Reshaping State Government

A Fundamental Reshaping of State Government

by Derf Johnson

How our government functions, and the processes and procedures for governmental decision-making, are about as dry as a saltine cracker. These issues don’t get folks nearly as excited as MEIC’s work in protecting Montana’s clean air, clean water, and wild landscapes. But procedures for making important environmental decisions, such as those required by the Montana Administrative Procedures Act, are often just as important as substantive laws. Think of the Clean Water Act, or regulations for clean air and water, or that grizzly bears have room to roam.

If there is one story to note from the 2021 Legislature on the processes and procedures of government, it is the attempts by the Legislature to consolidate power in the legislative and executive branches of government, to make government regulations and functions cumbersome, to reduce citizen participation and access to government, and to make the judicial branch of government less independent.

Following this session, it’s clear that those of us who care about clean air and clean water in Montana need to engage at the fundamental level of how our government functions in order to assure that the processes we operate within are not stacked against us.

became a top-of-the-fold story during the session. The brawl included legislative subpoenas, protective orders, and email information requests between the Legislature, Attorney General Austin Knudsen, and the Montana Supreme Court. All of this stemmed from SB 140 (Sen. Keith Regier, R-Kalispell), which eliminated Montana’s Judicial Nomination Commission and delegated appointment powers directly to the governor. This bill — along with HB 380 (Rep. Kerri SeekinsCrowe, R-Billings) that would contingently go into effect if SB 140 is found to be unconstitutional and would dramatically increase the number of individuals who serve on the Judicial Nomination Commission (and coincidentally are appointed by the governor) — is at the centerpiece of the Legislature’s and the governor’s attempts to reshape Montana’s judiciary. In Montana, judges are elected, and the appointment process only comes into play when there is a vacancy between elections. HB 395 (Rep. Barry Usher, R-Billings) will reduce the independence of the judiciary and make it more likely to be partisan. The bill requires Supreme Court candidates to run in districts, rather than “at large.” That will have the effect of preventing qualified judicial candidates from running for the Supreme Court and will prevent Montanans from being able to vote for all of the candidates. A similar law passed in 2011 was ruled unconstitutional, and HB 395 has already been challenged. A number of bad ideas failed to pass, including a bill that would have required judges to run for office with a partisan label and a bill that would have allowed for aggrieved parties to accuse The Judiciary judges of malfeasance (an impeachable offense) if they were not satisfied with the ruling or order

The fundamental doctrine establishing the of the judge. separation of powers implicit in our constitution Because of the current makeup of the

Legislature and the strong inclinations of the governor, the court system will play a critical role over the next decade in assuring that Montana’s environment is protected. Only time will tell whether the judiciary will preserve the important environmental protections guaranteed by Montana’s Constitution or whether it will also fall to the majority party’s attack on good government and the separation of powers.

Citizen Participation

State Agencies

Several bills were passed that took power away from state agencies and put it into the hands of the Legislature, and a number of others ultimately failed to pass but are likely to be considered in future legislative sessions.

Most notable, SB 227 (Sen. Steve Fitzpatrick, R-Great Falls) allows the Legislature to repeal (by a simple majority vote) any regulation promulgated by state agencies. The bill provides that the Legislature can repeal administrative agency rules through a resolution and, because resolutions do not require the governor’s signature, it entirely removes the governor from the process. This bill was one of the first that Gov. Gianforte vetoed, but his veto was overridden unanimously by the Legislature. It will now be an incredibly cumbersome and uncertain process to develop rules to effectively carry out legislation and the day-to-day functions of state agencies, while simultaneously trying to satisfy the whims of a legislative majority.

A few bills failed that would have made life difficult for state agencies. The worst was SB 323 (Rep. Chris Friedel, R-Billings), which would have required legislative approval for any rule that was estimated by a state agency to have an economic impact greater than $1 million. Because virtually all agency rules apply statewide and an economic impact of $1 million for a statewide rule is a very low threshold, this bill would have virtually eliminated rulemaking by state agencies. Remarkably, this bill passed the Senate before it died in the House.

Apparently, the Montana Legislature believes that citizen participation in state government is a right that needs to be curtailed (and in some cases eliminated). The most shocking examples of this were HB 693 (Rep. Bill Mercer, R-Billings) and SB 278 (Sen. Greg Hertz, R-Polson). These bills specifically targeted environmental and conservation organizations, aimed to harass their membership, and chill their First Amendment right to organize and petition the government. The problematic portions of HB 693 were stripped from the bill.

SB 278 passed but has been vetoed by the governor. As of the time of writing this article, whether the Legislature would be able to override the veto had not been determined. It would have required that every 501(c)(3) organization that initiates a court action against the government file a list with the Attorney General within a month of challenging a government action naming every individual and entity that had donated over $50 to it over the past year. If allowed to go into law, this bill would have effectively made the membership lists of environmental organizations public. The bill also contained a companion tax provision that would have taxed funds used by 501(c) (3) groups to challenge government actions. Gov. Gianforte did the right thing and vetoed the bill, stating that “the First Amendment protects donors and prohibits targeting them. Montana’s charities play an invaluable role in the betterment of Montanans and their communities. SB 278 undermines that role.”