Capitolized is a twice-weekly digest that keeps an eye on the representatives you voted for (or against) with expert reporting, analysis and insight from the editors and reporters of Montana Free Press. Want to see Capitolized in your inbox every Tuesday and Friday? Sign up here.
March 10, 2023
You are now back from the transmittal break.
The second half of Montana’s 68th Legislature commenced on Thursday with extensive meetings held by the House Appropriations Committee. This committee, along with its Senate counterpart, will serve as the primary platform for conducting crucial proceedings over the next 45 days.
Crafting a well-balanced budget is a vital duty bestowed upon the Legislature by the constitution. Although numerous spending proposals worth billions of dollars were discussed in committees during the first half of the session, the true budgetary process commences after the transmittal break. By the end of last week, all non-budget bills were either terminated or transferred out of their respective chambers. Budget bills, resolutions, and ballot referendums must be finalized by April 3.
Lawmakers in this session have a rare chance with a budget surplus ranging from $2.5 billion to $3 billion. There is no shortage of suggestions on how to utilize this surplus, including tax breaks, rebates, infrastructure development, housing initiatives, increased Medicaid reimbursement rates, and numerous other possibilities. By the conclusion of the session, this surplus could potentially create a remarkable investment in state services and stimulate the economy, but it also carries the risk of becoming a significant failure.
During the first half of the session, most of the budget work went to subject-specific budget subcommittees. But next week, the House Appropriations Committee, chaired by longtime budget whiz Rep. Llew Jones, R-Conrad, will begin digging through House Bill 2, the Legislature’s primary biennial spending vehicle. Departments will see their requests for additional staff or programs live or die. Several other regular spending bills, such as for long-term building and capital projects, will also go before the committee, along with other proposals for the ongoing budget, the surplus and various other pots of money. By the end of March, the House will hold a full-day floor session just to take votes on HB 2.
As the second half of the session gets underway, lawmakers (and reporters) will start working on Saturdays. That begins tomorrow with a House floor session scheduled to begin at 9 a.m. The legislative calendar shows, sadly for all involved, Saturday sessions until Easter. On the bright side, Saturday sessions could allow the Legislature to adjourn earlier than anticipated. Pick your poison.
Continuing debates will address issues such as gender-affirming health care for transgender minors and abortion restrictions, with live bills from the first half resurfacing in committees and on the floor of the opposite chamber, regardless of the focus on the budget.
Additionally, with Republicans holding a two-thirds legislative supermajority, the attention towards constitutional amendments is expected to intensify. This majority allows them to propose constitutional amendments for voters’ consideration in the upcoming 2024 election, without the need for support from Democratic legislators. Over time, Republican policy objectives, particularly concerning abortion, have often been obstructed by the Constitution itself or the courts’ interpretation of it.
The GOP has openly acknowledged that dynamic since the beginning of the session and beyond. But they haven’t done much about it: Republicans introduced only seven amendment proposals in the first half, with one already tabled in committee. But dozens more are in various stages of drafting, and since amendment proposals have a later transmittal date, lawmakers have signaled that such bills could occupy more space in committee rooms from now on.
Rep. Bill Mercer, R-Billings, has identified at least one of those proposed amendments: providing for gubernatorial appointments of Montana Supreme Court justices, the latest in a slate of GOP-backed judiciary bills this session. Any amendment would need not only to gather 100 votes across the Legislature, but also to receive approval from voters.
Mercer announced during a press conference after adjournment on transmittal day that there will be a constitutional amendment proposal in the second half. This proposal aims to place a suggestion on the ballot, suggesting that Supreme Court justices should be appointed by the governor and confirmed by the Senate. Additionally, Mercer mentioned that there might be other constitutional amendments that touch upon this matter.
—Arren Kimbel-Sannit
What’s Next
Instead of our usual bill report, Capitolized requested insights from Montana Free Press staff members about their key observations for the second half of the session.
- Heading into the second half of the session, I’ll be interested to see how the debate plays out in the House over a trio of election law changes proposed by the Joint Select Committee on Election Security and passed by the Senate just ahead of transmittal. Outside of the committee’s work, House Bill 774 was a late addition to the first half of the session and would consolidate all elections in Montana (federal, state, local, special district, etc.) on the same ballot in even-numbered years. As it moves through the appropriations process, I’ll be watching to see whether lawmakers there heed the cautionary words of critics in the House and take the slow road of an interim study on the issue, or embrace the proposal as-is with an amendment here and there. And on the education side, not only will we be seeing continued action on early childhood literacy, teacher pay and school choice, but we’ll start to see a more crystalized picture of how the Legislature plans to fund K-12 instruction over the next two years. —Alex Sakariassen, education and election administration reporter
- In the second half of the session, l’ll be keeping close tabs on House Bill 642, which seeks to change the “combined appropriations” rule that the Department of Natural Resources and Conservation uses to determine which wells are spared the rigor of a groundwater permitting process. The Montana Water Use Act that first established a framework for exempting wells has been the subject of some big legislative fights in the 50 years since its adoption, and I expect the scrap over Republican Rep. Casey Knudsen’s bill will be no different. For confirmation, one need look no further than the House Natural Resources Committee’s meeting on Feb. 24, when members haggled over procedural rules and squabbled about DNRC’s willingness to work with Knudsen on amendments to the measure. —Amanda Eggert, energy and the environment reporter
- Several bills that rein in city zoning powers in an effort to promote home construction passed the Senate while similar measures floundered in the House Local Government Committee. Out of the Senate, those bills now head to the House. —Eric Dietrich, deputy editor, economy and housing reporter
Heard in the Halls (on Twitter)
“Today, I urge the Montana Senate Committee to pass #HB218. I provided testimony about being abused in the Montana Mountains during my time in the #TTI . Children DESERVE safety in residential programs! Please stand with children and survivors.”
—Celebrity, media personality and hotel dynasty scion Paris Hilton tweeting Friday about House Bill 218, legislation proposed by Rep. Laura Smith, D-Helena, to strengthen regulations on the so-called troubled teen industry. Hilton is among hundreds of individuals who have alleged they were abused in youth residential programs and has emerged as a prominent spokesperson on the issue.
In Memoriam
Giant of Montana media and endless font of state historical knowledge Chuck Johnson died unexpectedly last weekend at 74. Johnson influenced and aided countless Montana journalists over the years, in addition to leading a long, illustrious career as a dogged but unimpeachably fair state Capitol reporter. He was also chair of the Montana Free Press board.
From the desk of Chief Capitolized author Arren Kimbel-Sannit comes a personal reflection: My encounter with Chuck occurred in February, at the recently established Helena taproom of former Gov. Steve Bullock. It was rather peculiar, but during that brief hour, I comprehended the reason behind Chuck’s legendary status in this region. I will forever be indebted to him for recognizing my prior contributions to the state, even before he personally knew me, and advocating for my appointment to this position. I extend my heartfelt appreciation to Chuck for his exemplary guidance, kindness, and, naturally, his exceptional reporting.
The Price of “Sex”
Lawmakers on the Senate Finance and Claims Committee this morning cast doubt on the accuracy of the fiscal note attached to Senate Bill 458, legislation from Sen. Carl Glimm, R-Kila, that would statutorily define sex as “the organization of the body and gametes for reproduction in human beings and other organisms,” specifying that humans have “exactly two sexes, male and female, with two corresponding gametes.”
To put it differently, the legislation would remove the legal acknowledgment of intersex, nonbinary, and transgender individuals in all areas of state law.
On Friday morning, Glimm informed the committee that the task may seem intimidating due to its extensive content, but it extensively covers various parts of the code referring to sex.
Due to the extensive scope of the bill, certain members on the committee speculated that it would be accompanied by a substantial cost.
So those lawmakers and other opponents of the bill were surprised when it was presented Friday with a $0 fiscal note.
Lobbyist SK Rossi likened the aftermath of a party to a phrase their parents would often use: “I can tell you’ve had a party because the house is immaculate.”
Rossi testified that it is advisable to maintain a sense of suspicion towards something that affects 40 distinct code components and lacks any financial consequences.
Opposing sides pointed out potential financial consequences. Shawn Reagor from the Montana Human Rights Network raised concerns about whether the state would need to contact all individuals who have applied for a birth certificate change to ensure that their gender matches the definitions outlined in the bill. Jennifer Hensley, a lobbyist for Missoula County, questioned whether local governments could face legal responsibility in this matter.
Despite the fiscal note indicating that the bill would have no expense to the state, Amy Sassano, the governor’s deputy budget director, informed the committee that the Office of Budget and Program Planning, responsible for creating fiscal notes, contacted all state agencies and found no evidence suggesting that the bill would result in any costs. However, the situation is slightly more intricate.
“I didn’t say the agencies responded with no concern,” Sassano told Sen. Ellie Boldman, D-Missoula. “I said the agencies responded with no fiscal impact.”
Sen. Janet Ellis, D-Helena, distributed a draft fiscal note prepared by staff at the Montana Department of Corrections. The document doesn’t note any concrete fiscal impact related to the bill, but raises several potential issues.
The bill could potentially lead to conflicts with federal sex discrimination law and the federal Prison Rape Elimination Act, potentially resulting in the loss of federal funding. Additionally, there is a possibility of lawsuits and other important factors to consider.
According to the note, quantifying the costs of litigation that may arise from [the bill] is not feasible. However, the department acknowledges that the fiscal impact would be substantial.
According to Sassano, the technical notes in the Corrections document reside in a vague territory that lies between actual potential fiscal impact and mere speculation. Therefore, the official fiscal note does not address these concerns due to their uncertain nature.
Sassano told the committee that assuming there would be litigation requires more assumptions than what we usually include in a fiscal note.
Glimm stood up for his bill, emphasizing its potential financial consequences.
He informed the committee that we do not bring every bill to Finance and Claims, examining if it will result in a lawsuit. We frequently define things in code without incurring any expenses. Hence, he believed that this falls under our jurisdiction and can be handled without any financial implications.
Thanks to an agreement on the rules between legislative leadership, SB 458 managed to survive the transmittal break without a floor vote.
In February, lawmakers signed a transmittal agreement — not an unusual step — stating that all bills that made it out of one committee but await a fiscal note and a hearing in a budget committee have a later transmittal deadline, even if they’re not revenue bills. By the time lawmakers were rushing to pass general bills in the late hours last week, SB 458 had yet to receive a fiscal note.
Until Friday, SB 458 was categorized as a general bill on the Legislature’s bill tracking website, but it was then changed to a revenue bill.
—Arren Kimbel-Sannit
On Background
Bill creates strict definition for ‘sex,’ legally sidelining intersex and transgender people: For more on Senate Bill 458, see this story on the bill’s first hearing from Mara Silvers. (MTFP)
Colleagues remember veteran Montana political journalist Chuck Johnson: Two giants of Montana media in their own right collaborated on this moving obituary of Chuck Johnson. (MTFP)
