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HELENA — Much of what happens in the Montana Capitol does in fact look like something out of a high school civics textbook.
Bills are introduced in one of the state Legislature’s two chambers, the House or Senate. As legislative committees consider their merits, citizens and lobbyists have a chance to weigh in at public hearings. Measures are debated, sometimes amended, and put to votes. If bills pass muster in their first chamber, they’re transmitted to the other for another round of scrutiny. If they survive that second look, it’s on to the governor’s desk for his signature or veto.
But when push comes to shove in the closing days of each biennial legislative session, that textbook process — designed to help the Montana public keep tabs on what its government is doing — often ends up tossed out a Capitol window.
As the 2019 session enters its homestretch, statehouse maneuvering is focused particularly on so-called companion bills, nominally tools for fine-tuning the state budget. However, companion bills are increasingly seen — and criticized — as overly convenient vehicles for lawmakers and the governor to shoehorn in last-minute provisions as they haggle over priorities, such as state preschool, that they haven’t been able to make happen in other ways.
Companion bills, which contain supplemental provisions for the state budget bill, House Bill 2, are generally voted through much of the legislative process as essentially blank documents, then filled with provisions late in the game. At times, they’re used to implement last-minute deals or resurrect legislation that has been voted down. In one case this session, legislators tried to amend a companion bill to tie stalled DUI enforcement legislation to a separate measure designed to boost efforts to find missing Native American women — a potential violation of the state Constitution’s “one subject” requirement for legislative bills.
Those tactics frustrate even veteran lobbyists whose business is keeping tabs on Capitol maneuvering — never mind average citizens trying to track the sausage-making.
Writing in a Billings Gazette column April 19, lobbyist Jon Metropoulos, who represents among other interests several insurance companies and the Montana Association of Oil, Gas & Coal Counties, railed against the way companion bills are being employed. A “small cabal,” he wrote, is using them to “circumvent the work and decisions of committees by passing innocuous one-page bills… then putting language from previously-rejected bills into them and forcing it back through the process.”
“Unless your elected official is one of a small number of favored people with access to the powers that be, the lawmaking process excludes them and, therefore, you,” Metropoulos wrote.
The last-minute maneuvering of companion bills “smacks of smoke-filled rooms and backroom deals,” said former Democratic state lawmaker Dave Wanzenried.
“Horse trading is part and parcel of what happens in Helena,” he said. “But the clarity of it gets lost.”
“You don’t know what is going to be in that bill until the end,” Bigfork Republican Sen. Bob Keenan said in a recent interview on the Montana Lowdown podcast. “And so then you have six people sitting around a table and throwing things into this bill with no public testimony.”
Other lawmakers, though, say they’re just doing what’s necessary to complete the public’s business before the clock runs out on the session.
“Transparency? You try to be as transparent as you can with two days left,” said Rep. Llew Jones, R-Conrad, who as a leader of the moderate Republican Solutions Caucus is central to much of the Legislature’s dealmaking.
A lot of the grumbling, he said, is coming from people who just aren’t getting their way.
“It’s always amazing,” he said. “The people that don’t like an idea argue that it’s not a transparent process. The people that seem to like it find the process perfectly transparent. And then on the next bill, when they don’t like it, it’s not transparent.”
He continued: “Transparency is very much in the eyes of the beholder.”
Even so, public participation was on the minds of the framers of Montana’s 1972 Constitution, which gives Montanans the explicit right to observe the deliberations of the Legislature and other public bodies, articulating the public’s right to know what its government is doing alongside such fundamental rights as freedom of religion, assembly, and speech.
The Constitution’s framers also required the Legislature to maintain a straightforward process, specifying that “Each bill, except general appropriation bills and bills for the codification and general revision of the laws, shall contain only one subject, clearly expressed in the title.”
The intent, said former lawmaker Wanzenried, was to keep legislators from bundling unrelated ideas together, a la federal omnibus bills, instead of considering each idea on its own merits — and also to make it easier for the public to understand what’s going on.
The pressures of lawmaking, though, sometimes bend Montana’s “one subject” rule. For example, the 2017 provision that funded a state preschool program — a priority for Gov. Steve Bullock — passed with a last-minute modification to a bill, House Bill 639, titled “Revising funding for healthcare services.” In addition to allocating $6 million to the preschool program (housed within the Department of Public Health and Human Services instead of the Office of Public Instruction) the bill modified the reimbursement rates paid to doctors by the state Medicaid program and assessed fees on hospitals.
“There was no notice whatsoever” of the preschool provision’s attachment to HB 639, said Eric Feaver, a longtime lobbyist and the president of the Montana Federation of Public Employees. “It just happened.”
Companion bills like HB 639 are a new addition to the legislative process over the past decade, longtime legislators say, and evolved out of an effort to segregate policy statutes from the agency funding allocations in HB 2. Their scope, however, has broadened over the years.
Legislators and staff say matching the intricacies of a developing budget with the legislative process is no small challenge. For example, the state doesn’t yet know exactly how much money it will collect in income taxes over the coming biennium, meaning the budget has to be based on revenue estimates that change as fresh economic data becomes available over the course of the 90-day legislative session.
Additionally, Montana’s 150 lawmakers come to Helena with their own ideas for the budget, many of them proposing bills that would spend money on new programs or tweak the tax code. As of March 23 this year — two-thirds of the way through the session — the Legislative Fiscal Division was tracking nearly 80 bills that could impact the budget, with no way of knowing which ones might become law.
That leaves the budget bill with loose ends as the session comes to a close.
The Legislature could deal with those loose ends by sending the budget bill to a conference committee, the same process used to hammer out compromise when the House and Senate approve policy bills in different forms. But conference committees are small — just three representative and three senators — and wield enough power over a bill’s final form that lawmakers are hesitant to trust one with the $10 billion-plus of House Bill 2.
“Something could be put in that could destabilize the entire budget,” Jones said.
Enter companion bills, which give legislators a tool for making last-minute budget adjustments. One of this year’s most significant companion bills, for example, is Senate Bill 352. It was introduced by Senate Majority Leader Fred Thomas, R-Stevensville, March 22 with a broad title — “Generally revise laws related to the state budget” — and 14 lines of language specifying a token $100 fund transfer. It passed the Senate in that essentially blank form before landing in the House Appropriations Committee, which replaced the entirety of the bill with 30 new sections of budget measures, among them $1.1 million for a Montana Highway Patrol drug interdiction team.
The bill was then passed by the House and sent back to the Senate, which voted to send it to what’s known as a “free conference committee.” While standard conference committees are limited to adjusting only the differences between House- and Senate-approved versions of a bill, free conference committees have broader latitude. Given SB 352’s vague title, committee members Sens. Thomas, Ryan Osmundson, and Jon Sesso, and Reps. Carl Glimm, Nancy Ballance, and Ryan Lynch are free to reconfigure big chunks of the state budget when they meet April 24.
Jones said that approach exposes less of the budget to potential changes than sending HB 2 to a conference committee in its entirety would. In any case, the conference committee version of the bill will be subject to a final vote by the full House and Senate and must also pass muster with the governor.
Even so, Jones acknowledged the bill could be subject to wheeling and dealing.
“Will there be some last-minute ideas offered? There always have been. I would be surprised if they aren’t offered again,” he said.
Another companion bill, House Bill 685, triggered one of the session’s more tense moments in an April 13 committee hearing. Like SB 352, it started life as an essentially blank bill, passed through the process so lawmakers would have a measure to repurpose for late-breaking ideas after the Legislature’s March 25 deadline for introducing new appropriation bills.
On April 13, select members of the Senate Finance and Claims Committee jumped on the blank bill as a way to revive a DUI law overhaul, Senate Bill 65, that had been tabled in the House Judiciary Committee the day before. In an amendment requested by SB 65 sponsor Sen. Keith Regier, R-Kalispell, they sought to replace the placeholder contents of HB 685 with the text of SB 65, plus the language of two bills designed to help locate missing Native American women, one of them Democratic priority House Bill 21, or Hanna’s Act.
The maneuver angered several committee members, who argued vehemently against linking the issues. Lobbyist John MacDonald, who represents the Montana Newspaper Association among other entities, interrupted committee chair Sen. Ryan Osmundson, R-Buffalo, to request that the public be given a chance to weigh in on the amendment.
“It’s shameful that we would tie a DUI bill that’s died in the House and leverage the lives of Native American women to get this agenda passed,” said Sen. Tom Jacobson, D-Great Falls.
“I need to vote for Hanna’s Act. I cannot do it with this DUI section in it,’ said Sen. Susan Webber, D-Browning. “They should go on their own merits.”
The committee ultimately voted to amend only the DUI language into HB 685. That effort to give the DUI measure a second life then fizzled after the reanimated bill missed a Senate transmittal deadline. Hanna’s Act cleared its last legislative hurdle in the Senate April 16.
“The danger in companion bills is they frequently aren’t well followed by the public — lobbyists too,” said Feaver, the public employee union president.
“For instance, if we were to make a deal with the governor on Pre-K, where would we have a hearing?” he said. “I’m very troubled by that.”
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Part of the transparency challenge, Jones said, is that the Legislature tends to do things at the last minute — only when the ticking clock forces different factions to compromise.
“As the thing reaches its deadlines, you see people rethinking what success looks like. Or recognizing that they can’t achieve this level of success, but maybe this is OK,” he said.
“Companion bills exist, and they make sense,” said House Minority Leader Casey Schreiner, D-Great Falls. “I think we need tighter parameters about what we can put in them, as far as policy is concerned.”
Legislative leaders say they’ve made an effort this year to hold hearings when bills undergo major amendments, but legislative rules aren’t particularly clear about when those hearings have to be held. With the April 13 DUI amendment spat in Senate Finance and Claims, for example, members of public attending the committee meeting were given a chance to step to the podium and weigh in — after lawmakers had cast their votes.
“Things are moving so fast I don’t think you can ever have enough transparency,” said Keenan, the Bigfork Republican.
“It’s never going to be perfect,” he added. “It is complicated up here.”