Close of 67th Legislature sees changes to election laws, taxes, guns and trapping
(HELENA) “The End” — not typically how news stories start, but the end came for the 67th Legislature, and by most accounts, it was one of the most memorable and consequential in the state’s history as a Republican supermajority swept into office, including capturing the governor’s chair.
Because of the overwhelming number of Republicans, free to pursue an across-the-board conservative agenda following 16 years of veto threat from a Democrat governor, leaders in the party saw the last election as a directive from the voters to reshape many facets of state government. From restricting abortion to election administration, from tax cuts to legalizing pot (and taxing it at 20%), lawmakers in the last few months set Montana on a radically new course.
In closing speeches and prepared remarks on the last day of the session, Republicans lauded their political victories and the policies they’d adopted, launching occasional barbs against Democrats and other opponents who warned that beginning the session in January amid the COVID-19 pandemic would be dangerous.
“We accomplished a lot in the last 80 days to position Montana to come back stronger than ever,” said House Speaker Wylie Galt, R-Martinsdale, in a press conference with legislative leadership and Gov. Greg Gianforte, who took office in January. “And despite the attacks from some, we did it safely.”
Six lawmakers professed to having COVID-19 during the session, in which some legislators resisted measures like mask mandates, though this total does not include staff, visitors or lobbyists who may also have contracted the virus.
Galt, echoing similar remarks made by the governor and Senate President Mark Blasdel, pointed to a number of accomplishments, among them bringing more power to the legislative branch.
That’s been one of the key themes of the session, especially as the Legislature’s fight with the judiciary has ratcheted up. Senate Majority Leader Cary Smith nodded to this effort in his at-times acidic speech in the latter minutes of the session, in which he railed against COVID-19 precautions and the impact that lockdowns had on businesses.
“When we came to the election, the people of Montana made it clear that they did not like the tyranny was taking place, both the tyranny that was taking place with the executive branch, the tyranny that was taking place with the local health officials, and the tyranny that was taking place … with the way the courts were overturning citizens’ initiatives, legislative initiatives, for things such as how elections are run,” Smith, R-Billings, who is in his last term, said, referencing the court’s halting of the 2018 Ballot Interference Protection Act, a legislative proposal passed by the voters restricting ballot gathering.
“This is absolutely the best session I’ve ever been in,” Smith, who began his legislative tenure in 2009, said. “We’ve gotten so many bills passed that we have struggled with a Democrat administration to get passed for these last seven sessions.”
In this piece, the Daily Montanan staff wraps up some of those bills, as well as some that didn’t make it; how the GOP-led Legislature reshaped the state — or, in their assessment restored the “Montana Way of Life,” — and what comes next, now that lawmakers have largely left Helena.
Transgender issues
Montana’s GOP lawmakers took part in a nationwide Republican-led effort to pass bills regulating transgender people. The legislation restricts what sports teams transgender athletes can play on, what medical care they can receive and how they can change their sex on their birth certificate.
The bills drew the ire of hundreds of Montana business owners, women college athletes and LGBTQ advocates, who said the legislation would cost the state millions in lost revenue by making Montana an undesirable place to visit and live.
Opponents raised specific economic concerns with House Bill 112, which would bar transgender women athletes from participating in women’s K-16 athletics. They worried that communities would lose out in millions of dollars brought in by college championship sporting events and warned about the possibility of losing up to $350 million if the bill is found to violate Title IX.
LGBTQ activists also took issue with Senate Bill 215, Montana’s Religious Freedom Restoration Act, a policy they said would be used to skirt anti-discrimination laws in the state. But proponents said it would protect Montanans’ ability to live in accordance with their religious beliefs.
The Montana Legislature didn’t adopt HB113 and HB427, which would have limited the type of gender-affirming medical care transgender people receive. While the governor signed RFRA, and SB280 — requiring court order and proof of a surgical procedure — the transgender sports bill is still waiting for Gianforte’s decision.
Rep. John Fuller, R-Whitefish, has sponsored some of this legislation, and he has maintained it is important to protect women.
Legalized marijuana
Among the top legislative priorities of the session — certainly one of the few that shows significant fingerprints from Democrats and progressive advocacy groups — was the implementation of adult-use marijuana, which became law of the land when voters passed Initiative 190 last year.
For some, I-190 was good enough. It was, after all, what the voters passed, and it set aside a significant chunk of revenues from the taxation of pot to conservation, wildlife and parks programs, as well as veterans and other government services.
But even supporters of I-190 acknowledged that appropriations are not supposed to be made through a ballot initiative, the subject of an ongoing legal challenge to the initiative’s constitutionality. Lawmakers guard their spending power “rather jealously,” as one Republican put it, and also feared some of the same pitfalls that the state’s medical marijuana program encountered. As such, they undertook a months-long process to draft comprehensive marijuana implementation legislation that also made significant changes to how the potentially tens of millions of dollars generated by a 20% tax on recreational marijuana would be distributed throughout the government.
House Bill 701 emerged as the winning vehicle among a series of competing pot proposals. The expansive bill allows for a horizontally integrated market, in which a business can sell a marijuana product without needing to control every aspect of its production; created a system for counties that did not support the initiative to be opted out of recreational pot by default, limited home grow, banned, with the exception of existing operations, outdoor grow and more. Retail sales will begin next January.
While early versions of the bill made significant departures from the revenue allocations in HB701, persistent lobbying by environmental groups and a tenuous deal with Senate Democrats helped cement consistent funding for a conservation easement program called Habitat Montana, among other environmental programs, in the bill. HB701 also funds a substance abuse prevention program championed by the governor, making it his favored marijuana bill, and leaves a sizable chunk in the general fund.
The bill went from the brink of death and back on more than one occasion, saved by an unlikely coalition or a bit of governor ex machina at the eleventh hour. Even on the last day of the session, the House passed another pot bill, HB640, that would have changed the allocation of revenues in HB701 and decimated the availability for chronic pain patients to receive medical marijuana cards, even as HB701 was awaiting the governor’s signature.
But the Senate killed the bill, with even some Republicans recognizing it as a last-minute hijack.
Judiciary
Republicans vowed to reshape the state’s judiciary, believing Montana’s courts were tilted toward the liberal side of politics, not reflecting the views and sensibilities of the state. The proposed changes, though not all successful, would have radically reshaped the courts, including electing partisan judges, “districting” the state’s Supreme Court, and abolishing the judicial nomination commission, in favor of having the governor directly appoint judges.
That gave rise to one lawsuit and rare legislative subpoenas requesting thousands of emails from the judiciary and a special select committee to investigate the judicial branch. The lawsuit, centered on Senate Bill 140, will likely play out for several months to determine whether the Legislature’s actions violate the state’s Constitution. Attorneys have vowed the challenge to the newly minted laws may just be the first of many suits.
Meanwhile, three “hold-over” judges faced different fates as Peter Ohman of Gallatin County was confirmed by the Montana Senate, while former legislator and Cascade County Judge Michele Reinhart Levine was rejected. Lewis and Clark County Judge Christopher Abbott was given a negative committee report for the Senate Judiciary, and his full confirmation vote on the floor stalled with a 25-25 tie. Then, after some last-minute compromise on the final day of the session, Democrats threw their support to a ballot issue in exchange for peeling several Republican votes for Abbott, allowing the Helena-native to squeak by for confirmation.
“The system was rigged in favor of the trial lawyers. It needed to be changed and it did,” Gianforte said.
Taxes
Gianforte and legislative leadership on Friday all mentioned the newfound “competitiveness” of the Montana economy relative to other states in the region. This is one way to describe an almost $120 million package of tax cuts that are all hitting the governor’s desk.
Namely, a conjoined income tax cut made up of SB159 and SB399, both products of Sen. Greg Hertz, R-Polson, will, during the coming years, bring the top income tax rate down from 6.9% to 6.75% to 6.5% in addition to collapsing tax brackets and scrapping tax credits beginning in 2024. The cuts represent trickle-down economics in their worst form, Democrats asserted, doing little for low-earners while putting thousands back into the pockets at those at the higher end of the salary scale. Republicans made no bones about the supply-side logic of the cuts, saying that the cuts will stimulate job growth.
Additional Gianforte-backed cuts include to the business equipment tax and certain capital gains taxes. Democrats, meanwhile, unsuccessfully sought to boost the earned-income tax credit in two different proposals, one that financed the increase with an additional tax and one that didn’t.
Conservative economics didn’t win out in every instance, however — Montana’s lengthy history of organized labor was on full display when labor unions and legislative allies successfully fought back a push earlier in the session to make Montana a right-to-work state, which they said would kneecap collective bargaining and hurt workers.
ARPA funding
The Legislature this year had in a sense to pass two budgets. Of course, there’s HB2, the primary spending plan, a $12.6 billion bill that contains funding for government programs and the stray policy change — for example, a provision in the budget this year to end year-round Medicaid continuous eligibility, which created fears that otherwise-eligible Medicaid enrollees might be kicked off due to bureaucratic “churn.” The budget also contained funding for the Legislature’s probe of the judiciary for the next two years, meaning that the investigation will continue through the interim.
In addition to HB2, lawmakers had to wrangle a nearly $3 billion chunk of government change in the form of federal COVID-19 aid funds from the American Rescue Plan Act, the first such package passed in the Biden administration. This was on top of some remaining funds from the CARES II act.
The Legislature had direct control over almost a billion dollars of that sum, and despite Gianforte’s derision of ARPA as a liberal wishlist, put the money to use. Among other priorities, they invested around a quarter of a billion dollars in broadband connectivity in an effort to shake the Montana’s reputation as one of the least connected states in the country, something that only became more apparent in an era of tele-health and virtual schooling.
Under House Bill 632, which implements ARPA dollars, lawmakers set up a series of panels to hear requests for ARPA dollars for broadband, infrastructure projects and all manner of other things, mostly related to remediation and mitigation of the COVID-19 pandemic. ARPA also extended increased federal matching rates for some benefit programs and boosted affordable housing funding, one of the state’s key issues, though one the Legislature didn’t often address full-on.
It’s still not entirely a closed-and-shut issue, as the feds still have to issue guidance on how to properly spend many of the ARPA funds, something that could theoretically necessitate lawmakers returning at some point during the interim. The same goes for a possibly forthcoming federal infrastructure package, which had some legislators whispering about the possibility of a special session.
Among the rules that the feds have handed down is one preventing the ARPA dollars from being used to finance tax or spending cuts — a restriction now the subject of an ongoing lawsuit that Montana has joined — leading to some creative work-arounds in a bill that for example provides a tax cut for fibre.
Voting rights
This session saw several so-called “zombie bills,” legislation that appeared dead but returned in a different form, either a bill by another number or an amendment to separate legislation.
Earlier in the session, the Senate indefinitely postponed House Bill 406, which would have limited ballot collection and created ballot registries. Proponents said they wanted to put safeguards around voting. Opponents said the bill would severely limit the ability of people in rural Montana, and especially on reservations, to vote.
Then, ballot collection limitations popped up again, this time in an amendment to Ulm Republican Rep. Wendy McKamey’s election security bill. The amendment, approved in both chambers, makes it illegal for people to be paid to collect or deliver ballots, and the bill sets a $100 penalty per ballot wrongfully collected.
McKamey said she hadn’t asked for the amendment. However, she said she supported protecting the ballot every step of the way, and it made sense to her that money isn’t involved when it comes to ballot collection.
“We want to keep it as clear and transparent and unimpeded and uninfluenced by monies as possible,” McKamey said on the House floor.
However, the limits the bill sets are similar to ones a district court judge deemed an unconstitutional infringement on people’s right to vote and on an organization’s right to freedom of speech. The lead plaintiff in that case was Western Native Voice, and political director Keaton Sunchild said the nonprofit voting advocacy organization believed the amendment was a do-over of the law the judge deemed unconstitutional in September.
Western Native Voice will find a legal path forward if the bill gets signed into law, Sunchild said: “In our opinion, (HB530) is virtually the same thing.”
The Montana Legislature also passed a couple of bills that limit political activity on public campuses. A Montana University System spokesperson said if the bills become law, the university system will analyze whether the restrictions step over the constitutional authority of the Montana Board of Regents to regulate campuses.
Coal and Colstrip
For years, Sen. Duane Ankney, R-Colstrip, has tried to help the people of his town who work at the coal fired electricity plants, and this year, Sen. Steve Fitzpatrick, R-Great Falls, picked up the charge.
Fitzpatrick, whose father worked for NorthWestern Energy, sponsored a bill that would have let the monopoly acquire more ownership of the Colstrip facility, but without standard regulatory oversight of an appropriate balance of cost between ratepayers and the utility.
The Senate passed the bill. But in public testimony before the House Energy, Technology and Federal Relations Committee, opponents argued the Senate Bill 379 wouldn’t save Colstrip or its plants at all, and it would create another financial mess for consumers similar to the result of deregulation.
Current and former members of the Montana Public Service Commission decried the bill, ones on both sides of the political aisle, and both fans and foes of a future with coal.
The committee tabled the bill 11-1. Chair Rep. Derek Skees, R-Kalispell, described himself as a fan of coal, but he was unequivocal in his assessment of the legislation: “This bill does not save Colstrip.”
Ankney tried to power up the effort again with an amendment to another bill. House Bill 695 made it onto the Senate agenda in the last week of the session, but the Senate didn’t take a vote on it.
Sen. Christopher Pope, D-Bozeman, said the conversations legislators had around energy were difficult at times, but he believes they are important. In the last week of the session, he presented a resolution to study the future of Montana’s electric grid capacity with an eye toward evaluating all different types of energy sources and avoiding the recent disaster in Texas.
The resolution passed, and if the bill becomes law, results will be presented to the 2023 Montana Legislature.
Hunting
Trappers looking to harvest wolves now have more time and means to do it. The Legislature approved bills allowing the use of neck snares on wolves, extending the wolf trapping season, and the reimbursement for costs involved in hunting and trapping wolves.
Wildlife advocates argued the bills are inhumane and said increased use of neck snares would result in unintentional killings of non-target animals like domesticated dogs. Additionally, they called the trapping reimbursement bill a “bounty bill” to kill wolves.
The bill’s sponsors and advocates said the legislation will help control wolf populations in the state and protect ungulates. All three bills were signed into law by Gianforte, who made headlines for his own wolf harvest during the session. The governor also signed into law House Bill 468, which would create a season for hounds hunting black bears.
Lawmakers sent a bill to Gianforte to allow more wolf harvesting per an individual license, baiting within 30-feet of a trap, the hunt of wolves on private lands outside of daylight hours with the use of artificial light or scope.
And wildlife advocates criticized the vague language of SB98 that allows people to kill grizzly bears threatening people or livestock. The bill has been sent to Gianforte.
Abortion
Anti-abortion legislators came into the session determined to pass policies restricting various aspects of abortion that Democratic governors have vetoed for more than a decade.
Three of their efforts were signed into law by Gov. Greg Gianforte on Monday. The newly passed laws ban abortions after 20 weeks of gestational age, require a woman to be offered the option to view an ultrasound before receiving an abortion, and require informed consent to receive a medical abortion.
The bills flew through both chambers in the face of arguments that they violated Montanan’s elevated right to privacy enshrined in the state constitution. Montana’s American Civil Liberties Union has vowed the policies will be challenged in court.
Abortion will continue to be a hot topic going into the 2022 elections. The Legislature passed a ballot initiative to allow voters to decide on the Born Alive Infant Protection Act, which would essentially ban all abortions.
Education
Guns on campus and millions of federal recovery dollars for schools were a couple of the big ticket items in education during the 2021 Montana Legislature.
Sen. Dan Salomon, R-Ronan, said it was inevitable that lawmakers took up Second Amendment legislation. Salomon chaired the Senate Education and Cultural Resources committee.
“We’re in Montana, and the opportunity to have a gun bill, it was going to pass,” Salomon said.
The Legislature passed a bill that opened the door to guns in nearly every corner of the state, including campuses of the Montana University System. Salomon said given the fact that a guns bill was a sure bet, it made sense to work with interested parties, such as the university system, to figure out how to design a bill that worked.
Rep. Seth Berglee, R-Joliet, sponsored the legislation, House Bill 102, a fiercely debated proposal opponents said is sure to cost campuses. On Feb. 18, Gov. Gianforte signed it into law.
Salomon said higher education officials didn’t balk at the final version of the bill, and they worked with the Legislature, so he believes the outcome is a win, although time will tell.
“It’s a good deal, I hope, for everybody,” Salomon said.
The Montana Board of Regents will take up implementation at its May meeting. The bill also stripped the authority of the Regents to regulate campuses, which a legal review from legislative lawyers said may be unconstitutional, but the Regents have not publicly discussed mounting a challenge in court.
Salomon said one of the high points of the 2021 legislative session is that lawmakers fully funded K-12 public education. He also praised a bill, sponsored by Rep. David Bedey, R-Hamilton, that ensures special education automatically gets inflationary funding.
The senator said he hopes public higher education fared well too, but college campuses faced challenges in the pandemic.
“They had a tough go with not having people on campus and how their enrollment is going to be,” he said.
The Montana University System received federal recovery dollars directly, but the Legislature hammered out a plan for distributing coronavirus money to K-12. Salomon said the work was a significant undertaking of the 2021 session, and the Legislature dealt with an estimated $552 million in all.
Money is allocated for a variety of purposes over the next several years, including recovering from “learning loss” in the pandemic; modernizing the database of the Office of Public Instruction; and funding after school programs, among other expenses.
“School choice” legislation made its way through the chambers as well, but the bills didn’t all pass. A couple of “school choice” bills that public school representatives fought against didn’t make it into law. One failed measure would have created separate private charter schools funded with public money, but without standard oversight of public schools, and another would have offered public support for special needs students.
One, to increase the individual cap on a dollar-for-dollar tax credit from $150 to $200,000 for private scholarships and innovative public programs, was approved. Salomon said the bill fits within the state budget, and he believes it will be a positive for children.
“It’s really a golden opportunity for students and people to be able to help out both public and private (school students),” Salomon said.
With a push from the governor and Sen. Llew Jones, R-Conrad, lagging starting teacher pay in Montana is set to increase.
Guns
One of the session’s first key bills was HB102, legislation quickly shepherded to the governor’s office that significantly expanded permitless concealed carry in Montana, an immediate source of consternation in the higher-ed community, which didn’t have the same exception in the bill as K-12 schools.
After the bill’s signature in February, Republicans continued a march of pro-gun bills, including one largely symbolic policy that Gianforte signed exempting the state from a federal gun ban, were such a policy to come to pass.
Medicaid/Medicare
Though some had worried that the supermajority of Republicans elected in the blue wave of 2020 would dismantle insurance and safety net programs in Montana, which help more than 100,000 Treasure State residents, most social safety net programs remained intact, if not slightly better, with one noticeable difference.
That difference was a policy change that eliminates some “continuous eligibility.” Montana was only one of two states in the country that employed the policy, and it keeps people who qualify for one of several programs on it for an entire year without re-checking eligibility. Conservatives have argued against it as a way to reduce fraud and waste, while supporters of the policy say it helps prevent “churn” of people who fall off and then come back on.
Vaccines
Much of the session focused on the aftermath of COVID, and along with that the rollout of several vaccines, including Pfizer, Moderna and Johnson & Johnson. Almost immediately, Gianforte rolled back some of the mandates, including a masking requirement, of former Gov. Steve Bullock.
Gianforte also signed an executive order which would ban vaccine passports in Montana.
However, the debate on vaccines widened from COVID-19 to vaccines in general, as lawmakers pushed two bills that would affect vaccination status. First, lawmakers passed the Religious Freedom and Restoration Act which prohibited the government from interference in any sincerely held religious belief. Secondly, House Bill 702 banned most employers and businesses from requiring or even asking for proof of any vaccination, not just COVID.
“Anti-vaxxers” cheered on the legislation as a win for personal freedom, but a large coalition of healthcare leaders from across the state decried the bill and implored the governor to modify it because of the potentially deadly and devastating effect it could have on hospitals, nursing homes and assisted-living facilities.
Gianforte and the Legislature put some changes in place, and while nursing homes and assisted-living facilities can now require vaccines (if the federal government says they must), hospitals can only inquire about vaccine status, they cannot require employees to comply, leaving most hospitals concerned about patient safety and an onslaught of lawsuits.
Redistricting
Late in the session, Montana learned that it would be the beneficiary of a second seat in the U.S. House of Representatives, something it had lost in the 1990s. Montana became the only state to ever lose a second seat and then gain it back.
This set in motion a decennial redistricting process in which a line will be drawn in Montana taking the one district at-large currently held by Rep. Matthew Rosendale and splitting it in two.
No sooner had the U.S. Census Bureau reported the additional seat than Republicans in the Legislature started fretting about how the lines would be drawn, and were riled up when an anonymous legislative map appeared in the hallway of the Capitol. That mystery map, which appeared to be drawn to favor Democrats, worried lawmakers, even though its origins were unknown, and they rushed to pass legislation that would seem to order the redistricting panel of five, that has two Democrats, two Republicans and one person appointed by the State Supreme Court.
By law, the lawmakers don’t have much final authority in how the map is drawn.
Already the new district is creating interest as former Secretary of the Interior Ryan Zinke has said he will run for a seat in Congress.
Darrell Ehrlick, Keith Schubert, Keila Szpaller and Arren Kimbel-Sannit contributed to this story.