The dome of the Montana Capitol, with the statue of Mike and Maureen Mansfield in the lower center (By Darrell Ehrlick of the Daily Montanan).
The recent brouhaha over trying to discover who was involved in a bill introduced in the Montana legislature is a huge distraction from what really matters — and that, in simplest terms, is the language that became law. Why? Because, in the end, it’s the language of the law that all Montanans will have to live with for better or worse.
The issue arises from a July district court decision in which a Helena law firm tried to subpoena a legislator over his bill that redrew the districts of the Public Service Commission to gerrymander them in favor of Republican candidates.
The Daily Montanan covered the issue in a long and complex article that brings into question the conflicting constitutional provisions of government transparency and a legislator’s immunity from being questioned about their speech or debates.
Although the Montana constitution’s right-to-know clause is very straightforward on the mandate for open government and the public’s access to state documents and meetings, the issue here is what went on during the formulation of the bill draft, the communications between the legislator, interested parties, and the Legislative Services Division, which drafts the bills.
There is no defense of the on-going efforts by the Gianforte administration and the Republican-dominated legislature to exclude the public from it policy decisions. That’s a matter of record from chopping agency public review and comment periods down to two weeks to Gianforte claiming a non-existent “executive privilege” — and now to telling the public they can’t have access to communications involved in formulation of legislative bills. There’s simply no defense and no excuse for these actions. But the Republicans have the bit in their teeth and they’re running recklessly wild with their one-party control of government.
Nonetheless, the reality is that the language contained in bills can and does come from many, many sources. Interim legislative committees spend months haggling over what will or won’t be in a bill draft, while special interest groups and non-profit organizations do the same thing through their off-the-record meetings. Entire national organizations, such as the American Legislative Exchange Council, exist for the sole purpose of developing legislative language and disbursing it to legislators nationwide.
And of course corporations do the same thing as non-profits and/or public interest groups. They develop language for bills that benefit their goals — and then we get to live with the intended or unintended consequences if those bills become law.
As a prime example, utility deregulation in the late ’90s was developed by the now-defunct Montana Power Company and took Montanans from the lowest power costs in the region to the highest. Ironically, it was sold to the legislature and Gov. Marc Racicot on the premise that competition in the energy market would bring us lower prices.
It’s worth noting that disastrous decision, one of the worst and most costly in Montana’s history, was made when Republicans had one-party control of the legislature and the governor’s office — just like now. But what was most important to Montanans was not where the bill came from, but the language of the final law that brought terrible economic consequences to their families and businesses through vastly higher utility costs.
In the end, it’s the Montana Supreme Court’s primary responsibility to sort out the conflicting constitutional provisions of the public’s right to know and legislator immunity. But when it comes to the actual language of the bills, where it comes from makes no difference whatsoever — what counts is what winds up in the laws by which we all have to abide.