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The downsides of a citizen legislature; Tax bill drama; Abortion bill is likely headed to court

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.

A lawmaker's resignation illuminates the downside of Montana’s part-time legislature. The governor’s tax relief proposals face some bipartisan opposition. And another effort to make abortion illegal is likely headed to the courts.

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.

Sally Mauk Holly, one of the youngest members of the Legislature, Mallerie Stromswold, a Billings Republican, resigned her seat this week, and she cited several reasons, most importantly, her mental health. But she also says backlash in her caucus when she didn't vote with the majority was another factor in her decision to quit.

Holly Michels Yeah, you know, this isn't the only resignation we've had this session, but for those reasons you just laid out, Sally, it's a lot different than ones that we've seen before. Representative Stromswold, representing Central Billings, and she resigned and was really not unclear at all about the reasons for it. She talked about the retribution she faced last session and that retribution that continued into this one for not falling in line with her House GOP caucus over some votes that happened last session. That included when she parted from the caucus on bills that would have limited the rights of transgender Montanans. And she also supported a bill from a Democrat that would have allowed children to access some social services without parental permission.

Stromswold said last session that conflict was a lot more out in the open, people saying things to her directly. This session, it had shifted to being much more alienating and isolating. We did ask Speaker of the House Matt Regier about her departure and he said he wasn't looped in to her concerns, but he did acknowledge that there can be conflict within the caucus.

Stromswold told me that when she first ran for the Legislature, she did so because she was impressed that her time when she was a page here, she saw people voting on continuing Medicaid expansion in Montana, and she saw more moderate Republicans were able to vote away from their full party and still get re-elected. And I think that hits at a really critical part of her resignation, and this ties into her mental health concerns that she brought up, is that the legislators who were able to do that in the past, they're a lot different than Stromswold, in some key ways. And that's that they're older and more often men and she's a young woman. And she was pretty straightforward about that in her resignation, talking about how hard it is to be a woman in the Legislature, especially someone who's younger, also someone who doesn't have personal wealth. You know, she's paying rent in two places, trying to do school during the session. That's just not an easy task for someone who doesn't have a job that lets you be gone for four months or isn't retired with retirement income. And Stromswold laid it out very clearly, just how hard it is to be a young woman in a place that is not designed for that.

A young Republican lawmaker has resigned two weeks into the 2023 Montana legislative session, citing logistical challenges and “significant backlash” for sometimes voting independently of her party.

Sally Mauk Rob, Stromswold's point about the economic hardship of serving in the Legislature if you aren't an older white male is well taken. But As long as Montana has a part time Legislature that only meets every other year, I don't see that circumstance changing.

Rob Saldin Well, neither do I Sally. There's a cultural barrier here, and a constitutional barrier too. The cultural barrier is just the small 'L' libertarian sentiment that government is bad and we want as little of it as possible. And so, a Legislature that's rarely in session, well, that must be a good thing.

I'm reminded here of that old adage that, while the Montana Legislature meets for 90 days every two years, most Montanans would prefer it meet for two days every 90 years. Right? But even more daunting is that, even if people wanted to change the way the system works, our state Constitution mandates. And there's no way of getting around that short of a constitutional amendment, and that's a high bar and would ultimately require the voters to approve it. So, for better or worse, yeah, I think we're stuck with the system that we got and there are consequences to that. Right?

On the upside, of course, taxpayers have a smaller bill, but there are, what most political scientists, at least, consider to be negative consequences. For one thing, Holly, as you illustrated, a part time Legislature, you know, especially one like ours, where they aren't paid all that much, puts big constraints on the type of person who's realistically able to consider serving. If you've got a job, it's tough. If you've got debt to pay off, it's tough, if you've got kids at home, it's tough. There is another way of doing it. Some states have a professional Legislature that makes it much easier, financially, for people to serve. And that's actually not just the big states like California. You know, Alaska has that, too.

But another consequence of our system is that it really privileges the executive branch over the legislative branch. And that's because the governor and the agencies are there in Helena all the time, while the legislators just swoop in for short stints every other year. Right? There actually are some interim committees that do meet year round. So, it's not a total black hole when the Legislature is out of session. But still, there's a real imbalance there.

And then finally, I'd say, there are policy implications too. Many of the issues that the Legislature grapples with are just complicated. You know, you don't become an expert on, say, Medicaid, in a few weeks, or on the budget and so on. Mastering those kinds of things takes years. And then we've got term limits on top of that. So, there are a lot of aspects to it and the composition of the people who are able to serve just being one of them.

Sally Mauk Holly, Governor Gianforte has several proposals before the Legislature aimed at giving Montanans more tax relief, both with income and property taxes. The state's healthy budget surplus makes these proposals more likely to pass in some form, but there is some opposition as well.

Holly Michels Yeah, so we have that $2.4 billion surplus and there's sort of two ways to divide it. You know, there's the ongoing things that they want to do from the governor's office, that's one-time only stuff. His property tax rebate is one we saw some drama around this week. And then there's ongoing efforts like we saw last session, where he wants to lower the rate paid by the top income tax bracket in Montana, which is those earning $19,000 or more.

You know, we did see some drama around the property tax rebate bill this week, that's House Bill 222. We had Gianforte's bill voted down in committee pretty unceremoniously on an undebatable motion, and that motion was actually brought by House Majority Leader, Sue Vinton. And I asked her about it after and she said the committee just wanted more time to deal with the bill, but they could have done that without voting it down, they just could have not taken it up that day.

We actually saw something, you know, I don't think we've seen from Gianforte, or at least I haven't seen before, where he held a press conference after that. And he called out by name the legislators specifically who voted down his bill, which included Republicans who are in the same party as him. And later that day, we saw a committee bring that bill back. And what they did is change it so that, instead of what he was offering, the governor, which was $2,000 in property tax rebates over the next two years, it's now $1,000. So that's moving through.

There's his other proposals, you know, the income tax one is in the Senate. There's a bill to raise the threshold on the business equipment tax, up to $1 million. There's also a child tax credit that we haven't seen come through for a hearing yet, that would give $1,200 for families earning up to $50,000 with kids under six. Those are all still in play. I think we can expect to see them end up in the House Appropriations Committee, at least the ones on the House side. And that's where I think they'll do a lot of the heavy lifting to take a lot of these conflicting proposals, because Democrats also have their own ideas. You know, they feel a lot of the Republican policies benefit the wealthy too much, the Democrat ones that might make it as far as House appropriations will get lumped in with the Republican ones. They'll go through and probably put some sort of package together so we don't have duplicative bills hitting the House floor sometime later this winter.

Sally Mauk Rob, tax relief has been a Republican mantra for as long as I can remember. And giving people money back always plays well with voters.

Rob Saldin Well, it sure does, Sally. It's also just a core principle for Republicans. I mean, they really believe tax cuts stimulate economic growth. Which is good for everyone, because if you let people keep more of their money, they'll spend it on goods and services. And that, in turn, creates more jobs. And to the extent you've got more people employed, you've got fewer people who are reliant on government programs to meet their basic needs. So, it's a virtuous circle. There is sometimes a one size fits all dynamic at work, at least in the rhetoric you hear around the issue. Right? It kind of doesn't matter what the circumstances are at any given time, a tax cut is always the answer. But in a situation like this, where we are right now with this large surplus, Republicans are on pretty solid ground in arguing that that some portion of that should go to tax relief. The tricky questions are how much and in what form?

A Republican lawmaker is seeking to add a caveat to the state’s constitutional right to privacy. The language would say that the right does not protect access to abortion.

Sally Mauk Holly, the Senate Judiciary Committee on a party line vote has passed Republican Representative Keith Regier's bill to say Montana's constitutional right to privacy does not apply to abortion. And here's what Regier said.

"A right to privacy should not apply to an abortion any more than a right to privacy applying to child abuse or abusing a spouse. Those acts include another person."

Sally Mauk And opponents included Robin Morrison of the League of Women Voters.

"Taking away the right of bodily autonomy, which includes the freedom to make our most personal, intimate health care choices, is one of the most egregious invasions."

Sally Mauk And Holly, abortion remains legal in Montana because of this right to privacy provision in our state Constitution and how the state Supreme Court has interpreted it.

Holly Michels Yeah, this is, for a very short bill, it's just a page, it's pretty complex to understand, you know, what this bill isn't. It's not a referendum asking voters to change the Constitution, which you just said is where that right to access an abortion comes from, from the right to privacy in that document. It's also not a bill that would change abortion access all on its own, but it is trying to get at that roadblock of that Supreme Court decision, which is something Republicans who want to limit abortion access in Montana have been seeking to do for some time.

Regier is targeting the Armstrong decision, and that's that 1999 Supreme Court decision that found that our right to privacy lets people access pre-viability abortions. And that's why, when we saw Roe v. Wade fall at the federal level last summer, because of the reversal through the U.S. Supreme Court's Dobbs decision, that's what opened the door for other states to ban abortion access. But because we have that Armstrong ruling here in Montana, it remained in place. What Regier is saying in the quote we heard from him, is that he feels that our state Supreme Court, when they decided Armstrong, didn't give proper consideration to the word individual that comes before privacy. He's arguing that a fetus is an individual that deserves that right.

But we heard from opponents like Morrison, they feel that the right to privacy was rightly decided by the court nearly a quarter of a century ago. We also heard from opponents that this bill is the Legislature overstepping its role. The Constitution gives the judiciary the ability to interpret questions about what laws or the state Constitution mean when there's legal challenges to them, and gives the Legislature the right to legislate to create those laws, but has the judiciary being the one, being the arbiter at the end. And they're saying, look, that's not your role as the Legislature, that's judiciary, and they've already made that decision here. So we don't think this law is constitutional. You hear a lot of opponents also say that they would expect litigation, which I think, both Governor Greg Gianforte and Republican Attorney General Austin Knudsen have asked the court to reconsider Armstrong. So, if there's litigation against this law that might eventually bring that challenge before the state Supreme Court.

Sally Mauk Rob, Representative Regier, and others who want abortion outlawed in Montana, are not deterred by warnings that their proposed laws won't be upheld by the courts, yet they plow ahead anyway. What are they going to gain besides big legal bills?

Rob Saldin Yeah, well, you know, if you're really serious about enacting this agenda, the appropriate channel for pursuing that is a constitutional amendment, not a piece of legislation that everyone knows is almost certainly going to get struck down. It's just not going to work that way, at least for the foreseeable future. But to your point, Sally, I mean, going through this charade is still a win-win for them. They get to pass legislation and wave that around in front of their voters. But, they also don't have to actually deal with the political consequences that would go along with actually seeing some of these policies implemented. Now, for some of the true believers, they'd be happy to live with whatever the consequences might be, but I suspect quite a few of them are perfectly content to have this stuff always be just a bit out of reach. And then the added bonus is that when the Court strikes this stuff down as unconstitutional, they get to rail about the Court, and the Constitution as being corrupt and thwarting the will of the good people and so forth. So, I'm very doubtful that this is a serious threat to the abortion status quo in Montana. But Regier, and others, still see this as very much worth doing.

Sally Mauk Reminder that Montana Public Radio will carry the governor's State of the state address this Wednesday evening at 7 p.m. rob and Holly, thank you. And we'll talk about that next week.

Rob Saldin Thanks Sally.

Holly Michels Thank you 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 in during the legislative session online Friday afternoons and on-air Saturdays at 9:44 a.m. Subscribewherever you get your podcasts.

Bills to reform Montana tax policy, support missing persons search efforts and overhaul Child Protective Services move through the Legislature as schisms between and within the parties are starting to form.

Retired in 2014 but still a presence at MTPR, Sally Mauk is a University of Kansas graduate and former wilderness ranger who has reported on everything from the Legislature to forest fires.
Lee Newspapers State News Bureau Chief Holly Michels appears on MTPR's political analysis programs 'Campaign Beat' and 'Capitol Talk'.
University of Montana Political Science Professor and Mansfield Center Fellow Rob Saldin appears on MTPR's political analysis programs 'Campaign Beat' and 'Capitol Talk'.
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