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Montana’s next attorney general will be in the driver’s seat for influential legal fights, addressing the state’s ongoing drug and alcohol use issues and helping local officials handle crime.
Previous attorneys general have approached those duties with their own political philosophies and legal priorities. Depending on the November outcome of the race between Republican Austin Knudsen and Democrat Raph Graybill, the philosophy and priorities of Montana’s next attorney general could be dramatically different.
The race is between two young attorneys, both fifth-generation Montanans, with distinctive professional experiences.
Graybill, originally from Great Falls, has worked as Gov. Steve Bullock’s chief legal counsel since 2017, clinching wins for conservation easements and campaign finance regulations in state and federal court, as well as losing an argument against public funding for private religious schools in front of the U.S. Supreme Court this year. Graybill attended Columbia University and the University of Oxford, where he was a Rhodes Scholar, before graduating from Yale Law School in 2015.
Knudsen spent the bulk of his recent professional life representing his hometown of Culbertson in the state Legislature between 2011 and 2017, where he also served two terms as Speaker of the House. He was elected as Roosevelt County Attorney in 2018 before launching his campaign for attorney general in May 2019. Knudsen graduated from Montana State University and the University of Montana School of Law.
Both contenders have private sector and law enforcement experience. Knudsen was previously a private attorney in Plentywood and Culbertson. Graybill was working at a corporate law firm in Seattle when he was offered his current position on Bullock’s staff. In college, Graybill spent four years as an auxiliary officer with the New York City Police Department. Knudsen has been a prosecutor for roughly two years.
When it comes to legal and political priorities, the candidates share little common ground.
Knudsen is largely campaigning on battling the spread of methamphetamine and related crime in Montana. In an interview with Montana Free Press, he said his primary method for combating meth use in the state would be to sign on to President Donald Trump’s legal fight to build a wall along the U.S.-Mexico border.
“Until we can secure that southern border where this is all being smuggled in from, my analogy is we’re treating a bleeding flesh wound with a Band-Aid,” Knudsen said. “Yes, interdictions are important and yes, drug dogs, more highway patrol,” he continued, referring to ongoing local and state strategies. “We know all of those things have helped. We’ve seen some big busts — but how many of those big shipments are we not getting? And they’re coming into the state anyway. So that’s a big concern of mine.”
Meth use in Montana has increased over the last several years, according to reports from the Montana Board of Crime Control. Data collected in November 2019 and during the spread of COVID-19 shows positive meth tests in Montana increased by 33% during that time, according to a study from California testing lab Millennium Health. Substance use in general was described as a “major contributor” to crime by the office of current Attorney General Tim Fox in a 2017 report.
The attorney general’s office can be influential in developing statewide law enforcement and addiction-prevention strategies, and oversees the Montana Highway Patrol. But Knudsen’s critics, including Graybill, have pointed out that drug enforcement and policing often takes place at the local level, and that the state is limited in how it can help fund sheriffs and police departments.
While Knudsen’s campaign is leaning into a conception of Montana’s attorney general as the state’s top cop, Graybill is focused on marketing his potential as the state’s top lawyer. Specifically, Graybill often pledges to defend Montanans’ health care coverage derived from the Affordable Care Act and protect consumers’ pocketbooks through litigation against pharmaceutical companies.
“Every single one of us pays too much for prescription drug prices,” Graybill said in a recent interview with MTFP. “I will have to go to Walgreens this week and pick up prescriptions … and I’ll pay too much because companies are illegally inflating prices. And I have a right against being stolen from. And if I, as attorney general, can go out and help recover that money for Montanans, I would call that tangible. Nothing more tangible than money in your pocket.”
Graybill has also been a vocal proponent of the Affordable Care Act, which the U.S. Supreme Court is set to examine again days after November’s election. The case, brought by several Republican state attorneys general, argues that recent congressional tax reform has made the ACA unconstitutional.
Knudsen has said Montana should have signed on in support of the lawsuit, and that Attorney General Fox’s unwillingness to do so is one of the factors that spurred him to enter the race. He’s also dismissed Graybill’s decision to focus on prescription drug prices in his campaign, asserting that it’s not an issue most Montanans are concerned about.
“This is what happens when you sit in Helena and never get outside of the cocktail circuit bubble,” Knudsen said in a recent debate hosted by MTN News. “This is not what Montanans are talking about. It’s just not,” he said, referring to prescription drug prices.
“Montanans are concerned about crime. They’re concerned about drugs,” Knudsen said.
The race was labeled a “toss-up” by the Cook Political Report in June, having previously been categorized as “lean Republican.” In the most recent campaign finance data from September, Graybill has outraised Knudsen by more than $250,000, and outspent him by more than $175,000.
That financial support varies by geographic location. Roughly 62% of Graybill’s individual donations came from Montana addresses, compared to 91% of Knudsen’s. Knudsen’s donations are also more evenly distributed across the state, including the northeastern portion, whereas Graybill’s have predominantly come from western Montana.
The candidates have also received a range of support from political interest groups. Knudsen has taken maximum donations from federal political action committees representing oil and gas interests, timber and land developers and the tobacco industry. Graybill, who has pledged not to take direct donations from corporate PACs, has received maximum committee contributions from labor unions, public education associations and a national progressive PAC called The Next 50 that supports young people engaging in politics.
In a recent press conference, Graybill criticized Knudsen for accepting two maximum donations from Reynolds American Inc., one of the largest tobacco companies in the country, saying the $720 in contributions presents a conflict of interest regarding ongoing litigation brought by Attorney General Fox. In April, Fox sued the tobacco industry, including a subsidiary of Reynolds American, for failing to pay $43 million owed to Montanans under the 1998 Master Settlement Agreement.
Knudsen declined to respond to Graybill’s challenge to return the tobacco industry money. He also did not answer a question from MTFP about whether he would appoint an independent counsel to handle the case and remove himself from the proceedings. Rather, he said, his first step regarding the litigation would be to remove one of the lead trial attorneys on the case, David Paoli, of the Paoli & Leisher law firm in Missoula, whom the DOJ has retained.
In an email, Knudsen said he would replace Paoli with internal staff attorneys in an effort to manage costs, while also calling Paoli a “liberal trial lawyer megadonor.” Paoli has donated the maximum allowable amount to Graybill’s campaign in the primary and the general election.
Asked to comment on Knudsen’s proposed removal of Paoli, a spokesman for the Department of Justice issued a statement in support of Paoli, who has been involved with litigation against the tobacco industry since 1998.
“Montana is up against large corporations with limitless funds, and with this team, Montana has thus far been able to hold them accountable to the agreements they made,” the statement said. “To suddenly scrap a successful litigation strategy in an ongoing, highly complex legal case would jeopardize Montana’s claims to big tobacco’s advantage.”
The responsibilities of the attorney general’s office are wide-ranging and complex.
The Department of Justice is made up of roughly 800 employees divided among eight departments, including the Department of Criminal Investigations and the Office of Consumer Protections. In certain circumstances, the attorney general can issue legal opinions that have the weight of law. The officeholder is also a member of the state Land Board, which oversees state land management to help fund public schools. At any given time, the attorney general may dispatch staff to assist local prosecutors with litigation or decide to join a national lawsuit with other state attorneys general.
With such wide-ranging responsibilities, the budget for the Department of Justice is a substantial $113 million, out of the approximately $7 billion overall state budget for 2020, according to the Legislative Fiscal Division. Knudsen and Graybill have clashed over how to manage the allocation of those funds, which have grown approximately 27% since 2013. Knudsen has promised to cut “bloat” from the department’s workforce in Helena, a trend he often attributes to the Central Services Division, the branch that handles human resource and payroll matters for the entire department, as well as the Motor Vehicle Division.
Between 2013 and 2021, the budget for CSD has increased by roughly $1.3 million, in part because of its new role in managing a statewide sobriety program. But CSD still accounts for less than 2.5% of the overall DOJ budget, according to data made available by Department of Justice spokesman John Barnes. The divisions with the largest budgets remain the Montana Highway Patrol, which has increased by more than $12 million in the same time period, and the Motor Vehicle Division. MVD’s budget has had a net decrease of more than a million dollars during the last eight years. Barnes clarified that MVD remains a source of revenue for the state, partly through administrative and licensing fees.
Graybill has rejected Knudsen’s pledge to cut budget lines and reallocate resources. In addition to maintaining existing programs and operations within the DOJ, Graybill said, he would advocate more funding from the Legislature to expand enforcement, treatment and prevention services for Montanans struggling with substance use disorders. Graybill said such funding is crucial for continuing the state’s criminal justice reinvestment efforts from 2017.
“You do have to make a serious commitment as a society to putting money into reentry and money into diversion and money into treatment,” Graybill said. “That’s really expensive and it’s really politically hard. And I think the attorney general has a unique role there, and I’d like to be a leading part of that conversation in the 2021 Legislature.”
Knudsen has also expressed support for rehabilitative programs and treatment courts, but maintains that his focus as attorney general would be on enforcement.
Before either Graybill or Knudsen has the chance to advocate for funding or reforms at the Legislature, they’ll have to win over voters with their vision of how to run the Attorney General’s Office for the next four years.