Viewpoint: Defending direct democracy
C.B. Pearson & Evan Barrett
Since 1906, Montana has been able to make laws two ways - through our elected representatives and through direct democracy (or the peoples’ vote – ballot issues). Initially, ballot issues were selectively used to make changes only in our statutes (regular laws). That included referrals by the Legislature to the people for a vote and changes in statute initiated by the people through petition signature.
But changes in our Constitution were not allowed to be initiated by the people – those had to come from the Legislature. However, when the people wrote and approved a new Constitution in 1972, it gave power to the people to initiate changes in the Constitution by petition signature as well – our renowned initiative process.
Now, the “People” of Montana are granted the power of enacting laws through a ballot issue under Articles III and V of the Montana Constitution. Montana’s legislature is granted its power to make laws under Article V of the Constitution. Those two powers are co-equal, but in the last few years the Legislature has not seen it that way, responding to lobbying and special interest pressure by passing laws that impair the People’s law-making powers.
Beginning in 2022 the Montana Chamber of Commerce and partner allies privately met to rewrite Montana’s direct democracy laws to impede and disrupt the power of direct democracy. This lobby wrote Senate Bill 93, lobbied for the legislation and successfully won its passage.
Montanans have long understood and experienced the power and ability of monied interests – i.e. the “Copper Collar” - to control Montana’s lawmaking process utilizing their paid lobbyists, their economic influence, their campaign contributions, political committees, and now “dark” money. In response, we Montanans established in our 1972 Constitution the direct democracy power of citizens to overcome undue influence and power consolidation. That citizen power has frustrated big money and special interests, so much so that they have continually tried to limit the People’s power by empowering the Legislature at the expense of the people.
Despite the best efforts of good government organizations, allies of the Constitution and others, Senate Bill 93, the poster child of such burdensome law, was passed by the Legislature. Citizen opponents consistently stated the obvious: SB 93 was clearly unconstitutional and interfered with the power of direct democracy. After the 2023 session, citizen opponents took legal action to protect the fundamental power given to voters, a power that the legislature should not have tried to take away.
Ten prominent Montanans – Republicans, Democrats, Independents and unaffiliated -- sued the legislature, the Governor and the Attorney General to overturn this SB 93 intrusion into the people’s power to make law. Four laws passed in the SB 93 legislation were stricken as unconstitutional by a Montana District Court in Ellingson v Montana. That district court decision, in favor of the People, was appealed and is now before the Montana Supreme Court.
The Montana Supreme Court chooses one important case each year to be heard at the Dennison Theater auditorium in Missoula where law students, university students and the public are invited to attend and observe. The peoples’ power to legislate directly are so important that fittingly the Supreme Court chose this litigation - Ellingson v Montana -to be the signature case this year to be heard before all seven justices assembled on the U of M campus on Friday April 10th starting at 9:30 AM.
Prior to that, the Montana Public Interest Research Group (MontPIRG), an amicus party in the lawsuit, will hold a panel discussion on Tuesday April 7th at the University Center with several plaintiffs discussing the significance of the litigation and why the litigation was necessary to defend the power of Montana citizens to propose laws by direct democracy without impediments from the legislature.
Keep tuned in.
C.B .Pearson, retired in Missoula, has long been a practitioner in direct democracy in Montana, both statutorily and Constitutionally; Evan Barrett, retired in Butte, is a long-time government and political practitioner who chronicles Montana history through film, his most recent series being “Last Best Constitution.” Both are plaintiffs in the court case Ellingson v Montana.