On Thursday, the Montana Senate granted initial approval to a bill designed to define the Legislature’s authority in conducting investigations and acquiring documents via subpoenas. The measure was developed in response to a long-standing dispute between Republican lawmakers and the Montana Supreme Court over the separation of powers.
Senate Bill 490, sponsored by Sen. Greg Hertz, R-Polson, would clarify that the scope of the Legislature’s investigatory powers includes any subject under a broad umbrella of public policy areas. That, Hertz said, would remedy the issue the Montana Supreme Court identified when it ruled a raft of legislative subpoenas invalid in 2021 on the basis that they lacked legitimate legislative purpose.
The Senate approved the bill on its second reading on Thursday with a 34-16 vote along party lines, as Democrats opposed it. Before moving to the House, the bill must undergo a final third reading vote.
The bill stipulates that the Legislature possesses the authority to conduct investigations.
- Any matter related to obtaining information necessary for the legislature to fulfill its duties of creating, modifying, or revoking laws, allocating funds, and auditing the finances and programs of state and local governments.
- Any situation where the legislature can find a valid purpose for the information being requested.
- “The management of state institutions and public agencies”
- Any issues related to the management of current legislation, proposed legislation, or potentially required legislation.
- “Furthermore, it pertains to addressing flaws within social, political, or economic systems in order to rectify said flaws.”
Put simply, the Legislature has the authority to deem anything beneficial to its functioning.
Hertz addressed lawmakers on the Senate floor Thursday, stating that we all acknowledge the significance of the checks and balances concerning the three branches of government.
That’s become a common refrain among Republican lawmakers since their inter-branch skirmish with the judicial system began during the 2021 Legislature. In that session, debate over legislation specifying how judicial vacancies are filled spiraled into a broader fight about the lobbying practices of the judiciary and the Montana Judges Association, as well as whether the judiciary’s rulings appropriately reflect the Legislature’s increasing conservatism.
Lawmakers formed a special select committee that issued subpoenas to several Montana Supreme Court justices. Justices appeared before the committee but declined to release court records, contending that the Legislature’s subpoenas weren’t properly related to a legislative purpose and thus exceeded the branch’s authority.
During the interim period, the select committee persisted in its tasks and put forth various legislative proposals for the 2023 session, including the recommendation of SB 490.
Democrats have been vocal defenders of the court’s integrity during the fight. In debate Thursday, Sen. Jen Gross, D-Billings, rose in opposition to the bill, calling it “overly broad and far reaching.”
In addition to outlining the extent of legislative subpoena powers, the bill establishes a presumption of constitutionality for such subpoenas. It grants the authority to issue subpoenas to any committee, be it standing, interim, special, etc., as well as legislative leadership.
There are certain provisions in place. Subpoenas must state their legislative purpose. If an individual who is subpoenaed believes that the requested records may contain confidential information, they can inform the issuer and provide a notice of denial along with an explanation. Furthermore, those who have been served can also request an extension to submit the requested documents.
The subpoena fight in 2021 was the most prominent flare-up in a saga that’s played out for years. Some Republicans expressed consternation at the court system — now the only branch of government in Montana that the GOP doesn’t dominate — long before the 2021 session. Those criticisms have intensified over the past two years as plaintiffs challenged the constitutionality of roughly two dozen laws passed by the Montana Legislature last session, resulting in several GOP policies being blocked by court orders. That dynamic also became explicit at times during the high-dollar 2022 Supreme Court race between incumbent Justice Ingrid Gustafson and Public Service Commission President and conservative attorney James Brown. Gustafson was the eventual victor despite Brown’s endorsement by the Montana GOP and prominent Republicans.
Several other GOP-backed bills proposed this session also intersect with the conflict, trying to direct judges to recuse themselves if they’ve received campaign donations from attorneys in a given case, open up the proceedings of the judicial discipline process or change injunction standards.
