According to this amicus brief, the DFL legislature is joining in the unallotment lawsuit. Here’s a portion of their brief:

After the legislature adjourned, Governor Pawlenty vetoed H.F. No. 2323 (Chapter 179), a bill that increased taxes and delayed some expenditures by approximately $2.7 billion. Journal of the House 2009 Supplement, p. 7481, available at: http://www.house.leg.state.mn.us/cco/journals/2009-10/Jsupp2009.htm#7481. This action created a shortfall between enacted appropriations and projected state revenues of approximately that amount ($2.7 billion).

Fiscal Analysis Department, Minnesota House of Representatives, Chapter 179 (HF 2323/SF 2074) Conference Committee Report May 18, 2009 - - Vetoed (showing a $2.7 billion deficit under the enacted budget bills and a $3,625 balance if H.F. 2323 had been enacted into law, rather than vetoed), available at: http://www.house.leg.state.mn.us/fiscal/files/tax09.pdf. All of these events occurred in May and June 2009, before the beginning of the fiscal 2010 – 2011 biennium. The underlying revenue estimates were based on estimates prepared by the Department of Management and Budget (“MMB”) in February 2009.

At this point, the Amicus Brief’s point is moot. Had H.F.2323 been signed into law, the projected balance at the end of the biennium was projected to be $3,625.

This says a number of things, most importantly, that the DFL didn’t really balance the budget as constitutionally mandated. While they technically met their constitutional responsibility, leaving the state with a $3,625 surplus at the end of the biennium is beyond laughable. Hypothetically speaking, spending $60,000 on 50″ flat screen TVs for sex offenders would wipe that ’surplus’ out.

Let’s also remember that legislators, DFL and GOP alike, were predicting that we’d be facing another monster deficit when the next legislature convened in 2011. With revenues already falling short (by more than $3,625 I might add), the DFL’s sham budget is already worthless.

I’d bet that the DFL wants doesn’t want to argue that they met their constitutional responsibility by leaving a projected $3,625 surplus at the end of the current biennium. In fact, I’m betting that that’s the last thing they want discussed.

According to Rep. Juhnke’s statement in the Rules Committee hearing, he suggests that a governor’s unallotment authority isn’t available if a deficit is expected. That argument is torn to shreds because the legislature asked Gov. Pawlenty to unallot money to balance the 2008-2009 budget.

The DFL legislature increased spending by 9.3 percent for the 2008-09 budget, almost half of which was one-time money. They did this while the economy was softening. Simply put, they either saw the deficit coming or they’re incredibly stupid with regards to economics.

It’s difficult now to argue that a governor can’t use his unallotment authority if the deficit is expected 2 years after asking Gov. Pawlenty to use his unallotment authority to balance the budget after the DFL legislature spent the budget into a predictable deficit.

Eric at Developers are Crabgrass made an interesting point in an email he sent that’s worth discussing here:

I have always wondered, since the time of Andrew Jackson it seems that the legislature and courts cannot make a chief executive spend money allocated and in the treasury, but kept there and not spent.

I’m not a legal scholar but it seems to me that neither the legislative nor the judicial branch can order the executive branch, whether we’re talking at the federal or state level, to spend money. The legislative branch can establish the parameters by which the executive branch can spend money but that’s the extent of their authority. Similarly, the judicial branch can’t force the executive branch to veto or sign bills.

Even if the DFL wins this case, they’d then have to argue that Gov. Pawlenty is obligated to raising taxes. They’d have to do that in an election year. Their worst nightmare would be arguing that while Gov. Pawlenty would be extremely motivated to expose their not meeting their constitutional responsibility of balancing the budget. (Does the DFL really want to argue that leaving a $3,625 surplus is meeting their constitutional responsibility? Especially when it’s already known that we’re running $80,000,000 behind forecast?)

I couldn’t remember the size of the DFL’s tax increase so I scoured my archives. Fortunately, I hit paydirt with this post:

Faced with a certain veto of their major tax bills and little agreement among themselves, House and Senate DFL leaders took opponents by surprise on Thursday evening with a brand-new bill that may raise $1 billion from a combination of taxes on cigarettes, alcohol and lofty incomes.

No one knows for sure how much the bill would raise or where it would come from, because the bill itself had only blank spaces where the numbers should go. “I’ve never seen anything like this,” marveled House Minority Leader Marty Seifert, moments after the bill passed the Senate. “It has all blanks in it.”

Sen. Bakk’s bill called for a $2,200,000,000 tax increase. Rep. Lenczewski’s initial bill called for a $1,500,000,000 tax increase. Following the last minute conference committee meeting, started at 10:30 the final night of the session, House and Senate conferees agreed to a $1,000,000,000 tax increase, with small businesses, aka the job creation engine of the U.S. economy, getting hit with a disproportionate portion of the tax increase.

If the DFL wants to fight that fight, then I’ll be there every day reminding Minnesota’s taxpayers that the DFL’s definition of a balanced budget was to have a GIGANTIC SURPLUS of $3,625 in the account at the end of the 2010-011 biennium. It’s worth noting that the DFL’s final budget was the only budget they passed that balanced the budget, which is why the DFL’s budget wasn’t taken seriously by news organizations like WCCO and KSTP.

King highlights the DFL’s other problem in winning this fight by citing Minnesota Supreme Court precedent on a governor’s unallotment authority:

The Minnesota Supreme Court also spoke on the unallotment process in Rukavina v Pawlenty (684 N.W. 2nd 525 [2004]), finding it constitutional for the Legislature to have ceded that power.

Although appropriation of money is the responsibility of the legislature under Minn. Const. Art. XI § 1, it is an annual possibility that the revenue streams that fund those appropriations may be insufficient to actually realize each appropriation. For that purpose, the legislature, by statute authorized the executive branch to avoid, or reduce, a budget shortfall in any given biennium. Minn. Stat. § 16A.152 does not represent a legislative delegation of the legislature’s ultimate authority to appropriate money, but merely enables the executive to deal with an anticipated budget shortfall before it occurs.

Although purely legislative power cannot be delegated, the legislature may authorize others to do things (insofar as the doing involves powers that are not exclusively legislative) that it might properly, but cannot conveniently or advantageously, do itself. (cite omitted). It does not follow that, because a power may be wielded by the legislature directly or because it entails an exercise of discretion and judgment, it is exclusively legislative. (cite omitted). Pure legislative power, which can never be delegated, is the authority to make a complete law–complete as to the time it shall take effect and as to whom it shall apply–and to determine the expediency of its enactment. We conclude that Minn. Stat. § 16A.152, does not reflect an unconstitutional delegation of legislative power, but only enables the executive to protect the state from financial crisis in a manner designated by the legislature.

I’m certain that the DFL’s attorneys know about this precedent. I’m equally certain that they know that they’re facing long odds on winning this lawsuit. I’m totally certain that they aren’t worried about the lawsuit ruling, that they’re doing this as an opportunity to cast Gov. Pawlenty and the MNGOP in a negative light.

Something that I’m certain of is that raising taxes on small businesses when Minnesota’s unemployment rate is high is political suicide. If the DFL wants to fight this fight, then Minnesota’s conservatives should get ready for this battle because it’s a fight that the GOP will win.

Technorati: Deficits, Tax Increases, Lawsuit, Tom Bakk, Speaker Kelliher, Tarryl Clark, Ann Lenczewski, DFL, Tim Pawlenty, Unallotment, Legal Precedent, MNGOP, Election 2010