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Capitol Talk: Subpoena Standoff, COVID At The Capitol And 'Vaccine Passports'

'Capitol Talk' is MTPR's weekly legislative analysis program.
Montana Public Radio

COVID leads to the cancellation of floor sessions at the Legislature as the Republican leaders are in a subpoena standoff with the state Supreme Court. All this as a bill to ban abortion dies in the Senate, the governor tries to prohibit "vaccine passports" and a Montanan may become the next head of the Bureau of Land Management.

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

Sally Mauk Holly, floor sessions were canceled today because a lobbyist has tested positive for COVID. And it's not the first case of COVID at the legislature, but it is the first time floor sessions have been canceled.

Holly Michels Yeah, this is pretty interesting and raises a lot of questions about the scope as of now — like you said, we know a lobbyist has tested positive, but we don't know numbers about close contacts for that person or any other positive cases yet.

And like you said, this is not the first COVID case we've had this session. There's been six legislators who've tested positive for COVID so far that we know of. There's also been non-lawmakers like lobbyists, members of the public, reporters covering the session who've also tested positive — but none of that shut us down before.

Tracking non-legislator cases has been a frustration for those of us covering the session since the very start. Republican leadership on a COVID panel that was formed to respond to the virus in the Capitol made clear that they expect legislators who test positive to inform them, and that they've sent press releases about positive cases.

But for members of the public who aren't elected officials, we really don't have a way of accurately tracking those cases. We do get testing numbers and positives for staff who work in the building, and we get tested and contact-traced through the state health network and the legislative contact tracer. But otherwise we know we're not getting the complete picture there.

You know, we've also had Gov. Greg Gianforte who's had COVID — he actually returned to the Capitol on Wednesday after his isolation period ended. And he was even seen on Thursday in photos on social media at a bill signing with a Republican lawmaker and the lieutenant governor all sitting at a table, not wearing masks as they're close together.

I think it's going to be interesting. As the news of this broke, legislators were in session all day Thursday. There was even one Senate committee that was still meeting when this news came out — and at that same time, there was a reception in the rotunda to promote local wine where lawmakers and lobbyists were attending.

We have seen a lot more people in the Capitol in recent weeks, as legislators were vaccinated — some of them were eligible in earlier phases and then it opened to all adults on April 1st. So there's been a lot more people in the building lately. I think we'll see the scope of this become clear in coming days, but again, it will probably be hard to track just because involvement of private citizens.

Mauk It's going to be interesting to see how long the canceled floor sessions last if it goes beyond today.

Meanwhile, Holly, there is a standoff going on between the Republican leaders of the Legislature and the state Supreme Court that is unprecedented. With subpoenas flying back and forth, and the separation of powers and judicial impartiality all being called into question, it's an escalating situation and confusing — but it's also extremely consequential.

Michels It's a really complicated saga that's not getting any less complicated as time goes on — and a reporter, Seaborn Larson, has done a heck of a job tracking it.

This all stems from a lawsuit that was filed over this new law that gives the governor direct-appointment power in the case of judicial vacancies. We've talked about that before on the show.

As a part of that lawsuit, Republican Attorney General Austin Knudsen filed documents with the state Supreme Court — which is where this lawsuit was filed directly. And those documents showed the court's administrator had sent out a poll to judges in the state, gauging their opinion on this new law back when it was a bill.

You know, we see state agencies under the executive branch come in all the time and testify for or against bills. And we have judges from the judicial branch who do that too — Montana Judges Association, who this pole was sent out on behalf of, they also weigh in on bills that would affect the judiciary.

But these emails led Republican lawmakers to point out these judges could also be in a position of hearing cases about this bill or others that they may have been polled on. And that's raised questions about if judges are putting their opinion out there before they might have something in their courts.

That actually led Butte judge Kurt Krueger — who's appointed to fill the spot Chief Justice Mike McGrath left — he had also recused himself because he talked to the governor about his concerns about this bill. Actually, Kruger stepped aside because he, as it turns out, had responded to this email poll saying he was opposed to the bill, too.

And then we've also learned that court administrator Beth McLaughlin, who sent this poll, had deleted the results from her email.

So what happened is the Legislature subpoenaed the state Department of Administration — and they're kind of the backbone for IT, so they would capture these emails that had been deleted. The Legislature has this subpoena power, but it's use pretty rarely.

The Department of Administration turned over about 2,500 of McLaughlin's emails the same day they were subpoenaed, and they were working over the weekend to produce more. But then the Supreme Court actually quashed this legislative subpoena after McLaughlin filed and raised concerns about private information — you know, things that could have been emailed to her about youth court proceedings, stuff like that, could have been turned over.

So when things got pretty intense is on Monday, Republican lawmakers just flat out said they wouldn't comply with the court's order — which is a pretty huge deal when you've got one branch of government entirely rejecting another.

It also puts the administration department, which is under the executive branch and Gov. Gianforte, in the middle of all this because they have to decide if they're going to follow this court order or the legislative subpoena. And Gianforte's administration hasn't actually directly answered questions about which they'll comply with.

And then late this week, Republican lawmakers issued even more subpoenas, this time for all seven justices of the state Supreme Court and McLaughlin. What they're asking for from the judges is communications regarding legislation this session. For McLaughlin, they want her to come into the Capitol in person at 9 a.m. Monday to turn over her work equipment that she used to send out these polls.

It's not quite clear yet what all the COVID news we just talked about is going to mean for that, but this really gets into a lot of issues. It raises questions about what sort of precedent the Legislature ignoring order from the state Supreme Court means. What happens if they don't agree with the court in the future?

Democrats, who are in the minority, they're calling this a constitutional crisis, saying it's an attack on the judicial branch in a witch hunt. And it's not a new thing for the Republicans in Montana to be questioning the judiciary. There's a lot of legislation coming from Republicans this session that would actually change the judicial branch significantly — and [is]expected to meet a much different end with a Republican governor, not a Democrat who's vetoed bills in the past.

You've also got a lot of bills that opposition is saying they're going to challenge in the courts. One's limiting care for transgender minors or access to abortion. They're vowing lawsuits. And Republicans have made clear that part of this is they would like to see more friendly judges to be hearing those cases. So a lot of steps going on in just an unfolding saga that's going to continue through the end of the session.

Mauk It's hard to see at this point what the endgame of this is going to be, but we will continue to track it obviously.

Rob, several media outlets are reporting that President Biden will nominate Montanan Tracy Stone-Manning to be the new head of the Bureau of Land Management.

Stone-Manning worked for Gov. Bullock, both as chief of staff and head of the state Department of Environmental Quality, and she's also worked for Sen. Tester and for local and national environmental groups. Her appointment, Rob, would put a Montanan in a powerful public land management position.

Rob Saldin Yeah, right Sally. It's potentially really big for Montana. The BLM is one of the main agencies that oversees federal public land, most of which is in the West.

And, you know, immediately these things turn to whether she's going to get confirmed. And, you know, I did notice that Steve Daines released a statement through a spokesperson. You know, he doesn't sound very excited, but I think she's going to get confirmed.

She doesn't need Daines. In fact, she doesn't need any Republican support. All she needs is to not lose any Democrats, and I suspect that Tester is a key player here.

As you mentioned, she's a former staffer for Tester and she's been around Democratic politics for a lot of years. I just don't think this happens without Tester, and I don't think something like this makes it this far without Tester feeling pretty confident that she'll get confirmed — reassuring the White House and Deb Haaland, the new interior secretary, that they can hold the moderate Democrats like Manchin in cinema.

It's also got to be reassuring, I would think, to those kind of moderate senators that this is a Tester person in this post as opposed to, say, a Bernie person or something. Putting aside whatever backroom discussions may have led up to this, I just don't think Stone-Manning is going to be easy to tar as a fringe environmentalist, which is the kind of thing that would have to happen, I think, to bring down the nomination.

You know, her background includes all the things you mentioned and Clark Fork Coalition, Five Valleys Land Trust — I mean these are very far from radical organizations. You know, she's definitely on team Democrat but, of course, that's entirely normal for political appointees. The real key is that her professional background just doesn't easily translate into 'crazed environmentalist,' which is I think the thing you'd need to have happen to bring down a nomination like this. So I think her prospects look quite good to be heading up the BLM soon.

Mauk Holly, a bill that would have effectively banned abortion in Montana died in the Senate this week when it fell five votes short of the two-thirds majority necessary to get a constitutional amendment on the ballot. That was, I think, a surprise to a few people.

Michels Yeah, it definitely was. We've seen other abortion bills clear this session with Republican support and Democratic opposition.

This one was a personhood bill. It would have defined a person as starting at the moment of conception and given a fertilized egg the same rights as a person.

And because, like you said, this would have been an amendment to the state Constitution that voters would have weighed in on, it needed two-thirds of the Legislature support to pass. It got 66 votes in the House and there's 67 Republicans there — and that was just a matter of one Republican being absent that day. So full support from the GOP caucus in the House.

It would have needed 34 votes in the Senate, but there's 31 Republicans in that chamber. So even though they're majority, if all of them voted for the bill, it still wouldn't have been enough to get across the finish line.

There was an effort to try to flip some Democrats on the part of anti-abortion activists who thought they might be swayable because of their religious views. But in the end, this fell short in the Senate and it was actually a 29-21 vote. Two Republicans voted against the measure — that's Senators Brian Hoven of Great Falls and Jeffrey Welborn of Dillon.

Mauk Rob, also this week, Gov. Gianforte signed an executive order banning so-called "vaccine passports" — but the legality of his order is in question.

Saldin Yeah, Sally. You know, a couple of things stand out to me. One, Gianforte continues to send somewhat mixed messages on vaccines and the pandemic.

You know, as we talked about last week Sally, I think much of what he's said publicly has been pretty responsible with regard to taking COVID seriously. And in fact, I noticed he and his wife released a new video this week that was very much in keeping with that. And yet here he is issuing this executive order attempting to ban vaccine passports, which arguably pushes quite forcefully in the other direction.

And it's worth noting that this wasn't a law that the Legislature sent to his desk and forced him to make a difficult call on — this was an executive order so it was very much an affirmative choice on his part to dive into this vaccine passport business.

The other thing that stood out to me, and you suggest this Sally, is that I think at least part of the executive order could be on shaky legal foundations. Gianforte's order says that private businesses are prohibited from requiring proof of vaccination. Now state facilities are one thing, but extending it to the private sector is arguably quite different.

At the end of the day, I'm not sure how many businesses would actually require such proof, but it's not at all clear what the legal foundation for that part of the order is.

It also, for what it's worth at this point, strikes me as just kind of running counter to Republican laissez faire orthodoxy on regulations and, you know, how much government we should be inserting into the private sector.

Mauk There is a lot to track that's going on in Helena these days. We will continue to do that, and in the meantime Holly and Rob, have a good weekend and I'll talk to you next week.

Michels Thanks, Sally.

Saldin Thanks, Sally.

Corin Cates-Carney Hey there. This is Corin Cates-Carney, news director at MTPR, with a quick update before we go. Since this program was recorded, the Supreme Court has issued an order halting the Legislature's subpoena request for the justices and court administrator to turn over documents and appear Monday.

Republican lawmakers later called that a conflict of interest, and said they'll continue asserting their investigative authority. Chief Justice Mike McGrath has also written a letter to GOP lawmakers defending the judicial branch's role in polling and testifying on bills he says are limited to legislation that affects the judiciary functions. That's it. Thanks.

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 in during the legislative session on Fridays at 6:44 p.m., via podcast or listen online.

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