing to suspend the rules were heard.

Sen. Carla Nelson, R-Rochester, called for a formal deadline, well in advance of a session's constitutional expiration date, by which leaders would be obliged to present targets to conference committees.

That idea is in keeping with a host of legislative reform measures recommended by a House panel in 2008. That panel's leader, Rep. Gene Pelowski, DFL-Winona, remains an advocate for rules that would compel earlier action on major bills and bring target-setting into the open, with more than just a handful of leaders calling the shots.

Not many of those 2008 ideas for a session's final phase were accepted at the time. My guess is that they'd be pretty popular today — and that legislative leaders would be well-advised to dust them off and embrace them as their own.

Lori Sturdevant, an editorial writer and columnist, is at lsturdevant@startribune.com.