Lawsuit filed to again open details of draft bills to the public

A government watchdog and members of the public are suing to stop Montana’s Legislature from concealing back-channel communications between lawmakers, lobbyists and “stakeholders” drafting bills.

Legislative staff started redacting details about exactly who is being consulted on draft legislation since September, based on a court ruling granting Republican Sen. Keith Regier, R-Kalispell, privacy in his communications regarding Senate Bill 109, which redrew political districts in 2023. 

The lawsuit filed Wednesday in Great Falls by the Montana Environmental Information Center, Great Falls resident David Saslav and Butte public defender Kaylee Hafer, asks that the Legislature’s redaction stop and that bill drafting details again be public, as they have been for decades. Such information is kept in “junque files,” folders concerning bill drafts that include communications between lobbyists, and legislators, legislative staff and other third parties providing input as a bill is written. 

All three plaintiffs have been denied access to unredacted junque files in recent weeks.

“Until a few months ago, the concept of legislative privilege as a mechanism for concealing documents and communications about official legislative business, including those contained in junque files, had never been raised, considered or otherwise addressed in Montana,” the plaintiffs argued in the lawsuit filed in Cascade County District Court.

A junque file might show communications between oil refinery lobbyists and a lawmaker proposing a tax cut for pipelines. The records show when amendments to a bill are being directly submitted by a lobbyist for a government utility, or a teacher’s union.

“There’s a pretty powerful lobbying component that knows how to work the system and basically move their issue,” Derf Johnson of MEIC said Wednesday. “All the legislator needs to do in order to actually put a lobbyist in charge of a particular bill, or an amendment, is designate them, through the bill drafter, as being the contact. You see it all the time. It’s a really frequent practice.”

Particularly when subjects are complex, lawmakers tend to let the lobbyist dictate a bill’s language, Johnson said.

The lawsuit unpacks the original arguments made by drafters of Montana’s Constitution for opening legislative work to the public in 1972, among them Delegate Daphne Bugbee of Missoula. 

“The Legislature passes laws that affect every person in Montana. There is really no justification for keeping this process a secret from the people. The people need to know and have a right to know the reasons for committee votes,” Bugbee said at the convention.

In June, Regier successfully fought off an attempt to produce his communications with third parties concerning the redrawing of the state’s five Public Service Commission districts. 

Legislators passed the district changes along party lines in 2023. Voters sued, alleging that Regier’s districts were gerrymandered to benefit the state’s all-Republican PSC, which regulates monopolies, including the state’s largest utility. 

Objecting to voters’ request for Regier’s information, Montana’s Department of Justice argued that the will of the Legislature, which passed the districts into law, and the governor’s approval of the legislation, is what was relevant to the public. Regier’s communications in drafting the bill were private.

“Any such statements by Senator Regier cannot change the intent of the other 149 legislators voting for or against SB 109, or the governor signing SB 109,” argued Brent Mead, deputy Montana attorney general.

To a degree, District Judge Christoper Abbott agreed with Mead, but limited what documentation would be withheld to communications with non-government parties. 

Abbott in deciding what Regier had to produce concluded that legislators, as a legal defense, had a right not to testify about their motivations in connection with legislative acts, a less-absolute, common-law version of the legislative privilege granted to members of Congress by the U.S. Constitution.

Regier argued that his privilege not to testify about his legislating also applied to not producing documents. Abbott winnowed the list of what documentation was public based on whether the communications were with other government agencies, legislative employees, or lobbyists and stakeholders. 

Abbott posed a scenario in which legislators were too afraid to fact-find or write bills if the details were public. 

“If a legislator knows that undertaking factfinding or proposing a bill will down the road require them to fork over every scrap of paper (or digital record) they touched in that process, that potential chills legislative activity just as surely as being brought before an adverse tribunal for questioning,” the judge concluded.

In practice, junque files can show more than lawmaker’s exercises in factfinding. It isn’t uncommon for junque files to contain evidence of laws amended directly by lobbyists.

Gerrymandering cases can be difficult, Abbott conceded, because knowing the motivations of legislators can be critical. “The Court cannot create an exception, however, just to cure this problem,” Abbott ruled. 

By September, attorneys for the Legislature had crafted a form allowing lawmakers to opt out of disclosing communications with lobbyists and “stakeholders,” meaning parties directly benefiting from or adversely affected by proposed bills. 

“The purpose of this document is to inform you of your rights under this order to exercise your privilege as a legislator to not provide communications that are subject to legislative privilege to the public,” the waiver circulated by Legislative Services read.

The lawsuit over the PSC district has continued without the information denied by the court. It is the second lawsuit the plaintiffs have filed over PSC districts in three years. The first, filed in late 2021, successfully argued that lawmakers had violated the “One person, one vote” provision of the U.S. Constitution by redrawing PSC districts only once in five decades, during which the districts became so lopsided in population that the voters in northeastern Montana had just as much representation on the commission as those in the southwest, despite having 54,000 fewer residents. 

In the first case, a panel of three federal judges required Montana’s secretary of state to produce districts that passed legal muster ahead of the 2022 primary election. The justices then tweaked the districts, submitted by Secretary of State Christi Jacobsen, to ensure that all of the Blackfeet Reservation was in the same district, so as not to water down the voting strength of Indigenous voters.

The 2023 Legislature, the first to meet with data available from the 2020 Census, gave the PSC maps another redraw, this time carving six of Montana’s seven cities into different districts, doing to cities what the federal justices prevented Jacobsen from doing to Blackfeet Reservation.

Voters who brought the 2021 lawsuit sued again, arguing that the Legislature, by approving the map submitted by Sen. Regier had diminished the collective voting power of Montana’s largest cities, through a practice known as “cracking.” Montana’s Democratic voters are concentrated in cities. Dividing those communities into different districts meant that Democratic voting blocks were minimized. 

The law firm representing the junque file plaintiffs and the PSC district plaintiffs is the same, Upper Seven, but there’s yet another junque file cross connection. MEIC, one of the plaintiffs in the lawsuit filed Wednesday, was the victor in a 1995 lawsuit that had assured public access to junque files until Abbott’s ruling this summer. 

In 1995, MEIC sued the state Environmental Quality Council and Legislative Services for access to junque files concerning draft bills about environmental law. In that case, the state argued unsuccessfully that legislative employees were immune from disclosure. Allowing the public to see communications behind draft bills “may have a chilling effect on the Legislature by stymieing fresh thought by premature public posturing on the subject,” the state argued. But no one argued against the public’s right to know.

Judge Thomas Honzel sided with MEIC.

“The court does not share that view. Neither did the framers of the Constitution. They declared that the public has a right to examine documents held by public agencies which do not touch upon matters of individual privacy. The framers did not except bill drafts or bill-draft requests from that right,” Honzel ruled.

It isn’t uncommon for District Court opinions to differ. The junque file issued has not been before the state Supreme Court, which has never prioritized legislative privilege over the public’s right to know.