The door to the Senate Chamber at the Montana Capitol. (Micah Drew/Daily Montanan)
In a lengthy fight on the Senate floor Thursday, Republicans accused Democrats of playing politics and ushering in a “dark day” for Montana after a successful move by Minority Leader Sen. Pat Flowers to suspend an ethics investigation into Sen. Jason Ellsworth and refer it to the Department of Justice.
Nine Republicans joined Democrats to support the motion, leading to the outcry.
“I’m disappointed. I’m embarrassed to be in this chamber at this point,” said Sen. Barry Usher, R-Billings. ”There may be some problems here in our house. It’s our responsibility to clean house, and we just turned our back and said, ‘It’s OK.’”
But Democrats alleged the cries were hyperbolic, and for more than 90 minutes, both parties lobbed accusations of political gamesmanship within the chamber.
The Senate launched the ethics investigation after Ellsworth, R-Hamilton, quietly signed a $170,000 contract with a business associate, and the Legislative Auditor found the deal to be an abuse of power and waste of government resources.
The Senate convened an Ethics Committee, which started an official investigation. On Monday, the committee adopted allegations of both ethical and criminal misconduct, based on the auditor’s report.
In bringing the motion to suspend the investigation by the Senate and move it to the Department of Justice, Flowers said the probe had become a distraction from the real work the body needed to accomplish.
Flowers said the Senate Ethics Committee’s work had veered into a prosecutorial role rather than one of fact finding, and the investigation — comprising criminal allegations — would be better handled outside the Senate, at least for the time being.
Flowers also said a motion from Republican Senate Majority Leader Tom McGillvray, R-Billings, to oust Ellsworth from a budget committee earlier in the session was premature, demonstrated a “rush to judgement” and showed politicization by the GOP.
“I think we’re going to continue to see politics play and play and play on this issue,” Flowers said. “And I think the solution to avoid the politics are to send it to the Department of Justice.”
The Montana Department of Justice is overseen by Montana Attorney General Austin Knudsen, a Republican who is facing his own set of disciplinary issues before the Montana Supreme Court. Knudsen is also a former Speaker of the House from Culbertson.
But Sen. Forrest Mandeville, R-Columbus, defended the committee’s work. Mandeville, who leads the committee, said the motion itself infused a criminal element into the investigation.
“We are doing our best to do the right thing, to move this forward in an unbiased manner,” Mandeville said.
Flowers also said his motion was only to suspend the ethics investigation, not terminate it; the committee could ultimately make an informed decision after any findings from the DOJ.
GOP infighting
The political dispute Thursday replayed a fight on the Senate floor the first day of the 2025 legislative session.
At the time, nine Republicans joined minority Democrats to turn down a proposal from Republican leadership that would have changed the makeup of committees, which the GOP majority said squandered the caucus’ power.
Thursday, the Senate eventually voted 27-22 to support Flowers’ motion with Ellsworth and eight other Republicans joining Democrats after earlier attempts to replace the proposal and continue the investigation in house.
Ellsworth remained quiet during debate on the floor and declined to comment on the outcome.
Some Republicans, though, said they had the authority and obligation to ensure ethics in their own body.
“This is a problem in our house,” said Sen. Greg Hertz, R-Polson. “The Constitution gives us authority to look at it and to find what happened here. And we owe it to the constituents of Montana to do that.”
Sen. Mark Noland, R-Bigfork, said the move forced Republicans to relinquish control they had earned from voters.
“I hope you guys can feel good about yourselves,” Noland said. “You played some shenanigans. You played some games. Way to go. You’re in power. What else are you gonna do?”
“Republicans aren’t in power,” he said. “This is chaos.”
Motion after motion
After Flowers made his initial motion, Republicans made various attempts to replace it, and at one point, Senate President Matt Regier, R-Kalispell, ordered a pause for the body to decipher its rules.
Republicans questioned if the Department of Justice had authority in the matter, and McGillvray said it would be “unprecedented for the DOJ to take up an investigation without an official charge. There’s no charge here.”
Democrats said the Attorney General could refer it to the county attorney if necessary,
In an attempt to compromise, President Pro Tempore Ken Bogner, R-Miles City, made a substitute motion to simultaneously refer the matter to the Department of Justice and continue with the work of the bipartisan ethics committee.
The substitute motion failed along party lines.
Sen. Daniel Zolnikov, R-Billings, made his own substitute motion to refer the investigation to the Department of Justice and expel Sen. Ellsworth from the chamber, but Regier ruled the motion out of order.
With the confusion over whether the Senate could send an investigation to the DOJ, Sen. Mandeville made his own substitute motion to refer the matter to the Rules Committee, which also died.
Flowers’ motion ultimately passed, although with questions about next steps at the Department of Justice.
While on the floor, McGillvray received a text from Knudsen, who was watching proceedings from inside the Capitol and said the Department of Criminal Investigation is an “assist-only” investigative agency, “meaning we have to be invited by local law enforcement agency to do what Senator Flowers is asking for.”
The Department of Justice did not respond to an email late Thursday afternoon about how it would handle the referral from the Senate, and Knudsen, who met with GOP leadership at length after the session, did not respond to a request for comment.
Outrage or manufactured outrage
The vote spurred verbal outrage in the chamber, with many Republicans saying the politics of suspending the ethics committee left them angry and embarrassed.
“And you do not want to make me angry, because I have been known to hold a grudge for a long time,” said Sen. John Fuller, R-Kalispell.
Sen. Ellie Boldman, D-Missoula, however, said the matter in question was serious, she hadn’t seen anything like it in 15 years, and Republicans were playing politics too.
“This is about the first day we were here. We all know it. This is a political persecution is what it is, but it’s also a political charade,” Boldman said.
While Democrats argued Republicans were assuming Ellsworth’s guilt and potentially compromising due process, the GOP accused Democrats of giving Ellsworth cover in exchange for effectively ruling the Senate floor by coalition.
Sen. Daniel Emrich, R-Great Falls, alleged Flowers was calling Ellsworth his “golden goose” and accused Flowers of “collaboration” in covering up potential wrongdoing —
to which Flowers replied, “knock it off.” But Emrich also said he would move to expel both Ellsworth and Flowers on Friday — likely to be futile.
Many Republicans decried the state of affairs in the Senate, including Sen. Dennis Lenz, R-Billings, who said he likely would no longer sleep well.
“This is bad for the people of Montana,” Lenz said. “This is bad for the people of this state. This is corruption.”
But Sen. Jonathan Windy Boy, D-Box Elder, said he had seen worse days in 23 years in both chambers.
“We come here to do the best we can to try to represent the majority of our constituents, and the way I see today, regardless of the emotions going over the top here, this is nothing,” Windy Boy said.
After the Senate adjourned, Flowers defended the bid to pause the work of the body’s own ethics committee, and he denied his interest was to protect Ellsworth.
He said the report from the Legislative Auditor released last Friday showed it made sense to question whether the Senate was equipped to address the allegations after they rose to criminal misconduct .
The ethics committee is not a grand jury, he said. He said Republican leadership then politicized the process by trying to remove Ellsworth from a committee, so he concluded it was best to avoid the investigation and get back to business.
“If this is going to continue for the next week, two weeks, three weeks of this process, it was time to get it out of this body,” Flowers said. “Let’s get to work on, actually, legislation, and let the Department of Justice do the investigation.”
Mandeville, the ethics committee chairperson, characterized it differently. He said that the two parties had worked together on the investigation for more than a week — including making concessions to Democrats — but now the minority had decided to “cut us off at the knees … and not even have the findings of fact on possible waste, fraud and abuse.”
“For the minority leader to do that on the floor (is a) big stab in the back,” Mandeville said.