Newest Minnesota Senate standoff seems bound for court
Minnesota's Senate is in another sticky spot and could soon find itself back in court.
Senate Minority Leader Tom Bakk, DFL-Cook, said Thursday that he or someone else is sure to take legal action if Republican Senate President Michelle Fischbach tries to keep her seat after becoming lieutenant governor. Fischbach will automatically assume the new post when current Lieutenant Gov. Tina Smith, a Democrat, resigns to become a U.S. senator by appointment of Gov. Mark Dayton.
Fischbach and Republicans are relying on an 1898 state Supreme Court ruling to buttress their contention that she can do both jobs at once. Bakk and Democrats argue a constitutional change in 1968 specifically prohibits legislators holding another office.
"Even if my caucus doesn’t bring suit, someone is going to bring suit on this," Bakk said. "I just think looking at it, I don’t think it passes the smell test."
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Bakk denied having any role in the Smith selection. He said he hadn't spoken with Dayton for months before the fellow DFLer informed him Wednesday he was turning to Smith to take over for Democratic Sen. Al Franken upon his promised resignation.
The kerfuffle matters because if Fischbach is forced to leave the Senate it could knot up a chamber her party now controls 34-33. (DFL state Sen. Dan Schoen is resigning effective Friday amid sexual harassment allegations; a special election is set for Feb. 12.)
Bakk said Fischbach would stretch separation of powers boundaries if she has a foot in both the legislative and executive branches.
"She should take the oath as lieutenant governor, resign her Senate seat and let’s have a special election as soon as we can so we can get that seat filled before the session starts," he said, adding that his caucus has already heard from two candidates who would run in a district that has been reliably Republican.
That won't happen, said Senate Majority Leader Paul Gazelka, R-Nisswa.
He has proposed that Dayton call a special session so Republicans could install a Democrat in the Senate president's role for the purpose of succession, thereby leaving the power balance unchanged. Dayton said he won't do that without agreement from all four legislative caucus leaders, which could be tough given competing interests.
"It's a mess," Gazelka said Thursday. "It's not easy to find a pathway through but the way I was proposing I thought was the best way. I’m still hopeful that maybe we can do that. But if not, then she’ll be the lieutenant governor and president of the Senate."
All sides are waiting on a legal opinion from Attorney General Lori Swanson, a Democrat. But Gazelka said he is inclined to be partial to the advice rendered by the Senate's nonpartisan lawyer.
After the Legislature and Dayton spent months in court battling over line-item vetoes -- a case the governor prevailed in -- Gazelka isn't eager to go back before judges.
"I hope not," he said. "But I realize that is a scenario just like the de-funding of the House and Senate."
But Gazelka added of Fischbach's dual roles, "If we have to fight that in court, then we will."
Dayton and Fischbach are set to have their first meeting on Friday in a private lunch at the Governor's Residence.