Capitolized is a twice-weekly digest that keeps an eye on the representatives you voted for (or against) with expert reporting, analysis and insight from the editors and reporters of Montana Free Press. Want to see Capitolized in your inbox every Tuesday and Friday? Sign up here.

May 5, 2023

Two years ago, one of the 2021 Legislature’s key late-session issues — the implementation of the state’s legalized recreational marijuana program via House Bill 701 — nearly went off the rails. On the session’s final day, conservative hardliners pushed a bill through committee that would have overhauled HB 701’s tax and regulatory provisions and dramatically increased restrictions on access to medical marijuana. The push made it through the House but fell to a coalition of Senate Republicans and Democrats at the last minute. Chaos subsided. The 67th Legislature adjourned sine die. HB 701, which taxes recreational marijuana at 20% and puts the money into a drug treatment program and land conservation, became the law of the land. 

And thanks to some last-minute antics on Tuesday, the final day of this year’s legislative session, it may mostly remain that way. That’s despite the efforts of lawmakers and a broad coalition of interest groups to craft and pass Senate Bill 442, which proposes new allocations of $50 million in marijuana tax revenue.

The bill would apportion tax revenues drawn from recreational marijuana sales between the state’s General Fund, county road construction and maintenance, conservation and recreation programs, addiction treatment and veterans’ services. 

But even as the bill gained broad popularity in the Legislature, Gianforte signaled that he didn’t much like it. Indeed, he vetoed it on May 2, the day after it passed its final legislative hurdle — a 48-1 endorsement by the Senate — arguing that the bill creates a “slippery slope” by making the state responsible for “matters that are strictly under the jurisdiction of local authorities” — i.e., county road construction and maintenance. The governor also expressed concern that county governments would use the increased breathing room in their budgets to redirect taxpayer dollars to “capricious, unnecessary projects,” which he said would add to Montanans’ tax burden.

But lawmakers — including bill sponsor Sen. Mike Lang, R-Malta, who voted for Senate Minority Leader Pat Flowers’ surprise sine die motion — didn’t seem to know about Gianforte’s veto when a razor-thin majority of the Senate voted to end the upper chamber’s work Tuesday. The veto wasn’t read across the rostrum, as is generally the case with messages from the governor.

Lang wasn’t necessarily surprised by the veto, but he assumed lawmakers would be able to override it via polling after the session’s close. But because the veto letter arrived while the Senate was still in session, and because the Senate didn’t act on it, there have been questions about whether the chamber missed its chance to override Gianforte’s “no.” 

“It came in before the sine die, but it doesn’t matter. One chamber is still in progress so we are still in session. That bill is dead,” Fitzpatrick told a gaggle of reporters after the Senate adjourned. “Those guys just screwed themselves so bad. It really is an ironic twist to it all.”

SB 442 backers question that — as well as the speed with which the bill reached the governor’s desk. 

Lang said he disagrees with Fitzpatrick’s assessment because lawmakers were given no notice of the governor’s veto when they began business on May 2. There are a range of interpretations regarding how veto rules should be applied in this particular instance, he added. 

“If you ask three different people, you’d probably get three different responses,” Lang told Montana Free Press. “I think the bill [veto] should have been read over the rostrum, but that’s just what I think. We’ll see what the lawyers think.”

In a press conference the day after his successful move to adjourn the Senate, Flowers, D-Belgrade, said he found it “curious” how quickly the bill landed on Gianforte’s desk. Bills often linger in the Legislature for days after passing out of both chambers.

“Somehow that bill left our chamber and got to his veto pen more quickly than any other bill,” Flowers said. “The only thing I can assume is [Gianforte] really didn’t like the bill and was determined to get it vetoed immediately.”

The governor’s veto letter came down just before the Senate adjourned Tuesday, said Senate Majority Leader Steve Fitzpatrick, R-Great Falls. Gianforte spokesperson Kaitlin Price said in an email that the veto was issued “sometime in the 2 o’clock hour.” The sine die motion passed 26-24 at 3:20 p.m.

“I voted to sine die — I wasn’t even thinking about 442,” Lang said. “If I had known [the bill was headed to the governor], I would have got up and said, obviously, ‘Don’t sine die.’” 

For a governor’s veto to be overridden when the Legislature is out of session, Montana law allows a legislator to ask the secretary of state to poll lawmakers by mail. If two-thirds of both bodies affirm the measure, it becomes law.

If lawmakers remain consistent, the Legislature should have plenty of votes to override Gianforte’s veto: At last count, 130 of the Legislature’s 150 members had greenlighted SB 442. 

Lang started that ball rolling on Friday. In his letter to Secretary of State Christi Jacobsen, Lang argued that the circumstances of the veto indicate an attempt to circumvent the Legislature’s constitutional check on the executive branch.  

“As an independently elected official with your own statutory authority, it is of utmost importance that you protect the Legislature’s ability to review and evaluate the Executive’s veto action,” Lang wrote. “We look forward to receiving a copy of the bill, veto message, and ballot with a return envelope so we can perform our duties as well.”

The move raises an interesting legal question: When did the 68th Legislature actually end? In Fitzpatrick’s view, the House was still in session when the Senate adjourned, and thus the session was not over and SB 442 is beyond a veto override. To Lang and the broad coalition of SB 442 supporters, the Senate was denied the proper chance to review the governor’s veto and should have the right to do so via polling. If the override push fails — or the secretary of state declines to issue the poll — the medical marijuana tax revenue allocations in 2021’s HB 701 will remain law. 

The secretary of state’s office did not return MTFP’s request for comment on SB 442, and the governor’s office redirected questions to legislative leaders and Todd Everts, the legislative code commissioner, who could not be reached by press time.

The Montana Association of Counties and conservation group Wild Montana expressed frustration with the logic and process surrounding SB 442’s veto.

“We never thought for a moment he would actually override the will of the Legislature and turn his back on the beneficiaries of the bill,” Eric Bryson, the executive director of Montana Association of Counties, said in an email. “From veterans to public land advocates to farmers trying to get their goods to market, SB 442 carved out limited marijuana tax resources exactly where the public wanted them spent. We believe that [the veto] was the wrong choice for Montana and encourage the secretary of state to follow the law and conduct a veto-override poll.” 

Bryson also criticized Gianforte’s logic in issuing the veto, arguing that there are other examples of county governments accepting and spending taxes that are levied statewide, including the gasoline tax.

Noah Marion, the state policy director for Wild Montana, said lawmakers should have another opportunity to weigh in on SB 442.

“For months, the administration told us that if we got good bipartisan bills on the governor’s desk, he’d sign them,” Marion said. “We all held up our end of the deal, but the governor didn’t. SB 442 is bipartisan. It’s popular. It’s got something for everyone. It should be law and the Montana Legislature has the right to take another look at this.” 

The allocation of marijuana tax revenues was a source of careful political maneuvering this session as lawmakers scrapped over where the money should be funneled. They also argued about the appropriateness of establishing long-term allocations for that revenue in statute, as opposed to dividing it up on a session-by-session basis.

A handful of competing proposals for marijuana tax revenue, including one favored by Gianforte that sought to cut Habitat Montana’s allocation and funnel more toward law enforcement and the Department of Justice, and another directing the majority of the statutory allocation toward the General Fund, failed to garner the support from lawmakers that Lang’s proposal had.

According to SB 442’s fiscal note, tax collections from recreational marijuana are expected to approach $53 million in fiscal year 2024 and increase slightly in subsequent years.

—Arren Kimbel-Sannit and Amanda Eggert

Programming Note

Let’s talk a little bit about what Capitolized is, and what it can be. 

We launched the newsletter at the start of Montana’s 68th Legislature, and twice a week for five months we’ve tracked the session’s major bills, fiery debates, behind-the-scenes machinations, key figures and more.

Now, the session is over. It might seem obvious to put an end to Capitolized — or at least send it on a year-and-a-half vacation until lawmakers come back to Helena in January of 2025. But doing so would ignore the fact that, even though parking at the Capitol will now be easier and dress codes more relaxed, the business of politics continues. 

The governor will sign and veto bills. Interest groups will challenge them in court. Agencies will attempt to implement them. Lawmakers will meet in interim committees to study issues prior to the next session. Election campaigns will rumble. In short, there’ll still be a lot of news. 

And the name of Capitolized, after all, isn’t “Sessioned.” The Capitol building isn’t going anywhere. So neither are we — not permanently, at least. 

First, this newsletter is going to take two weeks off as we recuperate from the 68th Legislature. Then we’ll be back, covering the aftermath of the session and the politics of state agencies. We haven’t figured out all the logistical details yet, but we’ll probably tinker with the newsletter’s frequency and schedule. If you have any suggestions, tips or questions about what you’d like to see in this space going forward, please don’t hesitate to reach out and let us know. 

Thanks for your continued support and readership.

Arren Kimbel-Sannit

Bill Report

Senate Bill 481, sponsored by Sen. Carl Glimm, R-Kila, was among the myriad bills that died when Senate Minority Leader Pat Flowers moved to adjourn the Senate sine die on Tuesday. The bill would have required counties to retain a digital log of votes counted by a tabulating machine — known as a cast vote record — for all federal elections, and was crafted by the Legislature’s Joint Select Committee on Election Security. Before the bill died, it was amended to remove language stipulating that those logs are not public records, addressing an argument raised by election skeptics who have attempted to obtain such documents from counties across Montana. The amendment passed with the approval of Glimm and three Republicans who have questioned the integrity of Montana’s elections: Sen. Theresa Manzella, R-Hamilton; Rep. Bob Phalen, R-Lindsay; and Rep. Lyn Hellegaard, R-Missoula. Two Democrats — Sen. Jen Gross of Billings and Rep. Kelly Kortum of Bozeman — opposed the change, citing broader concerns that SB 481 would force ongoing costs onto counties to maintain specialized computer equipment. The Senate voted to adjourn prior to taking action on the amendment, rendering SB 481 dead.

House Bill 819, which emerged in mid-April as a compromise housing affordability spending proposal, passed final votes in both legislative chambers Tuesday. The bill would put $175 million toward housing programs and also authorize using $50 million from the state coal trust to provide low-interest loans to developers building rent-restricted apartments. It now heads to the desk of the governor, who has signaled he supports the compromise.

House Bill 575 and House Bill 625 were among several abortion restrictions signed by Gov. Greg Gianforte during a ceremony Tuesday. Both bills restrict abortion access and have immediate effective dates. HB 575, sponsored by Rep. Lola Sheldon-Galloway, R-Great Falls, bans abortion after 24 weeks, the point at which the bill presumes fetal viability. HB 625, sponsored by Rep. Kerri Seekins-Crowe, R-Billings, requires medical providers to give life-saving care to infants born after an unsuccessful abortion. On Thursday, a district court judge blocked HB 575, saying part of the bill that requires ultrasounds for all abortions infringes on Montanans’ constitutional rights. Anticipated legal challenges to HB 625 have not yet been announced.

By the Numbers

Number of bills, resolutions and other measures passed by the 68th Legislature, out of 1,698  introduced. That’s up from 723 passed in 2021, the first session in modern state history under unified Republican control of the state House, Senate, and executive branch. 

Heard in the Halls

“People say I’m not being compassionate to people that, you know, got raped … To me, killing a child and being raped is two things that you have to live with for the rest of your life. I really believe in the Lord Jesus Christ healing, and by giving birth to that child, he’ll heal you from the rape trauma. And through his grace, maybe even erase it from your memory. And I’ve seen that happen, too.”

Rep. Lola Sheldon-Galloway, R-Great Falls, speaking to Montana Free Press about abortion legislation this session. One of her sponsored bills this year, House Bill 575, requires an ultrasound for all abortions and bans procedures after 24 weeks, with no exceptions for rape and incest survivors.

On Background

Where to allocate weed tax revenues?: For more on Senate Bill 442 and its winding, hazardous path to almost becoming a law, read this story from Montana Free Press’ Amanda Eggert. (MTFP)

With some Republican abortion restrictions signed into law, critics blast government overreach into personal health care choices: The abortion regulatory landscape in Montana is dramatically shifting. Mara Silvers has the details. (MTFP)