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Capitol Talk: Budget Puzzle, Lawsuits And The Limits Of Public Input

Capitol Talk is MTPR's weekly legislative news and analysis program. MTPR's Sally Mauk is joined by Lee Newspapers State Bureau Chief Holly Michels and UM Political Science Professor and Mansfield Center Fellow Rob Saldin.

The many moving parts of the state budget have pushed lawmakers to extend the session — but Montana's Legislature isn't the state's only busy branch.

Montana Attorney General Austin Knudsen has filed yet another lawsuit against the Biden Administration. At the same time, prominent Montanans are suing Gov. Greg Gianforte over his effort to directly appoint judges.

And, as a racist social media post by a Republican lawmaker resurfaces, Montanans are learning that overwhelming public opposition to legislation does not guarantee a bill's defeat.

Listen now on Capitol Talk with Sally Mauk, Holly Michels and Rob Saldin.

Sally Mauk Holly, the House Appropriations Committee this week approved a $12 billion budget, but that's only the first step of many to come before a final budget is approved.

And there are so many pieces of the puzzle yet to be fitted into that, like revenue from recreational marijuana and the federal COVID relief money. It's so in flux that they've actually extended the length of the session to deal with it all.

Holly Michels Yeah, what they've done is decided they're not going to come in on Saturdays — which is something they typically do later in the session — to be able to be here through about mid-May. And that's in part to give them time to have more ability to look at this federal coronavirus aid that's coming from the American Rescue Plan Act.

One of the really tricky pieces of that money is a lot of the rules that determine how it can be spent aren't actually written yet, so the more time the Legislature's here, they're hoping for more clarity.

But what this is doing is it's basically throwing a second budget creation process on top of the regular one that you talked about, a House bill to which the full House is set to debate soon (House Bill 2). They're trying to coordinate those two as much as possible to offset state spending with this federal money wherever they can.

But they're doing it halfway blindfolded without those rules and even with the extended schedule, they're still just about 35 legislative days left to do it all. And like you said, there are some pretty major pieces that are becoming a little more clear.

We got the first glimpse this week at a recreational cannabis bill (House Bill 249). There's a 20% proposed tax on that that would bring in what's estimated really conservatively to be about $52 million in revenue to the state. But at this point, it's a lot moving really quickly and not a ton of detail solidified.

Mauk There's also the moving target of the governor's proposed tax cuts, and the fact that the federal COVID relief money cannot be used to offset revenue loss to tax cuts. And the governor says he's not sure what that may mean:

"We're still trying to get clarity on this. This is one of the problems, that things are moving quickly in Washington and here in the state."

And one hopes, Holly, they get clarity soon.

Michels Yeah, the question did come up in a hearing at the start of this week and a legislative fiscal staffer actually said that they wanted an attorney to weigh in to get some clarity because it is such a confusing but pretty important issue.

We've talked about this before: Gianforte has a pretty big tax reduction plan. It includes a cut in the top income tax rate, cutting the number of businesses that pay the business equipment tax. There's also a trigger bill that could further cut taxes if a series of fiscal performance measures are met.

Some budget watchers say that the provision with this federal COVID aid, it just has to balance out with new revenues or a net positive. And they're pointing to revenue creators this session, notably recreational marijuana, to say that when you combine it all, we will come out ahead.

But there still isn't a lot of clarity, and one of Gianforte's bills — the income tax cut — actually was amended this week so that the tax cut's a little greater, and it would be, I think in the 2023 fiscal year, about a $84 million hit to the general fund. So a lot of lack of clarity as this is moving through, and hopefully some of these pieces will get more information on soon.

Mauk Rob, Attorney General Austin Knudsen is in the news again because of another lawsuit he's filed against the Biden Administration, and this time over President Biden's order to revoke the Keystone Pipeline construction permit.

And this follows a previous lawsuit that we've talked about before that Knudsen joined over the new administration's immigration policy. That's a lot of litigation for your first three months in office.

Rob Saldin Yeah, yeah it is, Sally. The gist of the lawsuit is that President Biden's move to kill the pipeline is unconstitutional because the president doesn't have the authority to regulate foreign and interstate commerce, only Congress does.

And that's basically the same rationale that was used to push back against President Trump when he green lighted the project two years ago. So we'll certainly have to keep an eye on this as it moves through the legal system.

But as you suggest, Sally, I mean, for Knudsen, this is another high-profile legal challenge. He's even getting a little national attention on this one, and that's certainly good for him in the sense that it raises his profile and once again, unmistakably places him on the correct side of this issue insofar as his base is concerned.

Apart from the legal arguments on this, it's probably worth noting that the core objection to the pipeline is that it could cause considerable environmental damage. There are also tribal treaties in play, but proponents — including, of course, Knudsen but also Gianforte and the congressional delegation — argue that the pipeline is important to Montana.

And indeed, I think it is easy to empathize with the economic challenges that are facing the areas in Eastern Montana that we're talking about here. Tax revenue is one part of the anticipated benefit, but it's the jobs created by the pipeline that always get top billing and it's certainly true that building the pipeline would create a lot of jobs.

But the thing that often goes unmentioned is that nearly all of those jobs would be temporary, and so you've got skeptics that are going to note that this is more of a Band-Aid plan because once that pipeline is built, those jobs are finished. And I suppose you could say that, well, temporary employment is better than no employment, but these kinds of one-off, short-term jobs aren't really a path toward the kind of sustainable career opportunities, the kind of economic vitality, that can lay a long-term foundation for thriving and healthy communities.

Mauk Speaking of lawsuits, Holly, there are several well-known figures suing Gov. Gianforte over a bill he signed into law this week which allows him to appoint judges without going through a judicial nominating commission (Senate Bill 140). And the plaintiffs argue the new law violates the 1972 constitution.

Michels Yeah. This is pretty interesting. In my time at least up here, this is the fastest I've ever seen a lawsuit filed in response to a bill becoming law: There's less than a 24-hour turnaround here.

What this bill does, as you said, it eliminates the Judicial Nominating Commission, gives Gianforte the power to appoint state district court and Supreme Court justices when there's a vacancy.

So we heard the arguments against the bill are what are coming up in this lawsuit, too. And as it made its way through the process, we heard it conflicts with the intent of those who created the state's 1972 constitution.

In that document, it says the governor has the authority to make appointments through a process determined by the Legislature. Before that document, the governor did have direct appointment power, but those opposed to the bill and who are bringing this lawsuit say that overhaul nearly 50 years ago was intended to give the governor this power, but out of a pool selected by someone else, not an unlimited number of people.

The system that we have now was created by the 1973 Legislature, and the plaintiffs include a long-time lawmaker who was part of that 1973 session. [They] also include someone who was a part of that constitutional convention.

Gianforte, his administration is arguing that this recently signed bill — now law — is constitutional and that the Legislature does have the power to decide whatever system they want to let the governor make appointments.

One thing this lawsuit is looking at is the word "nominee" is pretty critical. The Constitution says that the governor should pick a replacement from nominees, and so this bill was actually amended to require that people who want to be judges submit letters of recommendation in an attempt to meet that definition of the nominee.

Part of the timeline of this lawsuit is that there's actually three judicial appointments for judges who are in place and have been doing their roles for some time now in Lewis and Clark, Cascade, and Gallatin County that were selected by former Democratic Gov. Steve Bullock. Those three judges just were scheduled for their first confirmation hearings in Senate committees that will be held next week. And the if Senate doesn't confirm those nominations, which they have rejected several from the former governor, then Gianforte would have the power to appoint to those three judicial positions.

Mauk Rob, some recent actions by some elected officials have me wondering where the line is drawn for professional versus unprofessional behavior.

The Daily Montanan reported that at a stop in Butte recently, Congressman Matt Rosendale allegedly got into a shouting match with some union workers protesting his visit. And according to two of the protesters, he also flipped them off — though a spokesman for Rosendale strongly denies that.

And then also this week, a Facebook repost by Ronan Republican Rep. Joe Read surfaced, and here's what that repost says:

"If you can pretend Bruce Jenner is a woman and Kamala Harris is black and Biden is sane, you can pretend I'm wearing a mask."

You know, elected officials, Rob, represent not just their constituents, but the whole state to the world. I'm not sure this represents Montana very well.

Saldin Well, no, it doesn't Sally. At the very least, these incidents are aggressive, they're confrontational, they're often mean-spirited and it certainly is unprofessional. This stuff, of course, isn't isolated to Montana — as anyone who witnessed the last five years could attest — but we do seem to have more than our fair share.

I think it's also reasonable to note that this isn't a bipartisan affair. The marked increase that we're seeing in this sort of behavior, it's concentrated in the Republican Party. One striking thing to me about that is it's just so out of step with what used to be, at least, a pretty prominent pillar of the conservative movement. And that is the kind of disposition that many conservatives and Republicans thought that it was important to uphold.

And that disposition was characterized by a kind of dispassionate calmness and even-keeled reasonableness that placed great importance on one's professional comportment, on treating people with respect, civility, being honest, common decency — these kinds of things — and this conservative disposition understood itself at least as being very much in contrast with the left's tendency to be overly emotional and strident and angry.

Now of course, there were certainly plenty of Republican leaders who never embraced that understanding of what it was to be a conservative. The point is that it was out there in Republican circles as at least one prominent understanding of how you should conduct yourself. And you could see it here in Montana, you know, a generation ago in figures like Marc Racicot and Bob Brown and even more recently in someone like Tim Fox.

But there was also always a critique of that disposition that was especially prominent on conservative talk radio, among other places, and that critique held that it was that kind of disposition that was the reason why Republicans lost: It was weak. The Democrats and the left play dirty and we have to do the same.

And it's that kind of mentality, I think, that's become just far more prominent among elected Republicans in recent years and that is very much on full display in these recent incidents.

Mauk Lastly Holly, bills we've mentioned before that seek to limit LGBT rights drew way more opposing testimony than testimony in favor, and drew a large crowd to a pro-gay-rights rally. Democratic House Minority Leader Kim Abbott told the crowd their efforts make a difference:

"You guys have shown up week in and week out in hostile committee hearings to tell your stories, and the stories of your families and the stories of your communities. And I have to tell you that it makes a difference: It moves people."

But I'm not sure, Holly, those bills they oppose are not going to be signed into law.

Michels Yeah, it's an interesting dynamic. Opposition to bills doesn't necessarily sway votes by legislators.

Looking at these two bills at the Senate Judiciary Committee heard this week: On House Bill 112 — that's the bill that would not let transgender women plan women's sports teams — there's been nearly 2,000 email and phone call messages to lawmakers against it. Just about 600 for it. House Bill 427, which is the one that bans certain gender affirming surgeries — there's been about 460 calls or messages against and about 140 for it.

There is a limit, I think we're seeing this session, to people can reach out and have an impact. But these bills are advancing on party lines with Republican support, and some of the other ones that were also subject at this protest, the governor has indicated he'll sign, including the Religious Freedom Restoration Act (Senate Bill 215).

Mauk Rob and Holly, we're out of time. I'll talk to you next week. Have a great weekend.

Saldin Thanks Sally.

Michels Thanks Sally.

Capitol Talk is MTPR's weekly legislative news and analysis program. MTPR's Sally Mauk is joined by Lee Newspapers State Bureau Chief Holly Michels and UM Political Science Professor and Mansfield Center Fellow Rob Saldin. Tune during the legislative session Fridays at 6:44 p.m., via podcast, or listen online.

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