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MINNESOTA POLITICS

Musical chairs could put Bakk back in charge

Appointment of Tina Smith triggers obscure state leadership provision

Marshall Helmberger
Posted 12/21/17

REGIONAL— Could the resignation of U.S. Sen. Al Franken put state Sen. Tom Bakk, DFL-Cook, back in charge of the Minnesota Senate?

That’s just one of a number of questions now circulating in …

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MINNESOTA POLITICS

Musical chairs could put Bakk back in charge

Appointment of Tina Smith triggers obscure state leadership provision

Posted

REGIONAL— Could the resignation of U.S. Sen. Al Franken put state Sen. Tom Bakk, DFL-Cook, back in charge of the Minnesota Senate?

That’s just one of a number of questions now circulating in St. Paul as the state’s top leaders grapple with the political version of musical chairs touched off by Franken’s resignation.

When Gov. Mark Dayton appointed Lt. Gov. Tina Smith to fill Franken’s seat, it triggered a previously obscure provision of the Minnesota Constitution that requires the most recent presiding officer of the state Senate to become lieutenant governor in the event of a vacancy. That role, in this case, falls to Sen. Michelle Fischbach, R-Paynesville, the current Senate President.

Fischbach has held her office since winning a special election back in 1996, and she says she has no intention of resigning her seat, which would prompt another special election to fill her Senate vacancy. Fischbach insists she can do both jobs, but whether the state’s constitution allows that is now the subject of intense debate in St. Paul. A top Senate lawyer contends that Fischbach can serve in both positions, citing an 1898 state Supreme Court ruling that concluded that an individual could serve in both positions.

But that was a long time ago, and the job of the lieutenant governor has changed signficantly, and not just in terms of its duties. “Back in 1898, the lieutenant governor had no duties other than to preside over the Senate,” said Sen. Bakk. “But the constitution changed in 1971,” Bakk added, noting that the office became more substantive and took on a purely executive function. The lieutenant governor now presides over a number of executive branch commissions and has other significant duties in law, according to Bakk, who believes that Fischbach’s current plan would conflict directly with other constitutional provisions which prevent a person from holding two separate government positions at any one time, particularly when those positions include duties in the both the legislative and executive branches of government. “There’s a separation of powers issue there,” said Bakk.

Gov. Dayton, a DFLer, said he’s focused on hashing out a productive working relationship with the Republican Fischbach. He invited the senator to the governor’s mansion last Friday for lunch and both Dayton and Fischbach said the meeting was productive and that they look forward to working together.

As for whether Fischbach can hold both offices, Dayton said he’s leaving that to Attorney General Lori Swanson, who he has asked to rule on the question. Bakk said he’s confident that Swanson will find that Fischbach has no choice but to resign her Senate seat. “It’s clear that you can’t hold two offices at the same time— that’s black and white,” said Bakk.

Senate control in the balance

Republicans are clearly concerned that their slim majority in the Senate could be undone by the strange turn of events. While the GOP currently holds a 34-32 seat majority, that margin was padded by the recent resignation of DFL Sen. Dan Schoen, of St. Paul Park, over sexual harassment allegations. DFLers hope they can hold that seat in a special election set for February.

That would leave the GOP with a single seat margin, an edge that would be erased for a time if Fischbach is forced to resign her seat. And while Fischbach’s seat has been relatively safe Republican territory in recent election cycles, Bakk notes that Democrats have been overperforming in legislative special elections all around the country since the election of President Trump. He said he has already heard from several potentially strong DFL contenders for Fischbach’s St. Cloudd area seat.

While the DFL’s prospects for retaking the Senate in the near-term are real, they depend on several dominoes falling in their favor. First, the DFL needs to hold Schoen’s seat, then Fischbach has to resign her seat to give the DFL any hope of a special election pick-up.

The whole calculus could well be upset by the attorney general or, more likely, the courts, since neither side is likely to accept an adverse decision from Swanson. If it goes to court, the issue could remain in limbo for months, perhaps through the end of the next legislative session, which begins in February.

Meanwhile, GOP leaders have suggested a different solution, according to Bakk. He said Senate Majority Paul Gazelka, R-Nisswa, called him recently to suggest a January special session, during which the body could appoint a DFLer as Senate President. But Bakk sounded cool to the idea, and such a session would require action by the governor. And it’s not clear that DFLers are particularly eager to relieve Republicans of the unusual circumstances they currently face.

The situation has prompted some charges by Republicans that Dayton’s appointment of Smith to fill Franken’s seat was intended to upset the GOP’s current hold on the Senate. But Dayton spokesperson Matt Swenson disputes that charge. “That was the farthest thing from the governor’s mind,” he said. “His primary focus was on who would be the best person. And he had no question in his mind from the beginning that it was going to be Tina.”

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