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February 3, 2023
The Montana Legislature — really, American state and federal legislative bodies in general — operates according to a series of rules and traditions.
Among these is that a center aisle bifurcates legislative chambers according to the country’s two major political parties. In theory, Republicans sit on one side of the chamber and Democrats sit on the other. In Montana, the size of the Republican supermajority and the limits of physical space mean this isn’t quite true — in the House, for example, Republicans sit on one side of the aisle and occupy about half of the seats on the other side of the aisle, while Democrats populate the remaining seats.
But the basic principle of furniture tribalism still applies. Republicans sit with Republicans, Democrats sit with Democrats.
It’s a principle that one lawmaker this session, backed by a variety of figures from deep in the annals of Montana’s political history, hopes to undo.
House Bill 271, sponsored by Rep. Paul Tuss, D-Havre, would seat lawmakers in the state House and Senate alphabetically by last name, replacing the seating arrangements currently defined by party segregation and hashed out by legislative leadership with statutory direction. Tuss told the House Legislative Administration Committee this week that he believes breaking the partisan seating divide could help lawmakers broker more effective relationships with one another — and pass more effective legislation — regardless of whether “R” or “D” follows their name.
“Though perhaps a little different than the other legislation we’re used to considering this session, I firmly believe this bill will make all other legislation in future legislative sessions better by making our deliberations less partisan,” Tuss testified. “Overwhelmingly, Montana residents want us as legislators to heed their call to legislate in a bipartisan manner.”
The idea garnered support from members of Montana’s political old guard who participated in — or at least, remember — the state’s 1972 Constitutional Convention, where delegates were seated by surname.
“Montana’s Constitutional Convention sat alphabetically as it attempted to deal with each issue on its merits,” delegate Arlyne Reichert testified in writing. “Although there were heated debates, after lengthy discussions, we were able to come together and complete the task. All 100 delegates, Republicans, Democrats and Independents signed the Constitution at the end of the Convention. Unlikely friendships bloomed, and the seeds of mutual respect were planted.”
It’s time, she wrote, for the Legislature to go back to its “ABCs.”
The current arrangement of the body encourages animosity and opposition, others testified.
“Have you ever noticed that when two people sit at a table, they often choose chairs on opposite sides? This is automatically adversarial in terms of territory — the kind of seating arrangement that divorce attorneys and their clients typically adopt,” said Mick Ringsak, a longtime Butte Republican politico who served as a regional appointee under President George W. Bush.
He cited his long-standing friendship with Democrat Evan Barrett — Butte’s political “odd couple” — as evidence that reframing the terms of interpersonal legislative engagement can be effective.
“It is unfortunate that we have reached a point in politics that people of opposing views getting along and working together warrants a front-page story,” he said.
The bill’s co-sponsors are mostly Democrats, though some Republicans, including longtime lobbyist-turned-lawmaker Rep. John Fitzpatrick, R-Anaconda, have signed on.
And of course acrimony between the parties is not for nothing. Lawmakers this session are debating morally weighty questions of LGBTQ rights and access to abortion, among other things.
Members of the committee seemed to engage positively with Tuss’ idea, though they identified a few current seating traditions they might like to keep. Rep. Ed Stafman, D-Bozeman, suggested an amendment that would allow the parties to designate exceptions to alphabetical ordering for legislative leaders, who tend to sit on the aisles. Additionally, he encouraged Tuss to consider that the back row or two of the chamber is usually reserved for people with mobility issues.
Lastly, he noted that one element of the bill could cause more pressing issues if passed. Its current langage calls for an immediate effective date, meaning lawmakers would have to reseat themselves in the middle of the current session. Stafman encouraged a language change that would have the bill take effect at the beginning of next session.
“I’ve gotten attached to my desk,” he said.
Eye (around) the Capitol
Former Democratic Montana Gov. Steve Bullock tends bar at Brothers Tapworks at the Confluence, the new Helena taproom he opened with his brother, Bill Bullock, on Feb. 1. Asked by Capitolized why he didn’t name the taproom Third Term — the name of the bar’s overarching LLC — Bullock said he and Bill were taken with the idea of “confluence,” both of the lives of two brothers, of different rivers and of people from different political walks of life. At the venue’s soft launch were a number of Democratic officials, but also a handful of Republicans, including Ryan Osmundson, the budget director for Gov. Greg Gianforte.
Senate Bill 73, sponsored by Sen. Tom McGillvray, R-Billings, passed the Senate Thursday, though not without losing some support. The bill would clarify state agencies’ responsibility to provide certain information to legislative auditorsand create penalties for officials who don’t comply. McGillvray said there have been increased instances in recent years in which state agencies have slow-walked their responses to requests from legislative auditors, often to the point that the desired data becomes useless. The bill passed 50-0 on second reading, a preliminary floor vote, but then 34-16 on third reading, the final threshold before the bill goes to the House. McGillvray said he believes some lawmakers reversed their votes due to confusion about whether the bill expands the type of information auditors can review. Opponents — including the state Department of Administration — have argued that the bill could expose the health records of state employees to the public eye, but McGillvray said there’s nothing in the proposal that broadens the scope of audit requests.
House Bill 303, carried by Rep. Amy Regier, R-Kalispell, passed the House Judiciary Committee 13-6 along party lines Thursday. The bill allows medical providers, health care institutions, employees and insurers to withhold services from patients on the basis of “ethical, moral, or religious beliefs or principles.” During the Monday hearing, Regier said HB 303 would help protect health care workers who don’t want to provide abortion or gender-affirming medical services to minors, as well as grow a diverse field of providers in the state. Opponents, including many of the state’s prominent health industry groups, said the bill lacks protections against patient discrimination.
In case you’ve forgotten about the Supreme Court administrator
Legislation pending before the Senate Judiciary Committee would give the Clerk of the Montana Supreme Court — a partisan, elected official — supervisory control over the court’s administrator, a position that assists the court in budgeting, payroll and other internal functions.
Senate Bill 230, sponsored by Sen. John Fuller, R-Kalispell, is the latest salvo in an ongoing conflict between Republican lawmakers and the judicial branch that in part centers on the work of the current administrator, Beth McLaughlin.
Last session, McLaughlin acknowledged deleting emails pertaining to the polling of judges on pending legislation, leading to claims by Republicans that judges were “pre-judging” the constitutionality of legislation that could come before the court and trying to cover their tracks. The dispute generated litigation over legislative subpoena powers that saw the state Supreme Court quash subpoenas for its own — and McLaughlin’s — records.
Even more broadly, the significant number of court decisions halting or striking down GOP-backed laws passed in the 2021 session has added fuel to the fire of existing Republican suspicions about the judicial branch’s impartiality. As Republicans have expanded their control in the Legislature and across every statewide elected office, the judiciary is one of the last vestiges of Montana government where the GOP doesn’t have significant overt influence.
Fuller’s bill would give the court clerk — an elected position currently held by Republican Bowen Greenwood, a former political consultant and executive director of the Montana GOP — hiring and firing power over the court administrator. Under current law, the administrator serves at the pleasure of the Supreme Court itself.
“The purpose and intent of my work here is to again bring sunlight,” Fuller testified. “There has been a lot of concern about the judicial system here in Montana. A lot of my constituents think sometimes that it’s a self-licking ice cream cone.”
The bill had no proponents testify before the committee. But bill critics representing the Montana legal system said that despite Fuller’s stated intention of strengthening the separation of powers, SB 230 does the opposite.
“This bill reaches into a branch of government and removes a vital cog in how it is run,” testified Bruce Spencer, a lobbyist for the Montana Judges Association. “I make that akin to somebody saying the secretary of the Senate is now under supervision of the governor’s office. It’s on its face causing problems with separation of powers.”
The clerk’s office, Greenwood testified, has two main functions. The first is to receive appeals and motions for court proceedings. The second is as a public information liaison that responds to requests for court documents and maintains court records.
The primary role of the court administrator, on the other hand, is to assist in the “general supervisory control” of all courts that is granted to the Montana Supreme Court in the state Constitution, according to Sean Slanger’s testimony on behalf of the State Bar of Montana, which opposes the bill.
Greenwood appeared as an informational witness — meaning, in theory, that he neither supports nor opposes the bill — but nonetheless said that McLaughlin’s job would fit neatly under his purview.
Even if that’s true, Slanger warned, the bill could infringe on the Supreme Court’s constitutionally established role to supervise the rest of the state’s judiciary.
“The clerk of court is not the proper office to assist in the general supervisory control of the court,” Slanger said.
During the drafting of the bill, legislative staff did note to Fuller the possibility of a constitutional conflict.
“As drafted, it is unclear if placing the court administrator under a position in the judicial branch that is subject to an election is an intrusion on the judicial power of the Supreme Court,” legislative staff attorney Jaret Coles wrote to Fuller.
One interesting dynamic: If the bill passes and is then the subject of litigation, the Supreme Court could again be put in a position to preside over a case concerning its own internal functions, likely fueling further accusations from the GOP.
McLaughlin did not testify at this week’s hearing. Reached by phone this week, she declined to comment.
Heard in the Halls
“We need Starship Troopers.”
—Sen. Greg Hertz, R-Polson, on Twitter, in reference to the large high-altitude balloon owned by the Chinese government seen floating over Billings this week. Some have raised suspicion that it could be a spy balloon, and a number of Montana Republican officials have suggested, with varying degrees of seriousness, shooting it out of the sky.
Court administrator says Legislature ‘misstates the facts, cries foul’: Read for background on the dispute between legislative Republicans and the Montana Supreme Court administrator. (MTFP)
Bullock brothers’ The Confluence taproom to open Wednesday on Last Chance Gulch: The Helena Independent Record’s Phil Drake was among the first to check out former Gov. Steve Bullock’s new beer-slinging operation. (Helena Independent Record)
Legislative efforts to reshape judicial procedures are gaining steam: This previous Capitolized item goes into further detail on Republican judiciary bills this session. (Capitolized)
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