The Minnesota constitution says governors may appoint notaries public and “other officers” with “the advice and consent of the senate.”
State statute gives the Senate leeway in its advise-and-consent authority over executive appointments, almost all of which rest with the governor. Senate committees and the full body may take them up for confirmation or not. In most cases appointments never come up for a floor vote, and many appointees serve without any Senate action on their appointments. Appointees serve at the governor’s pleasure — unless a majority of the Senate votes otherwise, at a time of its choosing.
That can spell trouble. Confirmation power over cabinet appointments has been increasingly weaponized in the last two decades, by Senate majorities of both parties.
It remains under threat from the Republican-controlled Senate during Tim Walz’s first term — in no small part over the DFL governor’s steps to guard public health during the COVID-19 pandemic.
In August 2020, the Senate voted against confirming Department of Labor and Industry Commissioner Nancy Leppink, even though she had served since February 2019. Hers was the first such ouster of a cabinet member in 12 years.
In a special session a month later, Senate Republicans fired Commerce Commissioner Steve Kelley, citing in part his decision to appeal a permit for the controversial Enbridge 3 pipeline project.
Next up was Laura Bishop, Walz’s Pollution Control Agency commissioner for two and a half years, whose Clean Cars rule to stock dealerships with more electric vehicles angered Republicans. On the verge of being rejected by the Senate, Bishop resigned in July.
Still uncertain is the fate of Department of Health stalwart Jan Malcolm, who has been commissioner under three governors — Jesse Ventura, Mark Dayton and Walz — and has managed the pandemic response hand in hand with Walz.
Malcolm and Leppink presided over the governor’s COVID emergency declarations, which stretched from March 2020 to July 2021 and were sustained — over vehement Senate opposition — by support in the DFL-controlled House of Representatives.
Fearing the Senate would oust arguably the most important member of his cabinet since the pandemic began, Walz didn’t call a special legislative session late last year to divvy up COVID relief payments to front-line workers. He wanted a guarantee from Republican senators that Malcolm and any other cabinet member wouldn’t lose their jobs.
Without clearer constitutional and statutory direction on confirmations, leaders must resort to good faith. It has broken down.
Confirmation now appears to have little practical use outside of attacking a governor’s agenda and the conduct of his office. It’s an asymmetric exercise in power, a distortion of checks and balances.
Future would-be cabinet members might think twice before accepting an appointment that could make them disposable bait for political leverage. The chilling effect could inhibit governors from making appointments based on qualifications instead of rough-and-tumble politics.
As the 2022 legislative session gets underway, it remains to be seen whether Senate Republicans are still after Malcolm. Her ouster would amount to political malpractice. In addition to her three stints as state health commissioner, she has been a leader in health care delivery (executive posts with Allina Health and Courage Center) and academia and research (the University of Minnesota School of Public Health).
Hers has been a voice of reason and calm during the pandemic, including its fearful and chaotic early months, and she now oversees a state response predicated on keeping schools and business open, safely.
Republicans have been especially vigorous in the Walz era, but both parties have played the confirmation game.
In 2004 the DFL-controlled Senate ousted Cheri Pierson Yecke, Republican Gov. Tim Pawlenty’s education commissioner. Yecke’s alleged promotion of intelligent design as a competing theory to evolution in the state science standards was among the criticisms against her. In 2008 the Senate ousted Lt. Gov. Carol Molnau from her dual role as Pawlenty’s transportation commissioner, an arrangement some questioned from the start. Her firing followed a string of controversies involving Molnau and the Department of Transportation, including fallout from the 2007 collapse of the Interstate 35W river bridge in Minneapolis.
Senators mustn’t abuse their advise-and-consent authority to settle scores or advance an agenda they don’t have the numbers or a mandate to advance. Our imperfect confirmation system needs a fix.
We recommend that state law be changed to limit the Senate to a prescribed period — perhaps 30 to 45 days — while in session to confirm or deny an appointment. Absent Senate action, appointees would continue to serve, as they do now.
Ultimately, lawmakers should aim higher by including such language in a constitutional amendment to be decided by voters.
— An editorial from the APG of East Central Minnesota Editorial Board. Reactions are welcome. Send to: email@example.com.