Rule would ‘muzzle’ Montana Consumer Counsel, but Fitzpatrick said he’s changed his mind
(Daily Montanan) A Montana lawmaker who planned to restrict the ability of the state’s utility consumer advocate to testify to the legislature said Wednesday he plans to reverse course.
Sen. Steve Fitzpatrick, R-Great Falls, said he already has drafted an amendment to undo one he proposed earlier — and legislative committee adopted — to limit the authority of the Montana Consumer Counsel.
The Consumer Counsel is created by the Montana Constitution to advocate on behalf of consumers in utility regulation matters, such as energy rate increases requested by NorthWestern Energy.
The Consumer Counsel testifies on how proposed legislation will affect customers, but earlier this month, a legislative committee voted to restrict the agency’s ability to freely offer testimony to lawmakers.
Specifically, the Joint House and Senate Rules Committee voted to approve a rule that said the Consumer Counsel first needed permission from a separate legislative committee to testify as a proponent or opponent of a bill.
“In statute, the only entity that represents the public, the consumers — and the people who pay the freight — is the Consumer Counsel,” said Mary Ann Dunwell, a 2021 representative and incoming senator. “We cannot muzzle them.”
Dunwell, D-Helena, and Sen. Brad Molnar, R-Laurel, praised news that Majority Leader Fitzpatrick, R-Great Falls, planned to offer an amendment to undo the earlier rule change passed in committee.
Dunwell and Molnar both sit on the Legislative Consumer Committee.
However, both also said they fear fellow lawmakers will make other attempts to shift power away from the public and toward corporate interests — to the interests of monopoly utility NorthWestern Energy in particular.
Molnar, a former member of the Public Service Commission regulating NorthWestern, said the power company already has significant lobbying influence with the Energy and Telecommunications Committee.
He said his concern is if NorthWestern can’t get its way with the Public Service Commission — which receives analysis from the Consumer Counsel and from its own slate of economic and regulatory experts — it will get a free pass at the legislature.
He said many constituents are served by energy cooperatives and Montana Dakota Utilities, not by NorthWestern — so many legislators have little incentive to learn the issues or buck NorthWestern’s interests.
“They really need to realize the Energy Committee is not NorthWestern’s playground,” said Molnar, who admitted he can be considered a “Caucus of One.”
Regardless, implementing the rule would be cumbersome in real life, Dunwell said.
For example, she said the Consumer Committee meets just quarterly, and pulling its four members into quorum during the session every time an energy bill gets a hearing would be tricky.
She said her larger concern is the potential interference with the independence of the Consumer Counsel. Dunwell said she believes the rule would violate Montanans’ Constitutionally protected right to participate in government.
The Consumer Counsel is a small agency with just a handful of staff, but Dunwell said it’s a critical one.
“We rely on them so much to make sure our energy rates are fair, and we absolutely need to because we’ve got some laws in Montana that are just really anti-consumer and really pro-NorthWestern,” Dunwell said. “ … The only agency that stands up for consumers is the little-known Consumer Counsel.”
Wednesday, the Montana Consumer Counsel could not be reached for comment via voicemail. NorthWestern Energy also could not be reached for comment via email.
In the joint rules committee, all Republicans voted to support the rule, and all Democrats voted to oppose it.
Wednesday in a phone call, Fitzpatrick said he has already drafted an amendment to remove the rule because members of the Consumer Committee didn’t want the responsibility.
“And if they didn’t want to have it, I guess that’s a fair point, and I’m going to move to take it out,” Fitzpatrick said.
However, Fitzpatrick, who has sponsored significant legislation backed by NorthWestern in the past and has six bill draft requests for 2023 to “revise energy laws,” shared his earlier rationale.
He said the Consumer Counsel is “a branch of the legislature,” and allowing it to lobby the legislature is akin to having the legislature lobby itself.
“I think that at all levels, government has to be accountable to the voters,” Fitzpatrick said, whether it’s a legislative, executive or judicial branch agency.
At the joint rules committee, Todd Everts, director of Legal Services, said the Consumer Counsel is constitutionally created, and the role of the Legislative Consumer Committee is to hire its director, but not to direct its activities.
In explaining his reason for reversing course, Fitzpatrick said the argument that getting permission from the Consumer Committee would be difficult logistically resonated with him.
“Just from an administrative standpoint, as I thought about it, I’m not sure it’s the most feasible activity,” Fitzpatrick said.
He said the legislature will take up rules likely the first week of session, and he considers the issue dead: “It’s just going to revert back to the way it was, so I think it’s much ado about nothing.”
The 2023 Legislature starts Jan. 2, and Dunwell said she hopes Fitzpatrick gets the votes to undo the rule. However, there’s no guarantee other legislators will follow suit and oppose a rule change they earlier supported.
“It’s going to be a session that’s really challenging, and we’re going to have to continually advocate for the right of the public to be represented, to participate, to be included in decisions made about them,” Dunwell said.
She and Molnar also said the Consumer Committee membership needs to change this year. It is comprised of two Democrats and two Republicans — and two members of the House and two members of the Senate.
Dunwell is shifting from the House to the Senate, so a separate group — the Committee on Committees — must reassign one member, and Molnar said it can easily “stack that committee in favor of doing what Fitzpatrick has attempted thus far.”
“My concern at this point is that the Committee on Committees will … use that opportunity to put people in place that will accomplish quietly what couldn’t be done publicly with the cameras rolling,” Molnar said.