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First Ever Rule Veto, Stirs Memories and Old Debate

By Eric L. Lipman

On Friday, Governor Tim Pawlenty exercised the powers the granted to him under Minnesota Statutes § 14.05 to ?veto all or a severable portion of a rule.? The Governor?s veto bars certain proposed revisions to the state?s voter registration rules from going into effect.

The Office of Governor Pawlenty had earlier expressed concern that the Secretary of State?s proposed rules with respect to registering voters who reside in residential facilities or who are enrolled in post-secondary educational institutions, exceeded the terms of the statutes authorizing those rules. The matter is now referred to the Legislature for its consideration, as with the veto ?the governor shall notify the chairs of the legislative committees having jurisdiction over the agency whose rule was vetoed.?

While the regulatory veto has been threatened a few times since it was first enacted in 1999, this is apparently the first time that a Governor has exercised this power. This is perhaps not surprising, because most of the executive branch officials who are promulgating state rules are appointees of the Governor. In the ordinary course, the Governor need only direct his ministers on the favored course ? neither a threat nor a veto is necessary.

The matter is not altogether the same when the executive branch official promulgating rules is a member of a different political party from the Governor, elected with a separate electoral mandate and not subject to dismissal at the pleasure of the Governor. In 2000, Governor Jesse Ventura (I-Minnesota) objected to revisions to the same-day voter registration rule proposed by Secretary of State Mary Kiffmeyer (R-Minnesota). Secretary Kiffmeyer and her team chaffed under this pressure ? arguing that her role in the process for election-related rules flowed from wholly separate constitutional and electoral mandates than that which underlay the Governor?s powers. The contrary argument, of course, was that the Legislature was fully entitled to place whatever conditions it saw fit on the delegation of its law-making powers to executive branch officials. The Legislature, so the argument goes, could condition the later effectiveness of administrative rules upon the Governor?s acquiescence, the spin of a roulette wheel or even the vote tallies on American Idol ? matters as to which the Secretary of State could not complain.

In 2001, these two views clashed in a Conference Committee on rules legislation that I shall never forget. While a junior Member of the House and the most-junior of three House conferees, I argued the former position; whereas the latter position was advanced by then-Senate Assistant Majority Leader, John Hottinger. (He would move into the top spot in the State Senate in the following session). The two of us circled in an ever-sharper set of exchanges over my proposal to strip the Governor of the power to veto rules promulgated by fellow Constitutional Officers. With each treatise I cited, and law review that I circulated to the conferees, the tension in the room only tightened. Then Senator Hottinger ended our argument as only a senior leader of the Senate can, declaring: ?Representative Lipman, listening to you, I have gone from being un-persuaded, to being un-persuadable !? The regulatory veto was not to be touched or altered; and has not been since.

For me, someone who is long since gone from these battles, yesterday?s events have all of the sharp pathos of an arty French film: ?Plus ça change, plus c'est la même chose.? (The more that our Constitutional Officers change, the more our regulatory debates remain the same).

Full post as published by Within the Scope on May 03, 2008 (boomark / email).