Senate Majority Leader Steve Fitzpatrick, R-Great Falls, was ambling down a hallway on the third floor of the Montana Capitol late on May 2 when he crossed paths with a Montana Free Press reporter.
The typically dry, straight-laced attorney looked remarkably at ease, given what had transpired in the preceding 87 days of the 68th Montana Legislature.
“We win,” he said. “You can print that.”
A few hours earlier, Senate Minority Leader Pat Flowers, D-Bozeman, had made a successful motion to adjourn sine die, ending the upper chamber’s work for the session and leaving a number of legislative priorities in the lurch, including House Bill 816, a Republican proposal to build on the $764 million in tax rebates that passed earlier in the session with an additional $135 million expenditure. In addition to all Democrats, 10 Republicans supported the sine die motion. One of those Republicans, Laurel Sen. Barry Usher, told MTFP he voted to adjourn because every hour the session went on, more and more money was getting added to bills through the opaque conference committee process. The final vote was 26-24.
“I just felt like we no longer had anything to gain for Montanans or for our constituents by being here any longer,” Flowers said after the Senate adjourned, adding that he didn’t think any remaining Democratic priorities were still on the table. “We’ve already been here longer than any session I’ve served in and it was just time to go home, and obviously a lot of Republicans felt the same way and voted with us on it.”
The adjournment seemed like an impressive coup for the embattled minority party, which had opposed most of the GOP-backed tax relief as either too regressive or too temporary. Even HB 816’s sponsor, Rep. Josh Kassmier, R-Fort Benton, assumed the bill was dead at first.
But Fitzpatrick and other lawmakers rushed to the House, which had recessed when word traveled of the Senate’s surprise action, to work out how the Legislature might keep the rebate bill and others alive.
Time has an illusory quality in a state Capitol, and the rules of legislative procedure supersede what are otherwise universal constants. The House reconvened and voted to reconsider its previous action on HB 816 and a slate of other bills stuck in limbo. Doing so rendered previous amendments to the rebate proposal null, and left the House and Senate versions identical. As the Senate had already voted on the original text of the bill, the House was able to do the same, sending the additional rebates to the governor’s desk.
That last day captures an essential quality of Montana’s 68th legislative session. Republicans in 2023 held a two-thirds-plus supermajority, 102 of 150 seats across the House and Senate — a high-water mark for the GOP in the state’s modern history. The party also controls the governor’s office and every other partisan statewide position. But a majority of that size can be unwieldy, especially with a $2.4 billion budget surplus on the line. Yet, on most issues, even those that faced bipartisan opposition in the 2021 session, the factionalized Republican Party ultimately closed ranks.
When it came to one of the session’s highest-profile votes — a motion in the House to bar Rep. Zooey Zephyr, D-Missoula, from the floor following a protest in the Capitol — Republicans voted as one.
“Our historic Republican supermajority coalesced around the foundation that defines the Republican brand, which is liberty and respect for the people of Montana,” House Speaker Matt Regier, R-Kalispell, said in post-session remarks. “Additionally, this has been done in the face of a faction of leftists that incorporate hate and harassment as a political weapon. In an attempt to slow the progression of legislation, the minority Democrat Party condoned those actions in the Montana House, stating that police in riot gear is a normal part of democracy. Despite these unbelievable and disheartening negative headwinds, House majority Republicans were not deterred from keeping the Montana citizen, Montana taxpayer, Montana family and most importantly, Montana children at the forefront of this session.”
On April 24, Zephyr’s constituents and other demonstrators filled the House gallery in protest of Regier’s ongoing decision to not recognize Zephyr during debate on bills, that decision being the ostensible result of Zephyr saying lawmakers would have blood on their hands if they supported legislation banning gender-affirming care for transgender minors.
Zephyr, again, punched in to speak. Regier, again, did not recognize her. Minority leadership sent the matter to a vote, and all but a couple of Republicans supported the speaker’s decision. Somebody in the gallery yelled “bullshit,” somebody else threw a red-colored latex glove. Regier asked for the gallery to be cleared, riot police materialized, and seven protesters were ultimately arrested on misdemeanor criminal trespassing charges. Police citations make no mention of property damage or violence.
As the demonstration occurred, Zephyr stood by her seat with her microphone raised, metaphorically amplifying those who came to protest her inability to speak. That gesture seemed to be the stated justification for the disciplinary action later applied to her.
“The ‘blood on your hands,’ we all hear worse shit than that. But when the microphone was held in the air, fist on her heart,” that’s different, Rep. Bob Keenan, R-Bigfork, told MTFP.
On April 26, the House voted on party lines to bar Zephyr from the House floor, antechamber and gallery. The House gallery remained closed to the public for the final days of the session.
After sine die, Democrats claimed they punched above their weight, citing the failure of right-to-work legislation, passage of the Montana Indian Child Welfare Act and other American Indian Caucus priorities, an expanded child care subsidy, increased (though not funded to the extent Democrats had hoped) Medicaid provider rates and a number of Republican proposals on issues like housing that bore fingerprints from the minority party.
“Of course, we weren’t able to defend against all of it,” House Minority Leader Kim Abbott, D-Helena, said after the session. “There were attacks against the LGBTQ community that will have a broad and harmful impact on people across the state.”
The Republican social agenda was a constant presence, even as conversations about the state’s budget surplus dominated meeting rooms and hallways.
“There are all those pro-life bills that kind of went underneath the surface because everybody’s been talking about the surplus all year,” Fitzpatrick said.
The right to abortion access is still the constitutional default in Montana thanks to the unanimous 1999 Montana Supreme Court ruling in Armstrong v. State, which held that the Montana Constitution’s broad privacy provisions protect access to the procedure. But Republicans this session passed numerous bills that challenge that status quo, some of which have immediate effective dates that make them the law of the land barring successful litigation. House Bill 575, sponsored by Rep. Lola Sheldon-Galloway, R-Great Falls, bans abortion after 24 weeks, the point at which the bill presumes fetal viability. House Bill 625, sponsored by Rep. Kerri Seekins-Crowe, R-Billings, requires medical providers to offer life-saving care to newborn infants born after an unsuccessful abortion procedure.
“I think protecting innocent life, whether that’s inside or outside the womb, has always been a priority for the Republican caucus,” Regier said in a post-session press conference.
Abortion restrictions generally find broad support in Montana’s contemporary GOP legislative caucus. But the caucus’ support for bills this session regulating LGBTQ+ health care and expression notably exceeded that of 2021 and other prior sessions. In addition to Senate Bill 99, the gender-affirming care ban, there’s Senate Bill 458, sweeping legislation that inserts a binary definition of sex based on reproductive capacity into state law; House Bill 359, a ban on drag performances in many public places; House Bill 361, which states that it’s not legally discriminatory if one student refers to another by their name or gender as assigned at birth — commonly known as deadnaming — and others. On each of those votes, some Republicans defected, but never enough to permanently knock the bills off course.
“A child should not be punished for using the wrong pronouns or for deadnaming fellow students,” Rep. Brandon Ler, R-Savage, who sponsored HB 361, said in a press conference. “Montana students cannot be subject to compelled speech in schools.”
SB 99 is now subject to a legal challenge. More lawsuits are likely around the bend.
Over much of the last decade, a faction of Montana Republican lawmakers has gained notoriety, and sometimes generated outrage, for joining Democrats to pass or kill significant legislation — a formula that was more explicitly necessary when a Democrat sat in the governor’s office. The so-called Conservative or Republican Solutions Caucus hammered out the state’s Medicaid Expansion plan, greenlighted campaign finance reform, and consistently killed “right to work” bills brought to Montana by national anti-union groups.
And lawmakers regarded as moderate Republicans have occasionally taken Libertarian-tinged positions on LGBTQ+ issues. Former state Sen. Duane Ankney, R-Colstrip, had his face printed on celebratory t-shirts for pushing through the repeal of Montana’s anti-sodomy laws in 2015 after referencing his own daughter’s worth in the eyes of God in an emotional speech on the House floor. In a later session, Republicans and Democrats kneecapped a transgender bathroom bill.
Last session, the first time a Republican sat in the governor’s office for more than 15 years, party moderates helped kill, albeit by thin margins, two 2021 bills — House Bill 113 and House Bill 427 — that would have prohibited transgender minors from accessing specific medical care, including puberty blockers, hormone therapy and mastectomies.
At the time, some Republican members who voted against the bills, including House Majority Leader Sue Vinton — few people’s idea of a moderate — said they took issue with the bills’ implications of government overreach, criminalization of medical professionals, and negative impact on the mental health of young people diagnosed with gender dysphoria.
That this session might be different was clear from its start. Two weeks into the session, 21-year-old Republican Rep. Mallerie Stromswold resigned her central Billings seat citing both the difficulty of balancing student life with legislative service and “significant backlash from members of my caucus because I did not fall in line.”
During the 2021 session, Stromswold was a prominent Republican voice against HB 113 and HB 427, a stand that earned disapproval from the caucus.
“My whole political ideology lays with the fact that I don’t think we should control people’s lives,” she said at the time. “I really just don’t understand why people are so threatened by other people’s decisions that they feel the need to control them. This decision isn’t hurting us in any way.”
“You have to take into consideration those pressures and impacts, and it wouldn’t be honest to say you completely ignored those political and party pressures that were out there,” retired Kalispell Republican Rep. Frank Garner told MTFP earlier this session. He cast a vote against HB 113 last session because he said the bill would possibly prevent parents and kids from receiving counseling, increasing the risk of suicide.
He said he made his voting decisions based on “the principle of conscience, constituents, caucus — in that order.”
And the Solutions Caucus that Garner was often associated with enforced no formal requirement or oath, he said. The lawmakers lumped as moderates vote differently on different issues. In other words, it’s wrong to assume that comparatively moderate Republicans will provide Democrats the votes to defeat conservative social proposals in the same way they joined Democrats to block efforts to roll back Medicaid expansion, for example.
Additionally, the 102-seat Republican supermajority makes building bipartisan coalitions more difficult.
“The state is voting more conservatively. The trend is more conservative. The votes are more conservative,” Garner said. “If you’re going to do something bipartisan that’s difficult, now you’ve got to get 25 Republicans to agree. In my first session you had to get 11. The math is different.
Believe me, herding 25 cats is way harder than herding 11.”
Sen. Jeff Welborn, R-Dillon, was generally opposed to this session’s trans-regulating legislation. In an interview with MTFP earlier this session, he described SB 99 as “narrowly crafted to eliminate a class of people.”
Still, Welborn voted for SB 99 during a final procedural vote.
“The bill was going to pass anyway. I took the wrong vote. I took what I thought was an easy vote. Had I a chance to do that over again, I would vote differently,” Welborn told MTFP at the time.
There were still some meaningful divisions in the caucus that had an impact on the outcome of the session, not the least of which was the Senate vote on the sine die motion, which Fitzpatrick attributes in part to some lawmakers’ dissatisfaction with their failure to get their priorities funded with the state’s surplus cash.
“I think what happens is when you get such large majorities, you actually form these sub-caucuses in the caucus,” Fitzpatrick said. “In a weird way, it seemed easier, many days, to pass legislation in prior sessions because, you know, you’d find one block of people to move a bill. Now, as you move through the Senate, there’s a group of five here and there’s a group of 10 here. I think it’s just a function of size.”
All session long, bills were jerked around, killed, revived, tabled, poked and prodded as groups of lawmakers, especially those on the budget committees, jostled for their priorities.
“If people are expecting our votes to move priorities, even if we like them, we need our priorities funded too,” House Minority Leader Kim Abbott, D-Helena, told reporters in April after Democrats on the House Appropriations Committee joined with some Republicans to withhold their votes from a $1,200-per-child tax credit bill. (Others members of the minority party pointed out that the proposal also contained elements like a work requirement that made it a nonstarter with Democrats).
The governor on several occasions used his press conferences to chide lawmakers for stalling or voting against legislation he favored. And bills with broad bipartisan legislative support, like the marijuana tax revenue spending proposal Senate Bill 442 and a series of child welfare reforms, have met Gianforte’s veto pen.
Republicans were especially divided on proposed amendments to the Montana Constitution. By the time Regier swung his gavel for the final time this session, not one of the dozens of amendments drafted had gotten the necessary votes to land on the ballot in 2024.
Constitutional amendments proposed by the Legislature are difficult to pass by design: In order to land on the ballot, they need to clear a two-thirds vote, or 100 lawmakers, across both the House and the Senate.
And legislative Democrats of late have been clear they would not support most proposed changes to the Constitution, a relatively progressive document that through either its text or subsequent court rulings protects access to abortion, a “clean and healthful environment” and more. The state’s foundational document also sometimes stands athwart the conservative political agenda in court, to the chagrin of some Republicans. Political observers may remember former Kalispell lawmaker Derek Skees’ 2021 remarks calling for the state’s “socialist rag” of a constitution to be “thrown out.”
Democrats took the 2022 electoral failure of a proposed constitutional amendment referred by the previous Legislature — LR-131, which would have required medical providers to apply life-sustaining efforts to newborns born after an induced abortion, natural labor or cesarean section, even if survival was medically impossible — as evidence that voters agreed with the constitutional status quo.
“Something we all tried to do in campaign season was connect the priorities that we were hearing from constituents to the Constitution, and say, ‘if you love your public lands … and right to privacy, let’s talk about how these are baked into our Constitution,” Rep. Alice Buckley, D-Bozeman, said at a press conference after the session ended.
In other words, if Republicans wanted to ask the voters to amend the Constitution, they’d be doing so on an almost purely partisan basis. But the promise of the GOP supermajority — or its threat, according to Democrats — was that with 102 seats, Republicans didn’t need the minority party for votes on constitutional amendments, or much of anything else.
Senate President Jason Ellsworth, R-Hamilton, was clear about that dynamic even before the session began.
“We’re going to have an opportunity next session, because we’re going to have a supermajority, to potentially pass constitutional initiatives and give those votes to the people,” he told his caucus in pre-session meetings.
A slew of amendments surfaced in draft form: “Constitutional amendment to prohibit public funding of abortion,” “Constitutional amendment defining gender,” and various others concerning everything from noxious weed management to judicial recusals to the process for amending the Constitution.
By the time the session was underway, lawmakers had formally introduced 19 proposals. Transmittal deadlines, vote counting and behind-the-scenes negotiating whittled that number to eight. The survivors included major changes to the state’s institutional structure, like House Bill 915, Billings GOP Rep. Bill Mercer’s attempt to ask voters to relinquish their power to elect Supreme Court justices in favor of gubernatorial appointments, or Republican Rep. Mike Hopkins’ House Bill 517, a proposal to remove certain powers from the Montana University System and Board of Regents. Other amendment proposals concerned permitless concealed carry, the state bar, redistricting, hunting and fishing and more.
Some of the initiatives even received brief second lives, as committees made minor language tweaks in order to give lawmakers another chance to vote. Still, nothing stuck — not even the one amendment proposal that did garner some bipartisan support, Senate Bill 563, which if approved by voters would have established a mental health trust fund in the Constitution.
At the end of the day, enough Republicans were willing to defect. It only took three.
“That is a very heavy lift for legislators,” House Majority Leader Vinton said in a press conference the day after the Legislature adjourned. “And while we did not get the votes that we needed to put any of those on the ballot, there was great discussion and generally much more agreement than disagreement on any of those issues.”
Fitzpatrick, the Senate Majority Leader, agreed that any number of legislators had specific issues with specific constitutional proposals. But he also acknowledged that some Republicans seemed opposed no matter what.
“I just know that there were four or five people that didn’t want to change the Constitution,” Fitzpatrick told reporters in a post-sine die interview.
In the House, one of those people was Corvallis Rep. Wayne Rusk, a freshman from the comparatively moderate wing of a deeply divided Ravalli County Republican Party.
“My hesitations with respect to the Constitutional amendments were twofold, beginning with the fact that the high bar to amend a governing document was intended to transcend partisanship and faction with consensus,” Rusk told MTFP via email. “We indeed had the ‘letter’ of the law satisfied (supermajority), but lacked the ‘spirit,’ or the intent of the law (bipartisanship).”
Second, Rusk said, he questioned whether some of the measures would actually “achieve the ends for which they were written.”
“I was not alone in these concerns, and at the Constitutional level felt it my responsibility to lay partisanship aside, and declined to support them,” he wrote.
Buckley said she was stunned that Republicans were unable to shepherd any amendment proposal through the process.
Fitzpatrick said he wasn’t bothered.
“I think somebody asked me before the session started whether we were going to pass the constitutional amendments,” he told reporters after the session ended. “And I said, ‘probably not.’ I didn’t expect to pass any, we didn’t pass any. Do I think it’s a loss? No. We’re ultimately here about passing bills and passing legislation and getting them to the governor. That’s what we’re here to do. Constitutional amendments, I think they’re kind of a distraction at the end of the day.”
Mara Silvers contributed reporting.
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