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March 10, 2023

Welcome back from the transmittal break. 

Montana’s 68th Legislature began its second half on Thursday with lengthy meetings of the House Appropriations Committee, which, along with the committee’s counterpart in the Senate, will be the venue for much of the action during the next 45 days. 

Crafting a balanced budget is one of the Legislature’s constitutional responsibilities. And while billions in spending proposals moved in and out of committees in the first half of the session, it’s after the transmittal break when the real budgetary process begins. All non-budget bills were either killed or transmitted out of their chambers of origin by the end of last week. Budget bills, along with resolutions and ballot referendums, have an April 3 deadline. 

This session, lawmakers have a unique opportunity in the form of a budget surplus of between $2.5 billion and $3 billion, and no shortage of ideas on what to do with it: tax breaks, rebates, infrastructure funds, housing projects, Medicaid reimbursement rates and much, much more. By the end of the session, the money could well have provided a historic investment in state services and the economy — or a historic boondoggle. 

During the first half of the session, most of the budget work went to subject-specific budget subcommittees. But next week, the House Appropriations Committee, chaired by longtime budget whiz Rep. Llew Jones, R-Conrad, will begin digging through House Bill 2, the Legislature’s primary biennial spending vehicle. Departments will see their requests for additional staff or programs live or die. Several other regular spending bills, such as for long-term building and capital projects, will also go before the committee, along with other proposals for the ongoing budget, the surplus and various other pots of money. By the end of March, the House will hold a full-day floor session just to take votes on HB 2. 

As the second half of the session gets underway, lawmakers (and reporters) will start working on Saturdays. That begins tomorrow with a House floor session scheduled to begin at 9 a.m. The legislative calendar shows, sadly for all involved, Saturday sessions until Easter. On the bright side, Saturday sessions could allow the Legislature to adjourn earlier than anticipated. Pick your poison.

Focus on the budget aside, live bills from the first half will resurface in committees and on the floor in the opposite chamber. Debates on issues like gender-affirming health care for transgender minors and abortion restrictions will continue. 

And there’s also likely to be some increased focus on constitutional amendments. Republicans’ two-thirds legislative supermajority means they can send constitutional amendments for consideration by the voters in the 2024 election without needing the support of Democratic lawmakers. And the Constitution (or the courts interpreting the Constitution) has, on certain issues, repeatedly stymied Republican policy goals, especially in regards to abortion.

The GOP has openly acknowledged that dynamic since the beginning of the session and beyond. But they haven’t done much about it: Republicans introduced only seven amendment proposals in the first half, with one already tabled in committee. But dozens more are in various stages of drafting, and since amendment proposals have a later transmittal date, lawmakers have signaled that such bills could occupy more space in committee rooms from now on.

Rep. Bill Mercer, R-Billings, has identified at least one of those proposed amendments: providing for gubernatorial appointments of Montana Supreme Court justices, the latest in a slate of GOP-backed judiciary bills this session. Any amendment would need not only to gather 100 votes across the Legislature, but also to receive approval from voters. 

“You will be seeing a constitutional amendment proposal in the second half which will seek to place on the ballot a proposal that Supreme Court justices be appointed by the governor and confirmed by the Senate,” Mercer said at a press conference following adjournment on transmittal day. “That’s something to look for, and I think we will have other constitutional amendments that may encroach on that subject.”

—Arren Kimbel-Sannit

What’s Next

In lieu of our standard bill report, Capitolized asked Montana Free Press staffers what they’re watching for in the session’s second half:

  • Heading into the second half of the session, I’ll be interested to see how the debate plays out in the House over a trio of election law changes proposed by the Joint Select Committee on Election Security and passed by the Senate just ahead of transmittal. Outside of the committee’s work, House Bill 774 was a late addition to the first half of the session and would consolidate all elections in Montana (federal, state, local, special district, etc.) on the same ballot in even-numbered years. As it moves through the appropriations process, I’ll be watching to see whether lawmakers there heed the cautionary words of critics in the House and take the slow road of an interim study on the issue, or embrace the proposal as-is with an amendment here and there. And on the education side, not only will we be seeing continued action on early childhood literacy, teacher pay and school choice, but we’ll start to see a more crystalized picture of how the Legislature plans to fund K-12 instruction over the next two years. —Alex Sakariassen, education and election administration reporter 
  • In the second half of the session, l’ll be keeping close tabs on House Bill 642, which seeks to change the “combined appropriations” rule that the Department of Natural Resources and Conservation uses to determine which wells are spared the rigor of a groundwater permitting process. The Montana Water Use Act that first established a framework for exempting wells has been the subject of some big legislative fights in the 50 years since its adoption, and I expect the scrap over Republican Rep. Casey Knudsen’s bill will be no different. For confirmation, one need look no further than the House Natural Resources Committee’s meeting on Feb. 24, when members haggled over procedural rules and squabbled about DNRC’s willingness to work with Knudsen on amendments to the measure. —Amanda Eggert, energy and the environment reporter 
  • Several bills that rein in city zoning powers in an effort to promote home construction passed the Senate while similar measures floundered in the House Local Government Committee. Out of the Senate, those bills now head to the House. —Eric Dietrich, deputy editor, economy and housing reporter 

Heard in the Halls (on Twitter)

“Today, I urge the Montana Senate Committee to pass #HB218. I provided testimony about being abused in the Montana Mountains during my time in the #TTI 💔. Children DESERVE safety in residential programs! Please stand with children and survivors.” 

—Celebrity, media personality and hotel dynasty scion Paris Hilton tweeting Friday about House Bill 218, legislation proposed by Rep. Laura Smith, D-Helena, to strengthen regulations on the so-called troubled teen industry. Hilton is among hundreds of individuals who have alleged they were abused in youth residential programs and has emerged as a prominent spokesperson on the issue.

In Memoriam

Giant of Montana media and endless font of state historical knowledge Chuck Johnson died unexpectedly last weekend at 74. Johnson influenced and aided countless Montana journalists over the years, in addition to leading a long, illustrious career as a dogged but unimpeachably fair state Capitol reporter. He was also chair of the Montana Free Press board. 

A personal note from chief Capitolized author Arren Kimbel-Sannit: The one time I met Chuck was in February at former Gov. Steve Bullock’s new Helena taproom, oddly enough. Even in that short hour, I understood why Chuck was such a legend around these parts. And I’m forever grateful that, even before he knew me, he knew my previous work in the state, and vouched for me to get this job. I send my gratitude into the great beyond for Chuck’s leadership, benevolence, and of course, his reporting. 

From left, Chuck Johnson (then the Lee Newspapers State Bureau chief), Mike Dennison (then the Great Falls Tribune Capitol Bureau chief), Sally Mauk (then the news director at Montana Public Radio) and Bob Anez (then the Capitol writer for the Associated Press in Montana) at the Montana Capitol. Credit: Sally Mauk

The Price of “Sex”

Lawmakers on the Senate Finance and Claims Committee this morning cast doubt on the accuracy of the fiscal note attached to Senate Bill 458, legislation from Sen. Carl Glimm, R-Kila, that would statutorily define sex as “the organization of the body and gametes for reproduction in human beings and other organisms,” specifying that humans have “exactly two sexes, male and female, with two corresponding gametes.”

In other words, the bill would eliminate legal recognition of intersex, nonbinary and transgender people across state law. 

“It looks pretty daunting because it’s really thick, but it reaches into numerous different places in code where sex is referenced,” Glimm told the committee Friday morning. 

The bill’s far-reaching nature led some on the committee to assume that it would come with a hefty price tag.

So those lawmakers and other opponents of the bill were surprised when it was presented Friday with a $0 fiscal note

Lobbyist SK Rossi drew a comparison to something their parents would say every time they had a party: “I can tell you’ve had a party because the house is too clean.”

“I think you should be suspicious of something that impacts 40 different parts of code and has no fiscal impact,” Rossi testified. 

Other opponents highlighted potential fiscal impacts. Will the state have to reach out to everyone who has requested a birth certificate change to verify that their sex aligns with the bill’s definitions, asked the Montana Human Rights Network’s Shawn Reagor. Could local governments be on the hook for legal liability, wondered Missoula County lobbyist Jennifer Hensley. 

And yet the bill, according to the fiscal note, has no projected cost to the state. Amy Sassano, the governor’s deputy budget director, told lawmakers on the committee that the Office of Budget and Program Planning, which authors fiscal notes, reached out to all agencies in the state and received no information indicating the bill would generate a cost. But the picture is slightly more complicated.

“I didn’t say the agencies responded with no concern,” Sassano told Sen. Ellie Boldman, D-Missoula. “I said the agencies responded with no fiscal impact.”

Sen. Janet Ellis, D-Helena, distributed a draft fiscal note prepared by staff at the Montana Department of Corrections. The document doesn’t note any concrete fiscal impact related to the bill, but raises several potential issues. 

For one, the bill could create conflict with federal sex discrimination law and with the federal Prison Rape Elimination Act. Failure to comply with those laws could result in the loss of federal dollars. Lawsuits are also possible, the note says, among other considerations. 

“It is not possible to quantify the costs of litigation that may result from [the bill], but the department believes that the fiscal impact would be quite significant,” the note reads. 

Sassano said the technical notes in the Corrections document fall into a gray area between real potential fiscal impact and speculation, hence the absence of those concerns in the official fiscal note.

“The number of assumptions that you have to go through to assume there would be litigation is a step further than we typically go in a fiscal note,” Sassano told the committee. 

Glimm defended his bill and its possible fiscal impact. 

“We don’t drag every bill down to Finance and Claims and speculate on whether it’s gonna get a lawsuit or not,” he told the committee. “To define something — we define things in code all the time, and generally it doesn’t cost money to define something. I think this is well within our purview.”

SB 458 survived the transmittal break without a floor vote thanks to an agreement on the rules between legislative leadership. 

In February, lawmakers signed a transmittal agreement — not an unusual step — stating that all bills that made it out of one committee but await a fiscal note and a hearing in a budget committee have a later transmittal deadline, even if they’re not revenue bills. By the time lawmakers were rushing to pass general bills in the late hours last week, SB 458 had yet to receive a fiscal note. 

SB 458 was listed as a general bill on the Legislature’s bill tracking website until Friday, when it was re-designated as a revenue bill. 

—Arren Kimbel-Sannit

On Background

Bill creates strict definition for ‘sex,’ legally sidelining intersex and transgender people: For more on Senate Bill 458, see this story on the bill’s first hearing from Mara Silvers. (MTFP)

Colleagues remember veteran Montana political journalist Chuck Johnson: Two giants of Montana media in their own right collaborated on this moving obituary of Chuck Johnson. (MTFP)