Abortion amendment fuels feud between the Legislature and courts; Who loves Trump the most?

By Sally Mauk,

Published April 6, 2024 at 5:58 AM MDT

A constitutional amendment to protect abortion moves closer to getting on the ballot. The Republican fight with the judiciary keeps escalating. And the winner of the Republican eastern district congressional primary may boil down to who loves the Trump the most.

Campaign Beat is MTPR's weekly political 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 on-air Saturdays at 9:45 a.m. Subscribe wherever you get your podcasts.

Sally Mauk: Rob, Governor Gianforte this week, fulfilling a promise he made to Governor Abbott of Texas, is sending some Montana National Guardsmen to Texas to help secure the border. Here's part of the governor's announcement.

Governor Greg Gianforte : 'To address the invasion at the southern border, Montana soldiers have volunteered to assist Governor Abbott and Operation Lone Star, conducting vehicle maintenance and repair.'

Sally Mauk: And Rob, then he went on Fox News to trash the Biden administration's border policy.

Rob Saldin: Yeah, that's right, Sally. One should say at the outset that there is a significant problem at the southern border. That's an entirely legitimate thing for Republicans to point out. And just on the politics of it, Republicans have been very effective at raising the salience of this issue. Now, one potential problem for them is that it does increasingly seem like they're more interested in leveraging it as a campaign issue and hanging it around Democrats' neck than they are in actually taking steps that might mitigate the problem.

But again, on the politics, it's effective because it dovetails with the centerpiece of their larger message this cycle. And that is that Biden and by extension, the Democratic Party, doesn't have control of the situation. Because Biden's too old and fragile and so forth. He's not in control of events. Events are having their way with him. Now, of course, Sally, we could debate the extent to which that's actually true, but the border issue plays very nicely into that larger narrative, and it's a narrative that's been picked up by basically the entire Republican Party.

We've noted in past weeks how prevalent that is. Even here in Montana, all the Republican candidates are talking about it. It's a prominent feature of their ads and so forth. And here we have Gianforte hitting on it again.

Now, in this particular episode, I do wonder if Gianforte is overplaying his hand a bit. There's a slightly farcical element to this, even. To start with, rather than just issuing a press release, they instead put out this earnest video that seems to try to be capturing something of the somber seriousness of an Oval Office address following a national crisis. The governor calls his order a 'disaster declaration' to address the invasion. And yet, Sally, the big reveal is that he's sending down a handful of volunteers to repair some trucks. Given the wind up here, that seems a bit underwhelming. But on these things, perhaps the details don't matter so much, and maybe Gianforte is still getting what he wants out of this announcement.

Sally Mauk: Holly, the Montana Supreme Court is in a doozy of a fight with Republican Secretary of State Christie Jacobson over releasing a proposed constitutional amendment to protect abortion so supporters can start gathering signatures to get it on the ballot. We've been talking about this saga for weeks now. What's the latest twist?

Holly Michels: Sally, this measure's faced a legal roller coaster and delays over the last few months. What happened Friday is Secretary of State Christie Jacobsen, a Republican, followed a court order and ended up sending this petition form to the ballot initiative's backers. And that's cleared the way for them to move toward the process of gathering the signatures they need to qualify the measure for this fall's ballot. The group has said that they're in the process of reviewing those materials, and that they're going to hopefully start collecting signatures soon.

The court ordered Jacobson to do that after a series of legal holdups for the measure. Normally, too, we would have a legislative committee also weigh in here. That committee would take a vote that can't actually stop the measure from advancing, but their vote would appear on petition forms so that people who would be signing those forms can see how legislators feel about the measure. But the Montana Supreme Court said that because of the procedural issue here, that process has not been triggered. That's frustrated Republican legislative leadership who said that this is the court cutting them out of that process. So they subpoenaed Jacobsen for the ballot materials. Jacobsen turned those over to legislators on Friday, who then set a meeting for April 18th to discuss and vote on the measure.

Minority Democrats in the Legislature said they don't think that vote's necessary because of the court's order. It's also not clear if that vote would show up on petition forms, since those are now approved for signature gathering. But there's also a line on those forms noting the court's actions here in the absence of a legislative vote.

Montanans Securing Reproductive Rights, which is the group backing this ballot measure, has until June to gather the roughly 60,000 signatures. They need to qualify the measure for the ballot. So, they're hoping to get started collecting signatures as soon as possible.

Sally Mauk: Holly, this is just one example of the growing animosity between the court and Republican leaders. And now Senate President Ellsworth has once again formed a select committee to address what he calls 'judicial overreach', but Democrats say it's a sham and they're not going to participate.

Holly Michels: Yeah. This move by the state Senate president, Jason Ellsworth, comes after the state Supreme Court struck down four laws related to voting that were passed by Republicans who held a majority in the Legislature during the 2021 session. And it also builds on frustration Republicans in Montana have had with the courts — from district courts all the way up to the state Supreme Court. They've seen those courts strike down legislation that they passed over the last two legislative session since the state got a Republican in the Governor's office.

After this most recent court ruling, we heard Ellsworth, who's also a candidate in the race for Clerk of the state Supreme Court, say he would form this committee to look into what he's calling judicial overreach. In a statement, he said Montana courts are out of control. He says they're seizing power that doesn't belong to them, and that they're undermining a constitutional system of checks and balances.

Republicans are also pointing to a dissenting opinion in that voting law case from Supreme Court Justice Dirk Sandefur, who said that courts should not act as what he called a super legislature that second guesses lawmakers.

So for this committee that Ellsworth has formed, a preliminary document that's circulating outlines some possible things it might consider. That includes looking at legislation to rein in the court's power, restore co-equal power among the branches of government, draft bills to provide oversight of the judiciary, and more. And this planning document also included a line indicating lawmakers may look at reducing the judicial branch's budget.

Like you said, Sally, Democrats have said that they will not participate in this committee. They're calling it a power grab and saying it's the result of a temper tantrum, and they feel it's an attempt by the Legislature to take over a co-equal branch of government. This is another step in an ongoing fight, and we'll be watching to see what comes out of this committee when they have their first meeting.

Sally Mauk: Rob, this Republican committee on the Judiciary follows the Trump playbook of casting doubt on institutions that don't rule the way you want.

Rob Saldin: Yeah, it sure does, Sally. And you know, the thing this always makes me think of is the fact that American democracy isn't a set-it-and-forget-it operation. It relies on institutions and our trust in them to function properly. And, you know, not to get too abstract and political science-y here, Sally, but the Founders, drawing on philosophical traditions and the lessons of history, they recognized that democracies had certain inherent weaknesses that they had to be attentive to in their effort to stand up a democratic republic. Chief among those weaknesses that had ruined previous democracies were the problems of mob rule and demagogues. They knew that they needed some mechanisms to guard against and stave off those problems and Madison and the others put a lot of the burden on institutions. They thought that we need mediating institutions, like, for instance, the Judiciary that provides structure for democracy, that would provide guardrails for channeling it in a healthy direction and keep it from going off the rails. So I think there are some old reasons to be concerned about the state of our institutions and attacks upon them.

Sally Mauk: Holly, Republican State School Superintendent Elsie Arntzen, who's running for the Eastern District congressional seat, has a new ad out attacking one of her leading Republican opponents, Troy Downing. And here's that ad:

Ad Announcer : 'Liar'. 'Idiot'. 'Not electable'. That's what Troy Downing had to say about President Trump. This is the same Troy Downing that had this to say about deporting illegal immigrants: 'It's just not feasible to get rid of ‘em.' Troy Downing — wrong on Trump. Wrong on immigration. Wrong for Montana.

Sally Mauk: But of course, Holly, Downing is now a Trump supporter.

Holly Michels: Yeah, I think we're going to see a lot more ads like this in this race. This is the start of the work that candidates in this really crowded Republican primary for the eastern House district need to do to differentiate themselves from each other. And that's what Arntzen's doing here with Downing.

People might remember reporting back in the 2018 U.S. Senate race, when Downing was then part of an also crowded Republican primary, these tweets were first uncovered. Clearly, Trump is very popular in Montana, both then and now, so Arntzen is hoping to do some damage here by highlighting this even though, like you said, Sally, Downing has clarified he is a Trump supporter.

The power of being aligned with Trump is just going to be one way that these nine candidates in the Republican primary are going to try to make themselves stand out, and every little bit of support they can get matters in this race where you would need just over 11% of the vote to get out of that primary.

In other ads Arntzen's running right now, she's really hammering the point of saying she's a pro-Trump Republican. We're seeing that pretty prominently in text in all those ads. It is important to point out that Trump hasn't endorsed anyone for this seat, which is in a really heavily Republican district. But this is pretty common territory we've seen in a lot of Republican primaries in Montana and elsewhere — candidates trying to paint each other as RINOs or 'Republicans in Name Only'.

And Arntzen's also in some of her campaign ads telling primary voters that she's the most conservative candidate in this race and most similar to Matt Rosendale, the congressman who's vacating the seat, who is also part of the far-right Freedom Caucus in the House.

And on that line about immigrants, that appears to be from video a tracker who's followed Downing around, got of him speaking somewhere, but there's not a lot of context around when or where he said it. With the southern border, like you and Rob were talking about earlier, something that Republicans are really hitting hard this campaign, and Arntzen is one of those. On social media she's repeatedly calling the situation at the southern border an invasion, highlighting a trip that she took down there and saying that she really is aligned with Trump on the southern border as well.

Downing, for his part, is also running ads calling for finishing the border wall, but Arntzen's really focusing on this as one of her main issues and hoping it will gain her some traction.

Sally Mauk: Well, Rob, as Holly just mentioned, the depth of one's loyalty to Donald Trump is going to be one of the key factors in that crowded Eastern District Republican primary.

Rob Saldin: Yeah, for sure. Sally. We were talking about the importance of institutions just a minute ago, and I would note that political parties are another of those. They weren't part of the Founders' original design of our political system, but they emerged on the scene quickly and despite what often is kind of their bad rap, parties have historically played a similar role to the institutions embedded in the Constitution in terms of channeling democracy in a healthy direction. Traditionally, parties have restrained their own candidates by essentially forcing them to sign on to the party's long-established set of principles and policy positions, and so forth. It hasn't always worked perfectly, of course, but by and large, our political parties have served that function of channeling American democracy away from the pathologies that can undermine it.

Yet, in the age of Trump, many democracy experts will tell you that that has broken down in the Republican Party. The key thing in the GOP now, clearly, isn't that you're a loyal caretaker of a set of principles that define the party, or to the party platform, or to the defense of the Constitution or what have you. The key thing is that you're subservient to a particular individual and his whims at any given moment. So, in a practical sense, in terms of how the party functions, some have noted that it's closer to a cult, in their view, than a traditional political party. So right, Troy Downing said some mean things about Trump in 2016, and that's a problem for him.

Sally Mauk: Hard to believe, but there's only two months to go until the June primary. Holly and Rob, thank you.