Era of coronavirus tests openness in Minnesota Legislature

The leaders of both parties stood together — yet 6 feet apart — to announce the unprecedented step of recessing the Minnesota Legislature in the middle of the session to limit the spread of coronavirus.

The only problem: They still needed to respond to the pandemic.

Variations on that scene at the State Capitol two weeks ago have played out in government bodies across the nation as state assemblies, city councils and Congress restrict access to their offices to protect lawmakers and the public from the further spread of COVID-19 — even as they're called to take decisive actions to respond. The era of social distancing has forced once open discussions into private conference calls and Zoom meetings, where decisions are made about sweeping policies and millions of taxpayer dollars, all without public input.

Some see the disruption as a stress test for liberal democracy's principles of openness and transparency.

In a time of crisis, "transparency is often the first thing to go," said Matt Ehling,executive director of Public Record Media, which advocates for transparency in state policies. "There is certainly an imperative for the government to act to secure public safety in these times, but the government has constitutional mandates that are placed upon it that don't go away in a time of emergency."

Congress, which is closed down to the public, negotiated a $2.2 trillion stimulus package mostly in private among a handful of top party leaders. On March 13, three days before Minneapolis Mayor Jacob Frey declared an emergency, City Council members received a briefing on the city's coronavirus preparation efforts. The council initially closed the meeting to the public but reversed that decision after the Star Tribune objected.

In St. Paul, state legislators approved a $330 million COVID-19 response bill on Thursday that was negotiated in private meetings with Gov. Tim Walz's administration. The legislation was posted online to the public 10 minutes before members of the House were set to convene and vote on the package.

Even as lawmakers were voting on the bill, many didn't know what was in it. Sen. Tom Bakk, DFL-Cook, had questions about the use of $20 million from a fund meant for public infrastructure to support large mining projects on the Iron Range for a coronavirus response.

"If we're going to be asked to help with money designated to the Iron Range, is this money a grant or will this be paid back to us?" he asked Republicans in the majority.

Sen. Eric Pratt, R-Prior Lake, who helped oversee that section of the bill, responded that he "did not see this language until this morning" but agreed the question needed to be addressed. "As soon as we can be closer than six feet together, I'm happy to talk about it," he said.

For Ehling, the legislative scramble was reminiscent of post-9/11 policymaking. Most members of Congress hadn't read much of the Patriot Act before they were asked to vote on it. Many of those provisions are still in place today. "This is a key example of why it is important to challenge assertions of government power made during an emergency, since they are difficult to claw back at a later time," he said.

Policymakers at every level are keenly aware of open meeting laws, and in some cases, how to avoid triggering them.

In Minneapolis, while the city's public health emergency is in place, Mayor Jacob Frey dials into a Skype call three times a week with an advisory group that includes the heads of various departments, City Council President Lisa Bender and Vice President Andrea Jenkins. The elected officials don't make up a quorum of the group, so the city says it isn't required to open the meetings to the public.

The Minnesota Legislature is not bound by the same open meeting laws as local government entities. But in 1990, legislators passed their own law that requires all meetings be open to the public, including House and Senate floor sessions and committee meetings, when a quorum of members is present.

While a city council member or mayor can be sued for violating the open meeting law, the Legislature's language doesn't have such an enforcement mechanism. Even so, state lawmakers have been careful in recent weeks to limit their meetings to avoid a quorum. Instead, they have divided discussions between parties into small virtual "working groups" that have discussed topics from child care assistance and changing tax deadlines to forgiving driver's license renewal dates.

The calls have not been open to the press or public. A Star Tribune reporter was denied access to the meetings and any recordings of deliberations, which a House DFL spokesman said did not exist.

Senate Majority Leader Paul Gazelka, R-East Gull Lake, said it's been a steep learning curve for legislators to adapt and embrace all-new technology to hold meetings. "Even within our caucus, I didn't always communicate the way I wanted to because we're trying to learn new systems. Add to that, we're trying to be transparent to the public and it just made it extremely difficult," he said.

The grinding of the machinery of government was on full display Thursday when state lawmakers reconvened to pass the $330 million emergency aid package. They spaced themselves on the floor, with some moving up into the public viewing gallery to allow for social distancing. Some lawmakers didn't show up at all and cast their ballots remotely, the first time that's ever been done. The House and Senate chambers were roped off to keep members of the media and public from getting near the floor. Legislators who showed up were armed with disinfectant wipes and traded squirts of hand sanitizer.

House Speaker Melissa Hortman, DFL-Brooklyn Park, said there were good reasons for caution. Legislators represent every community across the state and converge on the Capitol to cast votes before dispersing again to their districts. At least one Minnesota House staffer has already tested positive for COVID-19, and two legislators, Sen. Paul Anderson, R-Plymouth, and Rep. Jon Koznick, R-Lakeville, are in self-quarantine after coming in contact with people who have the virus.

"We are a gigantic petri dish," Hortman said. "You take 201 legislators who have had contact with other humans and put them all in the same building. You better have a darn good reason to bring that viral load into the building all at the same time."

Before gaveling out the one-day session, the House voted in favor of allowing remote committee hearings that require an opportunity for public testimony. The Senate did not.

Staff writers Torey Van Oot, Liz Navratil and Emma Nelson contributed to this report.