Fischbach's double duty has Senate on edge

Lt. Gov. Michelle Fischbach chats with her lawyers.
Lt. Gov. Michelle Fischbach chats with her lawyers before a motion hearing February 6, 2018 in a civil lawsuit related to her dual roles, which a Ramsey County judge declined to settle.
Renee Jones Schneider | Pool via Star Tribune

In her day job, Republican Sen. Michelle Fischbach presides over debate and represents a crucial vote in the Minnesota Senate.

In her other day job, she's the state's new lieutenant governor and would ascend to the top job if anything happened to DFL Gov. Mark Dayton.

The combination has created tension as the Legislature returns Tuesday for its 2018 session. Republicans, clinging to a one-seat majority, are on guard for Democratic attempts to force Fischbach out and throw the Senate into an unprecedented tie.

Lt. Gov. Tina Smith speaks to the media after being named to the Senate.
Lt. Gov. Tina Smith speaks to the media after Minnesota Gov. Mark Dayton named to her to replace Al Franken in the U.S. Senate on Dec. 13, 2017.
Brian Peterson | Star Tribune 2017

Fischbach, of Paynesville, received the involuntary promotion to lieutenant governor in January when Dayton appointed his second-in-command, Tina Smith, to the U.S. Senate in the wake of Al Franken's resignation. The state Senate president was in the line of succession.

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Fischbach has discounted the lieutenant governor role as largely ceremonial and has so far declined to take an official oath. She said she's intent on remaining a state senator. History, she argues, allows it.

"Seven male senators have served in both roles before," Fischbach said after a recent court hearing on the matter. "We are confident that the precedent that we have not only there but in our Supreme Court case will be followed."

The high court decision she cites was in 1898.

Democrats say she's misreading the situation and contend that updates to the state Constitution make clear she can't straddle the executive and legislative branches.

Fischbach has already survived one legal challenge on the grounds a constituent's lawsuit was both premature and lacked a qualified plaintiff. Democratic Senate Minority Leader Tom Bakk, DFL-Cook, hinted more legal wrangling is ahead.

"When she casts that first vote," Bakk said last week, "I think that raises the question of: Is that vote constitutional?"

Minnesota's Constitution says it's up to each legislative chamber to judge the eligibility of its own members.

Challenges are rare.

Rewind to 1979, when the Minnesota House was knotted 67 to 67 and operating under a power-sharing deal. That was until Independent Republican Bob Pavlak was booted from his St. Paul seat months into the session amid an unfair campaign practices dispute from the prior year's election.

Steve Sviggum
During an emotional announcement Steve Sviggum resigned Thursday from the University of Minnesota Board of Regents. Sviggum offered his resignation as the board was considering a resolution asking him to resign his position on the board, or as spokesman for the state GOP caucus. The board determined Sviggum couldn't hold both jobs without a conflict of interest.
Tim Post | MPR News 2012

Steve Sviggum was there.

"I remember crying, anger and frustration," said the former lawmaker from Kenyon.

He was a freshman Republican who would rise years later to House speaker. To this day, Sviggum says it was the most partisan power play he witnessed in his roughly 30 years in office.

By removing Pavlak, Democrats gained control. Rules barred him from voting on his own status.

"One vote makes all the difference in the world," Sviggum said. "One vote sets the agenda. One vote makes all the committee chairs and the gavels and sets the agenda for the entire session."

Right now, the Senate has 34 Republicans and 33 Democrats. So the stakes are enormous.

The Minnesota Senate Chamber.
The ceiling of the Minnesota Senate Chamber is reflected on a desk inside the west wing of the Minnesota State Capitol on Dec. 14, 2016.
Evan Frost | MPR News 2016

Whether Fischbach could vote on any challenge to her eligibility is unclear. It's also not known what kind of motion could be made because it's not rooted in a contested election, as was the case with Pavlak.

Secretary of the Senate Cal Ludeman said questions about process are "too hypothetical" to answer. Minnesota's Constitution requires a two-thirds vote to expel a lawmaker as punishment for disorderly behavior.

"There is no procedure for a challenge in this case," said Peter Wattson, the Minnesota Senate's former chief lawyer. He retired in 2011.

Wattson has extensively researched the procedure for removing lawmakers here and elsewhere, and he wrote a 2008 legal paper on it.

He's betting that the sides come to a creative solution rather than letting it get ugly in public.

"The chances of Sen. Fischbach being removed from the Senate are pretty close to zero," Wattson predicted.

Bakk won't say whether Democrats will raise a first-day ruckus or head immediately back to court with a new lawsuit.

Senators Bakk and Gazelka
Senate majority leader Tom Bakk, left, and Sen. Paul Gazelka, R-Nisswa, spoke on the Senate floor during the last night of the legislative session in 2015.
Jennifer Simonson | MPR News 2015

Bakk said he and Senate Majority Leader Paul Gazelka have spoken about the importance of maintaining decorum and avoiding "a carnival-type atmosphere."

There's also the possibility that Fischbach and Republicans make a sudden parliamentary move, perhaps by trying to install a Democrat in the president's position. If Fischbach then resigned as lieutenant governor, the new president would land the job and face calls to leave the Senate.

Gazelka, R-Nisswa, isn't advertising his side's plans either. He said Republicans will take things as they come.

"There likely will be some scenario where the vote will be 34-33," Gazelka said. "Others will have to decide if they want to take that to court, and what does that mean for the work we can get done in the Senate? That's the part I can't control. But at this point we're moving forward until someone says otherwise."

Sviggum, the former House speaker, said he hopes senators avoid a repeat of 1979 at all costs.

"It destroyed relationships for a long, long time," he said. "There is no politics, there is no power that is worth that."