The door to the Senate Chamber at the Montana Capitol. (Micah Drew/Daily Montanan)
The unrest among Montana’s Republican legislators has mostly been contained to the Senate chamber, but criticism with how Senate President Matt Regier is conducting business spread to the House in recent days.
On Monday, House Majority Leader Steve Fitzpatrick, R-Great Falls, sent a series of emails to Regier about a number of bills that had been transmitted to the lower chamber without fiscal notes, or cost estimates, and threatened to kill them in the House if not remedied.
Regier told the Daily Montanan the correspondence was unprofessional and “obviously political.”
In the bill drafting process, staff from the legislative branch or Governor’s budget office can flag a bill, indicating a fiscal note that describes the impact to the biennial budget may be warranted.
“Without an accurate evaluation of the fiscal impact of each piece of legislation, the Legislature will not have an accurate understanding of how much money is being spent and the ultimate impact of all spending decisions,” Fitzpatrick wrote. “In fact, it would be quite possible for the Legislature to violate Article VIII, Section 8, the balanced budget provision, of the Montana Constitution without a sufficient number of fiscal notes.”
The scenario that Fitzpatrick outlined is possible: If the lawmakers pass bills without properly tying them back to the budget, the bills may authorize thousands, if not millions, to be spent without specifically budgeting for them, creating the constitutional imbalance.
However, according to joint legislative rules, it is up to the “presiding officer” of each chamber, committee leaders, or individual bill sponsors to actually request the fiscal evaluation, which can be disputed and rebutted if a bill sponsor feels it is not accurate.
As of Wednesday afternoon, 166 bills introduced into the Senate had been stamped as “probable” for warranting fiscal notes.
Fitzpatrick flagged three bills by name that the House had received without fiscal notes, but said, “It is my understanding there are many other bills currently in process in the Senate, some of which may have a fiscal impact in the millions of dollars, where fiscal notes have been requested, but you have not approved the requests.”
The email said that a preliminary analysis by Fitzpatrick showed a roughly $300 million general fund impact from the bills. A list of bills shared with the Daily Montanan also showed closer to $100 million in estimated fiscal impacts over the next two biennia to the state’s general fund, plus additional spending from other accounts, including federal funds.
“I am sure you know failing to evaluate the fiscal impact of legislation may cause significant problems for the appropriations process. Without an accurate evaluation of the fiscal impact of each piece of legislation, the Legislature will not have an accurate understanding of how much money is being spent and the ultimate impact of all spending decisions,” Fitzpatrick wrote “In my opinion, requesting fiscal notes is not an optional activity and may be unlawful.”
Regier replied in an email to Fitzpatrick that under the joint rules of the Legislature, a committee or a bill sponsor can request fiscal notes. He wrote that he “told my chairs multiple times that I would leave it up to them if they wanted a FN on some of the questionable bills.”
“I believe it should be more on the side of legislators to determine than our staff,” Regier said.
Speaking to the Daily Montanan on Wednesday, Regier said that he was taking a different approach that other Legislative leaders have in the past. He reiterated that he wanted the lawmakers to be in the driver’s seat and carry the onus of requesting fiscal notes if they felt a bill warranted it, rather than deferring to staff, including those from the Governor’s budget office.
However, he also noted that “death by fiscal note” is a common refrain in the Legislature, as bills with higher costs end up moving through the finance and appropriations committees of the respective chambers, adding opportunities for them to pass or fail on their merits.
“Death by fiscal note, it’s not a secret,” Regier said.
Using several examples from the list of bills that hadn’t received fiscal notes but were estimated to have large fiscal impacts, he said that if a legislator thought a bill could cost tens of millions of dollars, they would have requested one.
“Why should (the governor’s budget office) get first crack at it? That’s my political stance. We should be debating this,” Regier said, pointing to the fact that legislators can refute fiscal notes. “A fiscal note is their opinion of what it’s going to cost.”
Regier also said that when he previously served in the House, he sat on the Appropriations Committee and said it wasn’t unusual to have the lower chamber request fiscal notes for Senate bills. The out-of-proportion response from Fitzpatrick, Regier said, showed it was a political affront, and not merely a concern over rule-following.
Fitzpatrick originally wrote that if Regier was unwilling to request fiscal notes on bills, lawmakers in the lower chamber would “have no choice but to kill the legislation in the House because of its uncertain fiscal impact or alternatively … may ask the Governor to veto the legislation if the legislation passes the House.”
However, he walked that statement back on Tuesday, telling the Daily Montanan that since fiscal notes can be requested by either chamber on a bill, he wouldn’t kill any bills just based on the Senate decisions.
“This is something that needs to be documented. I think it needs to be clear that there’s a problem,” he said, adding that he believed fiscal notes should be automatically attached to bills during the drafting process. “We are here to protect the taxpayer and I don’t think I should have to remind anybody to do that.”
As of Wednesday afternoon, at least eight bills Fitzpatrick raised concerns about had new fiscal notes requested by either the House or the Senate, and he indicated he was satisfied with the progress.