Common Cause president Bob Edgar

Common Cause president Bob Edgar. Photo: Paul Demko

When Gov. Tim Pawlenty stunned state legislators and Capitol observers in May by announcing that he was going to unilaterally solve the state’s remaining $2.7 billion deficit, the consensus was that it was only a matter of time before his authority to do so would be challenged in court.

After all, the governor’s unallotment powers had never before been utilized in such a dramatic manner. In fact, the authority had only been invoked four times in the last three decades, with the largest sum stripped out of the budget being $280 million. Pawlenty’s decision to utilize the power to close the $2.7 billion deficit was unprecedented — and many believe unconstitutional.

But as the weeks have passed since Pawlenty’s announcement, no lawsuits have yet been filed challenging his authority. Former U.S. Attorney David Lillehaug says he’s provided advice to several groups weighing their legal options. “To this point no organization or government entity has authorized me to file a lawsuit,” he says.

Some potential plaintiffs have already backed off. The League of Minnesota Cities opted not to sue, citing fears that even if it won such a lawsuit it would do nothing to forestall even deeper cuts in the next biennium. The Minnesota Hospital Association also decided against litigation after consulting with the group’s legal advisers.

“They came to the conclusion that it was not something that hospitals wanted to do in Minnesota,” says Janice Hennings, the hospital association’s director of communications. “At this particular time they just felt that it wasn’t feasible to do it.”

The DFL leadership is still considering a lawsuit, according to House Majority Leader Tony Sertich.

“I believe there are many legislators on both sides of the aisle who are concerned about the institution of the legislature and our role in setting the budget and the governor’s overreach,” says Sertich. “Nothing has been decided by anyone.”

Winona County is also apparently weighing its legal options. According to an article in the Winona Daily News, county commissioner Dwayne Voegeli wants to get a legal opinion on the matter from the Minnesota Attorney General’s Office.

“A lot of people are hoping and assuming that someone else puts this out there,” Voegeli told the newspaper. “So why not little Winona County? Someone needs to.”

But so far the only organization that has explicitly stated that it intends to sue is Common Cause Minnesota. The nonprofit group believes there is fertile legal ground on two fronts: challenging Pawlenty’s constitutional authority to use the unallotment powers so broadly and testing whether he can strip out programs that are already enshrined in state law.

Bob Edgar, the president of Common Cause’s national organization, says Pawlenty’s actions set a dangerous precedent.

“What’s going to happen two years from now?” asks Edgar, who was in town this week to discuss the forthcoming litigation with local leaders. “What’s going to happen four years from now? Do you eventually get to the point where the governor makes all the decisions? It’s just a procedural issue that we think stretches the authority of the governor a mile and a half too far and we think the courts ought to take a look at it.”

Common Cause also expects to challenge the elimination of the political contribution refund program. Pawlenty stripped out $10 million in funding for the program, which allows Minnesota residents to get a refund of up to $50 on contributions for state races. Edgar argues that since the program is part of state law, Pawlenty can’t simply decide it no longer exists.

“We’re going to look and find some people who have made contributions to candidates expecting that they will receive their $50 back,” Edgar says. “We’re looking for some low and moderate income people.”

In addition to seeking the proper plaintiffs, Common Cause is also in the process of assembling a legal team willing to take on the case for free. The nonprofit group expects a lawsuit to be filed in late August or early September.

“We’ve been having a lot of conversations with attorneys,” says Mike Dean, executive director of Common Cause Minnesota. “I think I’ve chatted with over 15 attorneys about this. We’re in the process of developing a legal team to pursue this.”

He believes other organizations may have ultimately gotten cold feet about a protracted legal battle. “Honestly, a lot of the groups have backtracked, mainly because of the cost of filing a lawsuit,” Dean says. “It is going to be extremely expensive and a lot of them feel it’s just not worth it.”

Any legal fight is likely to drag on for months, if not years. But in the meantime there will almost certainly be legislative attempts by the DFL majority to explicitly reign in the governor’s unallotment authority when the legislature reconvenes next year.

“I think it’s a fair assessment to say there will be legislation pursued to strictly limit the unallotment authority,” says state Sen. John Marty, who is among the Democrats seeking to replace Pawlenty in 2011. “I think we could pass that. The question is: would the governor sign it?”

Update: ACLU also eyeing possible unallotment legal challenge