This story is excerpted from the MT Lowdown, a weekly newsletter digest containing original reporting and analysis published every Friday.
We received an answer last week — well, a very partial one — to one of the most consistent reader questions we’ve seen in our inboxes here at MTFP: Just how much is the state spending to defend all those lawsuits?
All those lawsuits, of course, are the many high-profile legal challenges that have generated headlines from us and other news outlets since voters swept Gov. Greg Gianforte into the governor’s office in 2021, giving Montana Republicans — previously checked by the veto pens of Democratic governors — unified control of the legislative and executive branches of state government.
The result has been a full-throated conservative agenda from the state Capitol — laws that have, among other things, sought to allow permit-less concealed firearms nearly statewide, restrict abortion and block the social media platform TikTok. Opponents of those measures have responded by turning to the courts, where the third branch of government reviews their claims that the new laws infringe on constitutional rights.
The cost of the time-intensive legal work involved in that review adds up as state attorneys, most of them working for Attorney General Austin Knudsen’s Department of Justice, defend challenged laws in court — a dynamic that has been much remarked upon in legislative debates. Hence those reader questions, and various efforts by our newsroom to answer them. We’ve reported, for example, that the current two-year state budget includes an extra $1 million a year to support litigation efforts.
We found out where a chunk of the state’s litigation dollars are going this week when Knudsen’s office produced a partially redacted copy of an agreement with Virginia-based law firm Consovoy McCarthy PLLC. The firm has been hired to help state attorneys defend the TikTok ban, which was set to take effect on Jan. 1 until being blocked by a federal judge in November in the course of a legal challenge brought by the company and other plaintiffs.
The agency has insisted on keeping some “fees and costs” information in the agreement from the public — because, Knudsen spokesperson Kyler Nerison wrote in an email exchange, those details “may reflect case strategy.” However, the visible part of the agreement, dated to last June, notes that the firm planned to bill the state for $500,000 to retain its services.
Nerison wrote that the nature of a retainer agreement means that the firm could ultimately reimburse the state if it doesn’t end up doing $500,000 of legal work on the TikTok case. He also said via email that the firm is charging $525 an hour.
Knudsen’s office, which argues that the Chinese-owned social media platform poses a major privacy risk for Montana users and threatens national security, has appealed the November ruling to the 9th U.S. Circuit Court of Appeals.
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Consovoy McCarthy has championed several conservative causes in recent years, winning victories before the U.S. Supreme Court in cases that struck down race-based affirmative-action college admission policies and blocked a student loan debt forgiveness plan advanced by President Joe Biden. The firm also represented former President Donald Trump in his unsuccessful efforts to shield financial records from an investigation by the U.S. House.
This arrangement isn’t necessarily typical of the myriad bill-challenge cases working their way through the courts, many of which are being partially or fully defended by significantly less-well-compensated staff attorneys, or contract attorneys from Montana firms. It does, however, provide important insight into how far Knudsen is willing to go to defend the TikTok ban — the first of its kind in the nation and, as such, a law that has brought him a measure of national prominence.
Montanans of different persuasions can certainly disagree about whether the TikTok ban and other bills coming out of the Legislature are good or bad public policy. It’s inarguable, though, that there’s a real cost involved in enacting controversial laws, whatever their merit. As Knudsen works to defend the Legislature’s agenda, his decisions about how to allocate his office’s resources — which, ultimately, are funded by your tax dollars — are worth noting.
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