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March 3, 2023

Today, March 3, the 45th legislative day of the 68th Montana Legislature, marks this session’s halfway point and the transmittal deadline for general bills. Any bill that isn’t a resolution, doesn’t pertain to the budget or propose a ballot issue — that is to say, most of them — had to receive an affirmative floor vote in its chamber of origin by this deadline. In other words, bills proposed in the Senate needed to pass out of the Senate and to the House, and vice versa. Those proposals that don’t pass or don’t meet the deadline are presumed dead. 

The deadline created a bill bottleneck this week as lawmakers rushed to get their legislation passed ahead of the cutoff. In total, the House and Senate debated 319 bills on the floor between Wednesday and Thursday. The last legislative business of the session’s first half finished up Friday morning.

In recognition of this major legislative mile marker, today’s edition will feature an expanded bill report noting key votes on major legislation over the last three days.

Lawmakers are now taking a break until Thursday, March 9. Capitolized is also taking a brief vacation: There won’t be a Tuesday edition next week, but we’ll be back on Friday, March 10.

—Arren Kimbel-Sannit

Remapping the Public Service Commission

The Montana Senate Thursday evening passed a redraw of the state’s Public Service Commission districts that, if enacted, would replace a court-ordered map drawn last year. 

Senate Bill 109 would divide the commission’s five districts based on the reapportionment of Montana’s 100 state House seats that the state’s independent redistricting committee finalized earlier this year. Each PSC district would comprise 20 House districts and heavily favor Republican candidates for the commission, which regulates monopoly utilities in the state. Unlike legislative and U.S. House districts, which the Montana Districting and Apportionment Commission draws every 10 years, the shape and population of PSC districts are the purview of the Legislature. 

But that arrangement proved to be problematic. By the 2021 session, lawmakers hadn’t updated the PSC map in 18 years. As a result of that — and Montana’s prodigious but unevenly distributed population growth — the commission’s southwestern district had eclipsed its Hi-Line district by more than 50,000 people by 2021. By the end of that year, a group of Montana residents including former Republican Secretary of State Bob Brown challenged the map on 14th Amendment grounds, arguing the population disparities between districts violated the principle of one person, one vote. 

A panel of federal judges eventually concurred, ordering the adoption of a new map that brought the maximum population deviance between counties to a presumptively constitutional 5.5%. The court acknowledged it did so reluctantly, and made clear that the Legislature had the authority to draw a new map the next time it met. 

Kalispell Republican Sen. Keith Regier’s SB 109 began its life this session with two aims: endorsing the court-approved plan and adding language to statute mandating that the Legislature review and adjust PSC districts after each decennial census for compliance with the U.S. Constitution. 

But that changed on the evening of Feb. 28, only a few days before the Legislature’s bill transmittal cutoff, when the Senate Energy and Telecommunications Committee approved an amendment from Regier that redrew the five districts despite opposition from committee Democrats. 

Regier’s amendment, instead of following county boundaries, allocates 20 state House districts to each PSC district. The resulting plan splits several Montana cities — most of which lean Democratic — between districts. And it extends the southwestern third district deep into central Montana, all the way to Winnett and beyond. Several districts have appendages that jut out in unconventional ways, which Regier said was necessary to obtain equal populations. The maximum population deviation in Regier’s plan would be 1.5%. 

On the court-approved map, western Montana’s district four and the southwestern district three would both lean Republican by a couple of points. All current commissioners are members of the GOP. Under the Regier plan, both districts would become significantly more Republican. 

Regier said in committee he was waiting until Montana’s secretary of state signed off on the state House districts to introduce the new PSC plan, which happened earlier in February. And he maintained he didn’t look at political data as he drew the maps.

“​​That would make the population as equal as the redistricting commission made them,” he said. “That means that the chance of the districts being over and underpopulated in the next 10 years would be slim.” 

But Democrats cried foul about the number of urban divisions. 

“I know you know that there are a lot of ways these districts could have been grouped,” Sen. Janet Ellis, D-Helena, told Regier on the floor Thursday. “One of the concerns I have, as you know, is this splits 14 counties, and almost all major cities in the state. It seems like there were other goals besides population equity.”

For legislative districts, Democrats said, the Constitution mandates that they be compact and contiguous as well as equal in population. During the legislative redistricting process, Republicans repeatedly criticized the eventual map for odd-shaped districts and split communities of interest. Now, those qualms seem to have disappeared. 

“Many in this body asked the Districting and Apportionment Commission … to avoid splitting cities and towns, and to create the most compact map possible,” Sen. Andrea Olsen, D-Missoula, said Thursday. 

But Regier maintained that those constitutional provisions have nothing to do with PSC districts. The only requirement is that they are as equipopulous as practicable. And even as Republicans a few weeks earlier had complained about cities being split between legislative districts, Regier said it’s beneficial for cities to be split between PSC districts. 

“We’re talking about PSC districts,” he said. “A lot bigger. We’re not talking about small House districts. It’s an advantage to a city to have two commissioners answer to them.”

One potential wrinkle: Montana GOP Chair Don Kaltschmidt has threatened to sue over the new legislative districts. If that suit goes forward and is successful, Regier will have based his maps on potentially illegal legislative districts that he himself previously opposed. 

Regier’s amended SB 109 passed on a 30-20 vote on the Senate floor Thursday. It still needs approval by the state House and the governor.

—Arren Kimbel-Sannit

By the Numbers

Number of bills lawmakers debated on the House and Senate floors on Wednesday and Thursday.

Bill Report

  • Senate Bill 419, which passed the Montana Senate Thursday, would ban TikTok from operating its social media platform in the state. Supporters argued the Chinese-owned platform encourages dangerous stunt challenges and jeopardizes national security by letting the Chinese government collect data on Montanans. The bill passed with support from 28 Republicans and two Democrats and now advances to the Montana House.
  • House Bill 288 passed a House floor vote and was referred to the House Appropriations Committee Wednesday. The bill would update the state’s American Indian tuition waiver requirements to allow descendants of tribal members in Montana to apply. Bill sponsor Rep. Jonathan Windy Boy, D-Box Elder, amended the bill after it was tabled early in February. In the original version, Windy Boy wanted to open the waiver to any Native student who could claim tribal descendancy from any of the 574 federally recognized tribes in the U.S. 
  • House Bill 649 passed second reading in the House by a broad margin, 65-35. The bill, sponsored by Rep. Mary Caferro, D-Helena, would fund Medicaid provider rates at the standards identified by a 2022 state-commissioned study conducted by the consulting firm Guidehouse and account for annual inflation. In her remarks on the House floor, Caferro framed the bill as an investment in the state’s largest industry, rural and urban communities, and an essential workforce caring for some of Montana’s most vulnerable citizens. Recent nursing home and behavioral health care closures loomed over the Thursday night floor debate. “We don’t have time to work on this. I guarantee you that there are nursing homes all over the state that are watching what we do here, literally, today,” said Rep. James Bergstrom, R-Buffalo. “And they’re going to make decisions on whether they’re going to get out of the business or stay based on what we do here.” The bill has been referred to the House Appropriations Committee.
  • Senate Bill 337, sponsored by Sen. Theresa Manzella, R-Hamilton, was rejected by the Senate on its final vote Thursday. The bill proposed to add a specified list of nearly a dozen parental rights to Montana law, including guaranteed access to all of a child’s academic, medical and counseling records. SB 337 cleared its first vote in the Senate Thursday 28-22, but failed a second motion hours later when three Republicans — Sens. Chris Friedel of Billings, Bruce Gillespie of Ethridge and Jason Small of Busby — changed their votes to join the opposition, resulting in a 25-25 deadlock.
  • A trio of bills crafted by the Legislature’s Joint Select Committee on Election Security all cleared the Senate Thursday with bipartisan support. Senate Bill 481, sponsored by select committee chair Sen. Carl Glimm, R-Kila, would require counties to collect and retain vote tabulating machine files called “cast vote records” that have been the subject of considerable scrutiny among election skeptics. Senate Bill 482, also carried by Glimm, would mandate that counties conduct tests designed to detect potential manipulation of voting machines before and after every election. The former passed with only one opposing vote, from Sen. Wendy McKamey, R-Great Falls, while the latter was approved by 33 Senate Republicans and five Democrats. The committee’s third bill — Senate Bill 498, sponsored by Sen. Shane Morigeau, D-Missoula — seeks to implement regular maintenance of county absentee voter lists through the use of mail notifications. It passed the Senate unanimously.
  • Senate Bill 465, legislation sponsored by Sen. Jeremy Trebas, R-Great Falls, that would impose work requirements for some people on the state’s expanded Medicaid program, died in dramatic fashion on the Senate floor Thursday evening following a 24-26 vote. States were permitted to attach such conditions to their Medicaid programs under waivers approved during the Trump administration. But court decisions and a Democrat in the White House led to those waivers being rescinded. In other words, opponents warned, imposing work requirements could jeopardize Montana’s participation in Medicaid expansion, possibly leaving the state on the hook for the entire cost of the program. Along with all Democrats, 10 Republicans — including some, like Sen. Greg Hertz, R-Polson, who initially opposed Medicaid expansion in Montana — voted against the bill. 
  • The defeat of Great Falls GOP Rep. Scot KernsHouse Bill 595 on the floor Thursday marks a significant blow to legislative Republicans’ judicial agenda this session. Lawmakers proposed a series of bills this session that either mandated or allowed candidates for the judiciary (and in some cases, other nonpartisan positions) to run with party labels, a response to the politics of the 2022 race for Montana Supreme Court.  Each bill died, either in committee or on the floor. Kerns’ proposal was the last to go up for a vote, but some Republicans teamed up with Democrats to kill the bill 46-54. As the legislative saying goes, though, no idea is truly dead until sine die, and several other Republican judiciary bills did make it through the first half of the process. 
  • About 20 Republicans sided with most Democrats in voting down a trio of bills by Rep. Paul Fielder, R-Thompson Falls, that sought to give the Montana Fish and Wildlife Commission explicit guidance as to when and where wolf trapping and hunting black bears with hounds can happen. The representatives who opposed House Bill 627, House Bill 628 and House Bill 630 said they feared the measures would throw a wrench in Gov. Greg Gianforte’s efforts to return grizzly bears — which are currently federally protected — to state management.

Heard in the Halls

“Today I’m proud to stand up and say that I’m for educational freedom and that I am standing for the rights of parents. I’m going to leave financial literacy in the hands of the home unit.”

Rep. Derek Harvey, D-Butte, jokingly mimicking Republican arguments for parental rights in education during his opposition Thursday to House Bill 535, a proposal that would define in state law how public schools teach financial literacy. House lawmakers ultimately passed the measure largely along party lines despite bipartisan concern that educational content standards are typically defined through agency rulemaking, not through state law.

Transmittal Tactics

One of the most sweeping and lengthy bills to surface in the week before the transmittal deadline — perhaps in the history of the Legislature — was Senate Bill 458, a more than 60-page proposal that would affect a protracted list of state agencies, local and county governments, schools, prisons, political party committees, anti-discrimination laws, cemetery interments, marriage licenses, drivers licenses, vital records, and probably many more areas that Capitolized, unfortunately, doesn’t have space to list.

In a nutshell, SB 458, sponsored by Sen. Carl Glimm, R-Kila, and largely conceived by conservative policy architect and Montana Family Foundation President Jeff Laszloffy, would define “sex” in Montana state law based on a person’s reproductive characteristics. 

The strictly gamete-based definitions of male and female, Laszloffy testified to a Senate committee this week, are meant to clear up any confusion about sex, gender and how to distinguish males from females. (Based on the wide-ranging testimony that followed, touching on everything from avocado trees to endocrine systems to chromosomes, it appears the bill has not resolved all confusion.) 

One probable outcome of SB 458, if it becomes law, would be the erasure of accurate legal categorizations for intersex, transgender, nonbinary and two-spirit Montanans. And, after a packed and intense hearing Monday night, the proposal could have made for one of the most interesting policy debates on the Senate floor this week. 

But instead of appearing on any of the Senate boards for Tuesday, Wednesday or Thursday, SB 458 was instead routed to the Senate Finance and Claims Committee. While it’s reasonable to expect a stack of substantial fiscal notes to attach to the bill, based on the number of impacted agencies, punting SB 458 to a budget committee also gives it a longer lifespan. That could have been a tactic of either the proponents or opponents — whichever group figured they didn’t yet have the votes to pass or kill the bill on the Senate floor.

—Mara Silvers

Vote Viz

Democrats and a coalition of Republicans teamed up to kill Senate Bill 465, legislation that would impose work requirements for some people on Montana’s expanded Medicaid program despite the Biden administration withdrawing waivers that allowed for such restrictions. The legislation’s enactment could have resulted in the federal government pulling its share of the state’s Medicaid costs, opponents warned. 

—Arren Kimbel-Sannit

On Background

Federal judges order new map for 2022 utility board election: For background on the legal challenges dogging PSC districts, check out this story from last year. (MTFP)

Bill creates strict definition for ‘sex,’ legally sidelining intersex and transgender people: To better understand the Legislature’s expansive sex definition bill, see this story about the proposal’s emotional hearing. (MTFP)
Legislature reaches its 2023 midpoint: Confused about what transmittal means? We explained the why, how, and how many in a story this morning. (MTFP)