Senate Republican leadership for the 2025 session after caucus elections on Nov. 14, 2024. From left to right: Sens. Daniel Zolnikov, Dennis Lenz, Tom McGillvray, Matt Regier, Ken Bogner, Sue Vinton and Barry Usher. (Photo by Blair Miller, Daily Montanan)
As it stands now, the Montana Legislature has more than 30 bills ready to go to try and get the state’s judiciary, a co-equal branch of government, to heel to its whims and will.
This is not a new tactic by the Republicans in Helena, rather a four-year effort that looks to continue unabated for years or until the Republicans take a civics course — or lose power.
Historically, their efforts to limit the courts, and prevent them from striking down bad laws that lawmakers create, tend to be the equivalent of nibbling around the edges and not successful. But that’s not to say that of the thousands of bills that are being drafted for consideration, some of them couldn’t inflict considerable damage to an independent judiciary.
For example, the movement to politicize and require party affiliation for judges is a pernicious and terrible idea — and I would know: I covered Wisconsin courts that have a system similar to what Montana is proposing, and it takes every issue and makes it one of politics and not law. And that’s why groups studying the courts point out that some of the least effective state judicial systems are the ones that have turned them from non-partisan to political.
It’s also why any successful attempt to require party affiliation in the courts should be met with a constitutional drive to eliminate it, such that the Montana Legislature can’t turn every state issue into a partisan battle, something that most Montanans grow weary of.
And that leads me to question why the Republicans have used a considerable amount of their time during the short legislative sessions to try, with mixed results, to reshape the judiciary in their own image.
The reason why their efforts have fallen so flat is that their interpretation of a problem is really not a problem. In other words, they don’t realize that the reason the Montana courts continue to irritate, inflame and enrage them by thwarting their will isn’t because of any laws they’ve passed, it’s because of the state Constitution.
In other words, if the problem with Montana is the state Constitution, then the only remedy is changing the state Constitution.
But that means renegotiating with the people of Montana its contract for governing. The Montana Constitution is something that has been repeatedly pointed to as a model upon which other countries have based their own compacts with their respective constituents.
What is amazing to me still, even as a native-born Montanan who has had the opportunity to live and practice journalism elsewhere, is that few residents in other states have as much awareness of their state’s respective constitution as the average Montana has of theirs. In fact, some — if not many — residents often believe they live under one constitution, the U.S. Constitution. But there are 50 states and 50 distinct state constitutions, often with several unique quirks and features. But none is so forward-looking and arguably as comprehensive as Montana’s.
That is something to be proud of, and it’s also something that, maybe better than any other state’s, represents the independent, ferocious and libertarian streak that Montana has embodied for generations.
Constitutions are something special, something almost above the law itself: They are the social contract between the governing and the governed, which spells out the things that leaders and officials can do on behalf of the people, the things they must do, and the powers reserved to the people.
For example, in the Republicans’ never-ending love-affair with fossil fuels, they have manipulated and even gutted Montana statute in order to try to push through more mining, more oil and gas production and more polluting power plants, including coal, despite a national and even world trend against such ideas.
And it has been a source of almost unmitigated rage for Republican lawmakers that the courts have consistently and calmly rejected those efforts, not in a power struggle to show up the lawmakers (although it’s certainly been interpreted as such by the legislative leadership recently), but because the state’s constitution guarantees a “clean and healthful environment” not just for the current generation, but for the future.
Remember that part of the constitution was formulated in the wake of a century-plus degradation by large, out-of-state corporations that wrecked our air, water and land, and still continue to jeopardize the health of residents today. That’s why delegates decided to add the strongest environmental protections for the “last best place.”
The quest for a clean environment is not a matter of opinion, it’s a matter of public record, and it’s something that nearly three-quarters of Montanans still ferociously support, and for good reason. We can still visit the nation’s largest Superfund site in Butte. We still fret about a resumption of mining activities near arguably the state’s most prized river, the Smith.
But what we may be experiencing is a predictable pattern where the state Legislature is creating a cottage industry for attorneys as it passes more laws that run afoul of the constitution, only to have years-long battles that cost the taxpayers millions.
Republicans argue that the highly trained attorneys who occupy the state’s court system don’t understand the law like they do, which is the equivalent of arguing with your doctor just because you have Google.
Instead, it’s the Republican leadership that simply can’t or won’t understand that no matter how many times Montanans keep sending them back to the Legislature, they cannot avoid the constitution.
Senate Majority Leader Matt Regier, R-Kalispell, talks about guarding the power of the Legislature jealously.
That’s fine.
Just let the people guard their constitution with equal zeal.