Lawmakers Debate a Barrage of Bills, Key Deadlines Arrive, Right-to-Work Bills Go Down and the Judiciary Stays Nonpartisan
Montana 67th Legislative Session - Week 9
March 11, 2021
Montana House and Senate Adjourn for Mid-Session Break After Breakneck Floor Sessions
After days of marathon sessions, the Montana House of Representatives and Senate adjourned for a nearly week-long break, having advanced more than 200 bills between the two houses in just two days.
The break falls on the “transmittal” deadline, in which all bills that don’t have spending attached must advance from the house they originate in, or are considered effectively dead.
This session, the week leading up to transmittal brought a flood of bills that many lawmakers said was unprecedented in recent years, attributed to a combination of freshman lawmakers eager to bring new legislation, coordination issues between staff and lawmakers working the Capitol and from home and excitement about a new Republican governor.
In a press call, Senate Minority Leader Jill Cohenour, D-East Helena, called the crush of bills that left lawmakers debating late into the evening “unheard of.”
“You just know that those bills were not vetted like they should’ve been,” Cohenour said. “The ability of Montanans to engage in the legislative process was cut short, to say the least.”
In an email, Kyle Schmauch, communications director for Senate Republicans, called pre-transmittal crunch like this session’s “normal.”
“Especially considering we're in the biggest pandemic in 100 years, having the first in-person/virtual hybrid session in Montana history, have an incredibly large number of freshmen in the House, etc, this session has been very organized and is moving along well,” Schmauch wrote.
The Senate met for just over 15 hours on Monday, working through four different agendas and debating and voting on more than 100 bills before adjourning for the break just before midnight. Among the bills lawmakers passed were Senate Bill 280, which would require a person to acquire a court order indicating their sex was surgically changed in order to change their sex on a birth certificate, and Senate Bill 242, under which companies would be prohibited from selling a user’s GPS data without their consent.
Cohenour said her caucus took pride in the passage of bills like Senate Bill 357 from Sen. Jen Gross, D-Billings, which would expand the practice of telehealth in the state, and Senate Bill 236 from Sen. Shane Morigeau, D-Missoula, which aims to increase transparency in health care pricing.
Senate President Mark Blasdel, R-Kalispell, said he’s proud of how quickly the Legislature moved Senate Bill 65 to Gov. Gianforte’s desk. The bill, signed into law on Feb. 10, established new COVID-19 liability standards for businesses, raising the bar to bring a lawsuit from “negligence” to “gross negligence.” Gianforte previously said the bill was critical to rolling back the statewide mask mandate, which he did officially on Friday, Feb. 12.
Democratic leadership has criticized Republicans for the areas they’ve focused legislation on during the first half of the session.
House Minority Leader Kim Abbott, D-Helena, pointed toward the goal Democrats declared at the start of the session of creating jobs and expanding economic opportunities for Montanans, saying Republicans have focused elsewhere.
“The first half of the session, Republicans have focused on a barrage of attacks on women, children and minorities, which shows their priorities, unfortunately,” Abbott said in a press call.
At the end of their lengthy Tuesday floor session, Speaker of the House Wylie Galt, R-Martinsdale, thanked representatives for their hard work.
“It’s been a long couple days, but I’m proud of this body,” Galt said. “We accomplished a lot in a short period of time, and everyone has remained respectful toward each other.”
At the request of Rep. Lola Sheldon-Galloway, R-Great Falls, lawmakers sang the first verse of the Montana state song before adjourning until Monday, March 8, when the Legislature will reconvene and begin to focus on passing a balanced budget.
UM Legislative News Service reporter James Bradley contributed reporting to this story.
Lawmakers Split Votes on Broadband Bills
Both Republicans and Democrats have listed expanding access to high-speed internet in the state as one of their priorities this legislative session and the flush of bills that lawmakers debated before adjourning for their mid-session break included a slate of legislation aimed at doing just that. Ahead of their key deadline, they advanced three bills, but killed another on a final vote after it had passed a previous vote on a wide, bipartisan margin.
House Bill 494, sponsored by Derek Harvey, D-Butte, would establish a statewide “dig once” policy, requiring the Department of Transportation to notify telecommunications companies of the opportunity to lay fiber optic cable during construction of a highway. Harvey noted that 90% of the cost of laying new broadband cable lies in the initial dig. That bill cleared the House with near-unanimous approval.
Two measures from Sen. Jason Ellsworth, R-Hamilton, to expand broadband development both cleared the Senate. Senate Bill 51 would exempt some broadband companies from property tax, so long as they reinvest the savings into laying additional fiber optic cable, while Senate Bill 297 seeks to establish a $2 million grant program for broadband companies looking to provide service to rural areas.
However, the House killed a broadband bill from Rep. Kelly Kortum, D-Bozeman, that would have allowed cities and towns to partner with and own broadband utilities. House Bill 422 died in a final vote in the House 35-64, by a nearly opposite margin it passed its initial vote, 68-32. The reversal came a day later. Montana Public Radio reported that lawmakers received a flier in their mailboxes listing opposition from major telecom companies between the votes.
Bills Changing How Child Protective Services Work Fail On Thin Votes
Right before the key mid-session deadline for general bills, lawmakers voted on a series of child protective services bills, some going down in razor-thin votes. Rep. Dennis Lenz, R-Billings, sponsored many of the measures, including House Bill 356, which would have prohibited anonymous reporting of child abuse and neglect cases.
During a House debate on the bill, Lenz said the bill would help drive down removal rates of children by preventing retributive reporting by spouses and others with a vendetta against a parent.
“Anonymous reports made to the department are driving a lot of the reason why we are hovering around number two [in the nation] for removal of children.” Lenz said. “We’re leading the way, folks. That’s something we’re trying to change.”
However, after the bill barely passed an initial vote 51-49, the House defeated it in a final 49-50 vote, with concerns raised by opponents that the bill would discourage legitimate reporting.
“Anonymity is really important. I think if our ultimate goal is to protect our kiddos, this would eliminate protections for kids, and would potentially enable a continued cycle of violence,” said Rep. Alice Buckley, D-Bozeman.
Lawmakers also voted down House Bill 515 from Rep. Jeremy Trebas, R-Great Falls, in a 41-59 vote. That measure would have changed the standard for removing a child from a home from “imminent or apparent danger of harm” to just “imminent danger,” limiting the situations that would qualify for removal.
Montana Legislature Defeats Right-to-Work Bills After Union Backlash
As union members filled the halls and galleries of the Montana state Capitol the week of March 1 to protest a number of anti-union bills waiting on votes in the Legislature, lawmakers killed them one by one.
House Bill 251, sponsored by Rep. Caleb Hinkle, R-Belgrade, would have established “right-to-work” in the state, meaning individuals could not be forced to join or affiliate with a union in order to be hired for or maintain a job. The legislation would have also prevented union employers from automatically deducting from an employee’s wages to pay dues or fees, instead requiring written consent from the employee.
Hinkle brought the bill after an incident he said he experienced in which, after being hired for a minimum-wage job, his employer forced him to pay his entire union dues in one sitting, which he could not afford, causing him to lose his job.
He cited the U.S. Supreme Court decision in Janus v. AFSCME (2018), in which the court ruled that public-sector unions may not require members to pay fees for collective bargaining.
“Choice is indeed a constitutionally protected worker right in the public sector,” Hinkle said. “Workers are choosing to join those unions. Why not give them the choice in the private sector as well?”
The bill barely squeaked out of the House Business and Labor Committee in a 10-9 vote after drawing massive condemnation from union representatives and employees who said the bill would all but destroy the power of unions to bargain for wages and represent their workers.
On Monday and Tuesday, hundreds of local union members lined the halls of the Capitol, most wearing masks and holding signs asking lawmakers to “stop the war on workers.” Since the beginning of the session, unions have rallied large groups of workers to testify in opposition to “right-to-work” bills seeking to strip unions of some of their powers.
“These are just bills to attack the rights of workers to collectively negotiate,” said Al Ekblad, executive secretary of the Montana AFL-CIO. “It’s designed to make the rich richer.”
Union supporters spoke against the bill on the floor, including Rep. Derek Harvey and Rep. Jim Keane, both Butte Democrats. Keane said he had been looking forward to a session focused on jobs and infrastructure, and was disheartened by HB 251 being considered at all.
“The very first bill on the 44th day for jobs is to kill these members’ [jobs],” Keane said, gesturing to the dozens of union workers packed into the House gallery.
HB 251 went down in a 38-62 vote to a smattering of applause from workers in the gallery and loud cheers from hundreds gathered in the hall outside the House chamber.
The day before, the Montana Senate killed two similar bills in narrow votes during their 15-hour marathon session.
Senate Bill 89, sponsored by Sen. Keith Regier, R-Kalispell, would have prohibited public union employers from deducting fees from an employee’s monthly pay. Before senators amended the bill on the Senate floor, it would have also prohibited joining a union as a prerequisite for employment or maintaining employment -- similar to HB 251.
The bill would have codified elements of the Janus decision, and Regier said that public unions should be required to pay to collect their own dues, rather than using taxpayer money to have public employees do so automatically.
But opponents of the measure said Montana has been complying with the Janus decision since it was handed down, and that the bill was unnecessary and would end exclusive representation, making the process of bargaining for wages and working conditions more complicated.
That bill went down 22-28 in the Senate.
The senate also defeated Senate Bill 228, sponsored by Sen. Greg Hertz, R-Polson, in a 25-25 vote. The bill would have expanded the window to withdraw from a union to any time, so long as two weeks’ notice is given to an employer. It would have also prevented former union employees from rejoining a union for one year after they leave.
The House did advance House Bill 289, however, which seeks to align Montana law with the Janus decision, repealing a section of code that allowed public unions to charge dues to nonmembers. That bill passed a final vote in the House 86-12 and will be heard by the Senate after the transmittal break.
Bills to Make Judicial Branch Partisan Voted Down in House; Repeal of Judicial Nominating Committee Heads to Governor’s Desk
The Montana House of Representatives has defeated two bills that would have introduced partisan labeling to the state’s judicial branch as some Republicans said the measures would be akin to “pouring gasoline on a fire” of deepening partisan divides.
House Bill 342, sponsored by Rep. Matt Regier, R-Kalispell, would have required that people running for vacancies at the district and state levels be listed on ballots as members of a party, whether Republican, Democrat or otherwise, and would have made it lawful for political parties to contribute to the campaigns of partisan judicial candidates.
During the bill’s run through the House, Regier frequently cited an instance of a judicial candidate in Montana contributing over $20,000 to the campaign of a political candidate, which Regier said indicated that judges have biases, and should be required to make that transparent by declaring party loyalty.
“Our judicial candidates do have their own mindsets; they have their own thoughts, they have their own worldview. I believe we should let voters know that,” Regier said during debate over the bill on the House floor on Feb. 23.
But opposition came from Democrats and some Republicans who worried about the bill’s implications for the integrity of Montana’s judicial branch.
“House Bill 342 takes on the politicization of the judiciary branch -- this is a concern held by many Montanans,” said Rep. David Bedey, R-Hamilton. “Unfortunately, the solution proposed here is akin to throwing gasoline on a fire in order to fight it. Those who haven't given up on the task of conserving our constitutional order must resist this bill.”
The House ultimately voted that measure down 44-56.
A week later, the House also defeated House Bill 355, sponsored by Rep. Scot Kerns, R-Great Falls. That bill started as a near-identical copy of HB 342, before a committee amended the bill to provide for the partisan election of Montana’s Supreme Court Justices exclusively.
HB 355 went down 44-56, the same margin as HB 342.
One measure revising the judicial branch has passed the Legislature and is heading to the governor’s desk, however. Senate Bill 140, sponsored by Sen. Keith Regier, R-Kalispell -- father to Rep. Matt Regier -- would repeal Montana’s Judicial Nomination Commission, the body in charge of compiling a list of nominees for the governor to choose from when filling a judicial vacancy. Instead, the governor would be allowed to appoint judges directly.
The bill drew support in its initial hearing from Lt. Gov. Kristen Juras, who testified on behalf of Republican Gov. Greg Gianforte. Juras told the committee the Judicial Nomination Commission, whose members are not confirmed by the Senate, is not accountable to anyone and cannot be removed. Juras also said the commission is not nonpartisan, though the bill would allow a partisan figure -- the governor -- to directly appoint judges.
“The appointed judiciary is a farce. It’s much more political than elections,” Juras told committee members. “Let’s get rid of the fiction that this is somehow a nonpartisan process. Moving forward, Governor Gianforte is committed to appointing well-qualified judges in a transparent manner.”
Juras, an attorney, ran for Supreme Court in 2016 but was defeated by now Justice Dirk Sandefur.
During debate on the bill on the Senate floor, Sen. Jen Gross, D-Billings, attempted to amend the bill to prohibit the appointment of members of the governor’s family, or the lieutenant governor or members of the governor’s staff and cabinet for a period of two years after they leave their position. Gross, who echoed concerns from other Democrats over the closed-door interviews the bill would allow, said the amendment would prevent a governor from appointing their closest political allies.
“This amendment would actually bring more accountability and more transparency to the process,” Gross said.
That amendment failed, and the bill passed out of the Senate down party lines, with 31 Republicans voting for the measure and 19 Democrats against. During a marathon floor session on Monday, March 1, the House of Representatives also passed the bill down party lines, 67-32, with one lawmaker excused.
Former Rep. Brady Wiseman, D-Bozeman, served in the House of Representatives in 2005, 2007 and 2009. In a phone call, he said it’s “highly unorthodox” for so many bills to have been heard in the opposite house before the transmittal deadline, which includes HB 140.
“We’re seeing all this crazy legislation that [Republicans] don’t actually talk about during the campaign. But it turns out, we now know what their true priorities are -- not jobs or the economy,” Wiseman said in a phone call. “Major policy bills like this upsetting the balance of power of how judicial vacancies are filled: that’s radical, that’s highly radical.”
SB 140 now awaits Gianforte’s signature, and he has indicated he will sign it into law.
Austin Amestoy is a reporter with the UM Legislative News Service, a partnership of the University of Montana School of Journalism, the Montana Broadcasters Association, the Montana Newspaper Association and the Greater Montana Foundation. He can be reached at firstname.lastname@example.org.