State Capitol. Photo: Wikipedia

When a stubborn government official refuses to release public information as required under Minnesota law, a costly and lengthy lawsuit is often a citizen’s only recourse.

But state Rep. Gene Pelowski, DFL-Winona, has authored a bill that will simplify, cheapen and shorten the process used by citizens and the media to gain access to public government information.

“In the transformation to the age of information, we should not only be able to see that public data is there, we should have access to it in a timely manner, Pelowski said. “We shouldn’t have anyone who is in possession of public data being able to say, ‘I’ll give it to you when I damn well please, or take me to court.’”

The reforms are an attempt to embrace the spirit of Minnesota’s data practice laws, which presumes that all government data is public and sets general standards for how to respond to data requests.

The bill’s the first major step in a series of open government reforms spurred by the Minnesota Newspaper Association (MNA).

The increasing complexity of Minnesota’s data practice law is an obstacle to citizen access, said MNA lawyer Mark Anfinson. The law has grown to about 115 pages in the last 25 years, so it’s often seen as simpler for officials to err on the side of withholding information than releasing it.

“It doesn’t just undermine the spirit [of the law], it fundamentally undermines the whole effective operation of the statute,” Anfinson said.

The news media once led the way in pushing government to disclose public data through lawsuits, Anfinson said, but that pressure to allow access has largely disappeared as the newspaper industry’s health deteriorated. Court cases can last up to a year and typically cost between $7,000 and $20,000 in legal fees.

“With their diminished resources they’re less likely to spend the money, which is harder to come by, on these sort of lawsuits,” Anfinson said. “If some people in government realize the great majority of folks concerned with information and the law aren’t going to sue them — it obviously dilutes the incentive to comply with the law.”

Instead of forcing citizens to take government to district court, the cases would be heard by administrative judges in the Minnesota Department of Administration, which volunteered to take the court cases from the overburdened circuit courts and has helped shape the bill over the last few months.

Holding hearings with administrative judges would allow the cases to be decided within six weeks, rather than the six months to a year typical of district court cases.

“That process will be much quicker, much cheaper and probably more reliable over all,” Anfinson said. “It will be more consistent in how the law is interpreted because you’ll have a small group of judges who over time will become more familiar with the law.”

Rep. Gene Pelowski

The high cost connected to circuit court cases would be replaced with a $1,000 fee, which would be refunded if the citizen wins the case against the government, along with up to $5,000 in lawyers fees.

“Virtually every case that’s ever been litigated in district court involving the data practice act is an exhibit in favor of this reform,” Anfinson said. “The present enforcement mechanism is basically broken.”

Although there’s been a lot of careful clarification of the bill’s language, it hasn’t run into much actual opposition, mostly because in addition to helping citizens and the media, it also benefits government bodies.

“Keeping the process simpler will cost them much less in legal fees when they’re defending cases and will knock out frivolous requests more effectively,” Anfinson said. “It will just clarify things in a way that will save the government a ton of money over time.”

Pelowski said the bill, which has bipartisan support, will likely be heard in the House Civil Justice committee this coming week. A companion bill sponsored by Sen. Don Betzold, DFL-Fridley, is also moving through the state Senate and will be heard next in the Senate Judiciary committee.

The state Information Policy and Analysis Division (IPAD) offers citizens and government bodies education on data practice issues. People who’d like to challenge a government body’s decision on a data practice request can contact the agency for a free, non-binding advisory opinion (pdf).

Under the current system, there’s a strong reluctance in government to release information that is rightly the public’s, said Minnesota Common Cause Executive Director Mike Dean.

Increased access to public information would allow citizens to hold their government accountable, he said.

“By shining a bright light on these things, you’ll tend to see less corruption, you’ll tend to see less problems within government,” Dean said. “The best disinfectant is sunlight.”

Ramsey County District Judge Kathleen Gearin didn’t buy plaintiff Robert Carney’s argument that the state’s Political Contribution Refund (PRF) program was a tax refund and not the kind of spending program that is vulnerable to gubernatorial unallotment (pdf).

Common Cause didn’t buy it either, and for that reason didn’t join the suit brought by Carney (who announced his candidacy for governor this week). But the group has been threatening since last summer to go to court on behalf of the PRF, which reimburses Minnesotans who make small political donations. And now they really might, said Mike Dean, the group’s executive director, in a statement.

Gearin’s ruling against Pawlenty’s use of unallotment in the earlier Brayton case “places a powerful check on the power of the state’s executive branch,” said Dean, “and the unallotment of the PCR should be viewed in that light.”

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

In the 2006 election cycle, the most recent for which data was available, 45 percent of Minnesota’s political donors gave $100 or less. By contrast, in 20 states less than 10 percent of contributions were from such small donors. The study examined the 36 states that held both gubernatorial and state legislative elections in 2006.

Under the Political Contribution Refund (PCR) program, enacted in 1992, individuals are eligible for a $50 rebate each year on donations made to local political parties and state candidates. But Pawlenty stripped out the program’s entire $10.4 million budget for the current biennium as part of his plan to unilaterally close the state’s $2.7 billion deficit.

Michael Malbin, executive director of the Campaign Finance Institute, says that Minnesota’s refund system is a model for promoting political engagement and effective governance.

“The states are suppose to be laboratories for reform,” Malbin notes. “Minnesota is the only state in the country that has this kind of a program. It is a big success. … When it goes to zero the laboratory’s gone.”

CFI also released data from a 2006 survey gauging how the program influenced the behavior of candidates and donors. For instance, one third of non-incumbents reported that they believed their small donors gave “mostly” because of the rebate program, while 23 percent of incumbents expressed the same sentiment. In addition, more than half of the candidates reported that they solicited donors they otherwise would have ignored if the program didn’t exist.

Less wealthy donors also reported that the program had a strong impact on their decision to make a contribution. For instance, 62 percent of donors making less than $40,000 stated that the refund system affected their decision to contribute, while roughly half of the donors with incomes between $40,000 and $100,000 expressed the same sentiment.

The bottom line, according to Malbin, is that politicians in Minnesota are less reliant on money from special interests such as corporations and labor unions than in other states.

“They’re getting it from the people who are lobbying them,” Malbin says of other states. “In Minnesota they’re getting it from the people they represent. It’s a much healthier system.”

Common Cause Minnesota is now seeking to rescue the PCR program. The advocacy group intends to lobby legislators to reinstate the system as early as possible when they reconvene in January, arguing that it has been instrumental in spurring political involvement and effective governance.

“I think Minnesota really is starting to lose that good-government reputation,” says Mike Dean, executive director of Common Cause Minnesota. “If we lose the PCR program, it’s going to be a quick slide.”

The nonprofit group is also mulling another alternative to save the refund program: suing the governor. Dean believes the governor has overstepped his executive authority by using his so-called unallotment power so broadly.

“We’re definitely heading in that direction at this point,” he says of a potential lawsuit. “We’re concerned that his use of the unallotment process is an abuse of power and it needs to be challenged.”

Gov. Pawlenty in the hockey jersey of the University of North Dakota, a state with early voting and no voter registration. Photo: nd.gov

If vetoes are like slapshot goals in hockey, then Gov. Tim Pawlenty scored an election-reform hat trick last week. After vetoing motor-voter and felon-notification, he scotched the state Legislature’s big omnibus elections bill.

The measure included provisions drawn from at least eight separate bills, from an earlier primary date to absentee-ballot streamlining. While the bill was  not everything reformers had sought — no early voting, for instance — it would have made dozens of improvements to the current system.

All fell to Pawlenty’s veto pen because the bill didn’t meet Republicans’ demand for new photo-ID requirements.

“Omnibus election bills making changes to our election process should be bipartisan. Unfortunately, this bill fails that test,” Pawlenty wrote in his veto letter (pdf) — a criticism he leveled at the other attempts at election reform as well.

The omnibus bill contained a long list of measures, minor and major, meant to improve Minnesota’s elections procedures.

Mike Dean, who directs the Minnesota office of the nonpartisan government-reform group Common Cause, laid the blame for the bills’ lack of bipartisan support at the feet of Pawlenty’s fellow Republicans in the state Legislature.

Their insistence on language mandating that prospective voters present photo identification was itself patently partisan, Dean said; the pool of voters for whom such a requirement is a problem likely leans left politically. In his view, Democrats correctly interpreted such changes to state election law as anti-DFL.

Interviewed hours before Pawlenty’s third election-reform veto, Dean called the first two vetos “disappointing and disingenous.” With them, Pawlenty discarded benefits that he claims to back, such as improved voter integrity and cost-savings for cities and counties.

Erin Sapp, election-reform project director at Heartland Democracy, likewise lamented that “Republican haven’t voted on the merits.”

Her group, a 501(c)3 nonprofit, has produced a report calling for universal voter registration — a goal that the motor-voter bill would have brought Minnesota closer to, by signing up driver’s-license applicants to vote (with opt-out available).

Almost every other democracy in the world has more liberal laws governing who can vote, Sapp said; indeed, as it originated in America, “voter registration was meant to bar people from voting.” Neighboring North Dakota has early voting and is the only state to do without voter registration altogether.

Too little, too late?

If Democrats “had been able to push [the omnibus bill] through earlier, they could have picked up 10 moderate-Republican votes,” Dean said — enough to override a veto or push Pawlenty to sign the bill.

With the contested Norm Coleman-Al Franken election providing a daily reminder of the need for reform, why didn’t the Legislature act sooner in the session? The Senate dispute itself was one reason — though not a good one, in Dean’s estimation.

“There was a hesitancy in leadership in the House because of the ongoing Senate trial,” he said — a wariness of an incorrect public perception that “changing state law would influence the trial.”

Reformers can try again next year, as Pawlenty himself suggested in his veto letter. Perhaps it’s more reasonable to expect that major changes like early voting would have a chance when the Coleman-Franken dispute is behind us. (That’s the gist of a Wednesday Pioneer Press editorial.)

But by the time the puck drops for the reconvened Legislature next February, Minnesota will likely have a second senator securely seated and the public’s sense of urgency on election reform may be lost — leaving the two sides to repeat this year’s face-off on reforming elections.

Correction: An earlier version of this article quoted Erin Sapp as saying, “Voter registration is meant to bar people from voting” (emphasis added). Sapp was referring to the origins of the policy, not its current use.