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April 4, 2023
The Legislature this week sounded the likely death knell for almost all of the remaining proposals to amend the Montana Constitution this session.
That isn’t to say that the House and Senate didn’t endorse those eight proposals, which ranged from an amendment to end state Supreme Court elections to one enshrining a right to hunt, trap and fish in the Constitution. To the contrary, most of the bills passed out of their original chambers ahead of a key deadline Tuesday. But constitutional referendums must clear a higher vote threshold than most bills: two-thirds of the entire Legislature, as opposed to a simple majority in each chamber.
And with Democrats uniformly opposed to all but one amendment proposal the supermajority Republicans were working with slim margins. With 102 Republicans between the House and Senate, the party can afford only two dissenting votes to get its proposed amendments past the 100-vote threshold.
That all said, bills that receive a majority vote in their chambers of origin will still head to the opposite house for consideration. Legislative rules can’t presuppose an outcome. Any constitutional amendment proposal that the Legislature passes still requires approval by the voters in 2024.
Tuesday was the deadline for revenue bills, resolutions and constitutional amendment referrals to pass out of their original chambers, accelerating a rush of floor votes.
By the time that lawmakers took their final votes on the measures Tuesday afternoon, Republican defections had likely doomed nearly every one. The only exception was Senate Bill 563, an amendment proposed by Sen. Kenneth Bogner, R-Miles City, that would establish a mental health trust fund in the Constitution if approved by voters. The bill passed out of the Senate, 40-10 — the only amendment proposal to receive Democratic support.
House Bill 915, Billings GOP Rep. Bill Mercer’s attempt to ask the voters whether to relinquish their power to elect Supreme Court justices in favor of gubernatorial appointments, passed the House Friday, 59-39. But with nine Republicans voting no, seven Democrats would have to support the proposal in the Senate for it to go to the voters — an unlikely scenario.
Mercer painted the proposal as a way to keep money and influence out of judicial elections.
“This system that we have — to actually be a member of the Montana Supreme Court, you need to run a statewide campaign,” he said on the floor Monday. “You need to go raise money. You have to ask people for money. And then, there are a whole bunch of other people out there raising money uncoordinated from you trying to push you over the edge.”
The amendment is a major component of GOP legislation this session that would reshape the judicial branch, an effort born of an ongoing fight between Republican lawmakers and the courts. Democrats criticized the bill as a partisan power grab that would take away the voters’ right to select Supreme Court justices. And unlike the federal system, judges don’t have lifetime appointments in Montana, meaning that they could be subject to the whims of individual governors, they said.
House Bill 965, a proposal from Rep. Jerry Schillinger, R-Circle, limiting the Supreme Court’s authority to make rules regarding “admission to the bar and the conduct of its members” fared even worse. The amendment referral failed to pass the House on a 45-55 vote.
Corvallis Rep. Wayne Rusk was a vocal Republican critic of the bill.
“I had some major questions about this proposed amendment in committee, as it again appeared that one branch of government was set to collide with another,” he said.
The remaining constitutional amendment proposals in the House all saw at least two Republican “no” votes.
- House Bill 517, a proposal to remove powers from the Montana University System and Board of Regents, passed on a 61-37 vote on third reading Tuesday, losing five votes from its initial vote in the House.
- House Bill 551, to implement “constitutional carry,” passed the House 65-33.
- House Bill 372, establishing a right to hunt and trap in the Constitution, passed 64-34.
Constitutional referendums in the Senate fared little better, save for Bogner’s bipartisan-backed mental health trust fund idea.
Senate Bill 534, sponsored by Sen. Tom McGillvray, R-Billings, was the top contender among a variety of constitutional amendment proposals this session concerning the redistricting process. It passed the Senate 30-20 with four Republican defectors: Sens. Jason Small of Busby, Walt Sales of Manhattan, Russ Tempel of Chester and Jeff Welborn of Dillon.
The bill would ask the voters to enshrine additional redistricting criteria in the Constitution, including that the Districting and Apportionment Commission must minimize division of cities and towns and “may not consider any data pertaining to the political affiliation of electors or prior election results.”
Tempel, one of the Republican “no” votes, said he didn’t understand how the Senate could approve redrawing the state’s Public Service Commission districtsin a way that splits cities and then vote for a bill that would limit the Districting and Apportionment Commission’s ability to do the same.
The third constitutional amendment before the Senate this week was Hamilton Republican Sen. Theresa Manzella’s Senate Bill 272, a “constitutional sheriff” amendment asserting that the sheriff “is the chief law enforcement officer in [their] county.” That proposal failed to make it out of the Senate outright, dying 22 votes to 28.
Lawmakers take on Tester
The Senate this week passed two bills that would make it more difficult for independent and third-party candidates to get on the ballot, an effort, critics say, to tip the scales in favor of Republicans in the state’s upcoming U.S. Senate race.
Senate Bill 566, sponsored by Sen. Greg Hertz, R-Polson, would provide for a top-two primary where the two candidates with the most votes in a primary advance to the general election, regardless of party. But the bill would only apply to races for U.S. Senate and sunset in 2025. In other words, it would only apply in the 2024 Senate race, which sees Democrat Jon Tester playing defense against an as-yet-undetermined Republican.
The bill passed the Senate on third reading Tuesday, 27-23.
In all likelihood, the change would primarily impact the electoral viability of the Montana Libertarian Party, the only third party that regularly qualifies for the ballot in Montana. Keeping the Libertarian Party off the general election ballot could consolidate support behind a Republican candidate, at least according to the conventional wisdom.
“The bill primarily affects third parties that already have ballot access,” Sid Daoud, a Kalispell city council member who chairs the Montana Libertarian Party, testified in opposition to the bill last week. “In an effort to knock Sen. Tester out of the next Senate race, Sen. Hertz is attempting to remove the potential Montana Libertarian Party candidate from taking a percentage in what is expected to be an extremely tight race.”
Senate Bill 565 is another Hertz bill with a similar flavor. It would increase the number of petition signatures required for third-parties to hold primaries. Hertz pointed to the Montana GOP’s bankrolling of Green Party candidates in 2020 and the Montana Democratic Party’s support for Libertarian John Lamb in the 2022 race for the state’s western U.S. House district as justifications.
“In my short political career of about 15 years here, what I’ve noticed is both major parties are weaponizing our third-party candidates,” he said on the floor Monday.
SB 565 passed on third reading, 26-24.
Heard in the Halls
“The Voting Rights Act introduces elements of racism and also priorities.”—Sen. John Fuller, R-Kalispell, speaking in support Monday of Senate Bill 534, a proposed constitutional amendment from Sen. Tom McGillvray, R-Billings, that would impose restrictions on criteria that the Montana Districting and Apportionment Commission can consider when drawing maps.
The Drag Show (Free Speech) Debate
Lawmakers on the Senate Judiciary Committee began Tuesday’s hearing on a bill to ban drag performance in public spaces with a tone-setting debate about the role the government plays in regulating free speech.
The semi-ironic discussion came out of an appeal from the committee’s chair, Sen. Keith Regier, R-Kalispell, to keep public comments respectful, non-emotional and on topic. Sen. Jen Gross, D-Billings, requested that testimony exclude terms like “pedophelia” and “grooming” in reference to LGBTQ people or drag performance artists — a feature of testimony during the bill’s first hearing that alarmed LGBTQ civil rights advocates.
Other committee members took issue with those guardrails, arguing that the government should not regulate speech.
“I hope that everybody’s respectful. Make your points. But I will not participate in a situation where government will tell the people what they can and can’t say. That is a First Amendment violation,” said Sen. Chris Friedel, R-Billings.
The bill lawmakers were there to consider, House Bill 359, would ban drag performance, including “male or female impersonators,” in schools, libraries and any public place where a minor is present if the entertainment is for a “prurient interest.”
The sponsor, Rep. Braxton Mitchell, R-Columbia Falls, reiterated his stance on Tuesday that the policy will protect children from creating an “inadequate understanding of gender roles,” which he said is “damaging to their long-term social and emotional development.” He was joined by seven proponents, including members of the Yellowstone County chapter of Moms for Liberty and a representative of the Office of Public Instruction.
Many of the 59 opponents rebuked the bill’s premise, casting it as misinformed and an example of government overreach on free expression — somewhat echoing Friedel’s earlier point. Drag performers, patrons, parents, public employees and community arts groups said HB 359 wrongfully stokes fears about a broad category of performance art. In many cases, they said, all-ages drag performance helps young LGBTQ people feel represented and connected in their community.
“This bill seeks to label drag in its entirety as an adults-only venture. It’s not. Drag is for everyone. It’s not harmful. And legislating anything to the contrary sends a clear message to queer youth that they need to hide who they are,” said Donald Stucker, a Montana drag queen and show producer.
Mitchell argued that HB 359 was not about free speech or parental rights or anything else the opponents claimed. Referencing the disparity in testimony between proponents and opponents, he maintained that the majority of Montanans support his vision.
“I’m sure if we got every person in the state who is working right now and actually has a job, unlike most of these folks here, it seems like, I’m sure we’d see a pretty different ratio,” Mitchell said.
The committee did not vote on the bill Tuesday.
How Democrats sank the child tax credit bill
As the dust settles on a key procedural deadline for this session’s batch of budget bills, it’s become apparent that House Democrats have played a key role in scuttling one of the most progressive parts of Gov. Greg Gianforte’s proposed state budget — a $1,200-per-child tax credit.
As introduced, House Bill 268 would have offered the credits to families with incomes up to $50,000 for each child 5 or younger, costing the state about $33 million a year. It initially received a warm, bipartisan reception in the Legislature, skating through the House Taxation Committee and winning broad bipartisan support in a preliminary vote on the House floor.
In the House Appropriations Committee, however, it floundered on a 9-14 vote Feb. 23. It was opposed there by nine of 16 Republicans and five of seven Democrats, meaning minority Democrats could have swung the vote in favor of advancing the bill.
House Minority Leader Kim Abbott, D-Helena, told reporters the following day that Democrats were using appropriations committee votes as leverage in negotiations as they pushed for legislative action on housing, childcare and mental health programs.
“I think the folks in appropriations are taking up some space right now on proposals because we have priorities,” Abbott said. “If people are expecting our votes to move priorities, even if we like them, we need our priorities funded too.”
For his part, the governor has pushed for passage of the tax credit and another stalled bill that would have created a disaster resiliency fund. At a March 2 press conference, his office distributed vote sheets identifying the lawmakers who had voted against his bills.
“These legislators are stalling this pro-family, pro-growth tax cut,” he said.
Budget bills initially introduced in the House were required to pass the chamber by Tuesday afternoon, a deadline that allows time for Senate-side debate before the session ends in late April or early May. With the child tax credit still mired in the appropriations committee, that seals the bill’s fate for the session, though its provisions could still be amended into another bill as part of last-ditch negotiations.
Gianforte spokeswoman Kaitlin Price said in an email Tuesday that the governor’s office still has hope for passing the policy this year.
“Nothing is dead until the Legislature gavels out, and as the governor continues to work with legislators, he’s optimistic about getting the child tax credit and other elements of his pro-family agenda across the finish line,” Price wrote.
Abbott defended Democrats’ vote against the bill this week, saying they would have preferred to expand the state’s version of the federal earned income tax credit and that they were concerned the governor’s office was presenting the child tax credit as a solution to childcare affordability. (A modest expansion of the earned income tax credit was signed into law alongside Gianforte’s top-bracket income tax rate cuts earlier this year; a Democratic push for further expansiongarnered little traction).
“Democrats have proposed solution after solution that would give relief, both in terms of tax — property tax and income tax — and in terms of access to childcare,” Abbott said.
One of the representatives who voted to table the bill, Rep. Emma Kerr-Carpenter, D-Billings, also told Capitolized this week that she was frustrated by some of the provisions that had been amended into the bill, such as a work requirement, and worried that it would be used by the governor’s office to justify inaction on Democrats’ priorities.
“If it came back without strings attached, I’d be for it, or I’d be a lot more for it,” she said. “And also if I knew it wasn’t going to be used as some sort of shield to avoid doing other things for families.”
Proposed constitutional amendment would end Montana Supreme Court elections: For more on one of the most expansive constitutional amendment proposals of the session, see this story on Rep. Bill Mercer’s HB 915. (MTFP)
Senate passes bill creating top-two primary in Tester’s 2024 U.S. Senate race: This story has more on the bill to create a top-two primary in Motnana’s upcoming U.S. Senate race and its origins. (MTFP)