A Republican state senator is in trouble for making a deal that may not pass the smell test. The Montana press wins a court case against the Legislature over transparency. Some Montanans get frozen out of the Trump inauguration ceremony. And Montanans imprisoned for attacking the Capitol on January 6th are freed by the new Administration.
Capitol Talk is MTPR's weekly legislative news and analysis program. MTPR's Sally Mauk is joined by Montana Free Press State Editor Holly Michels and Lee Banville, Director of the University of Montana School of Journalism and Professor of Political Reporting.
Sally Mauk: Holly, a Republican senator from Hamilton, Jason Ellsworth, who was also former president of the Senate, is in big trouble because of a legislative contract he awarded a former business associate. And the details of this, Holly, are, to say the least, suspicious.
Holly Michels: Yeah, Sally. So at the end of last year, just before his term as Senate President expired, before the start of this legislative session, State Senator Jason Ellsworth, who's a Hamilton Republican, approved a $170,000 contract with a former business associate. This was revealed in reporting from the Montana State News Bureau.
This contract wasn't issued through a competitive bidding process and the State Department of Administration signed off on it under emergency contract rules that kept it from being publicized, like a contract that goes out for bid normally would be. The DOA said they were acting under those rules because the funding tied to this contract was set to terminate at the end of the committee's work that it was tied to, which was also at the end of last year.
What this contract is for is tracking bills created by this select Senate committee that Ellsworth formed to address what Republicans say are problems with the judiciary. The tracking would be whatever bills become law this session, sort of seeing how they're implemented, what effect they would have. And Ellsworth has argued that legislative staff would not be able to do that work, even though some fellow Republicans on that committee said that's what the staff is there for and that this outside contractor is unnecessary.
Ellsworth is also arguing that while he didn't solicit formal bids like you normally do in a state contract bidding process, he did get a quote for a more expensive price for the work. So, he's trying to say he got a deal for the state here. Also, at one point, Ellsworth tried to make this contract, actually two different contracts, so they would fall under the dollar amount threshold that would make them public. So there's really no way for the public to be aware of this until a report came in through the legislative auditor's fraud hotline. And then the press through the Montana State News Bureau's reporting found out about it. But those complaints are anonymous, so we don't know who actually made the complaint.
Sally Mauk: Here's what Ellsworth had to say about what he did.
Jason Ellsworth: "So, I regret that it's turned political. Do I regret the decision? No, because I found the cheapest price and somebody, I could trust to do the work."
Sally Mauk: And he's standing by what he did, Holly.
Holly Michels: He is. Like I said before, he's defending it in various ways. But it has, like he said there, this is definitely become part of the politics of the session. Back in November, Ellsworth lost his bid to be state Senate president again. So when the first bill for this work done under this contract came in, it actually landed with the new Senate president. Matt Regier. Regier and Ellsworth have been at odds this session. That's because on the first day, Ellsworth joined with a small group of fellow Republicans and then all the Senate Democrats to show a bit of a power flex against Regier. That's led to some turmoil and delays in the Senate actually getting their work started for this session. Regier has called this contract illegal and has said that there will be an investigation into the issue. Ellsworth earlier this week said that the holder of the contract has asked now for it to be canceled. But now we're waiting to see what sort of action the Senate may or may not take, what any sort of investigation into Ellsworth might reveal and then, of course, how this all plays out in the dynamics of the Senate this session.
Sally Mauk: Well, speaking of those dynamics, Lee, the Democratic response to all this has been fairly tepid.
Lee Banville: Yeah, that's almost an insult to tepid. It's been very quiet because the harshest voices, you know, for example, former Republican legislative leader, Jeff Essmann, has called for expulsion. Democrats have been much more muted and there might be multiple reasons for it. But I think clearly, probably one of the things that factor into their thinking is what Holly was just talking about, which is the senator has emerged as the sort of critical voice to connect with Democrats, to give them a little bit more say or more power in the Senate. And so potentially losing him or him coming out of this politically deeply damaged could make it harder for them to kind of build that coalition they need to do anything in the Senate this session.
Sally Mauk: So, some politics involved.
Lee Banville: Maybe!
[Editor's note: After this podcast was recorded, the legislative auditor released a report concluding Sen. Ellsworth in fact abused his position in awarding the controversial contract referenced above.]
Sally Mauk: Well, hats off to Victoria Eavis and Seaborn Larson of Lee Newspapers, who first broke this story. And I think it's a prime example of the importance of the watchdog role of a free press. And speaking of that, Holly, a district court judge has sided with the Montana press in a lawsuit over whether behind the scenes information about bills as they're being drafted should be public. And these are the so-called 'junque files'.
Holly Michels: Yep, junque files spelled J-U-N-Q-U-E, of all things. Those are, again, public, although the Legislature is appealing that ruling. So, we'll see where things play out there. But what this all stems from is last year a different judge in an entirely separate case in Helena issued an order that the Legislature's attorney interpreted to mean that these records were no longer public. And after that, lawmakers were given the option to opt in to still making those records public. And roughly a third did, according to reporting from Montana Public Radio. But the rest didn't. And those records are really valuable, Sally, that you're talking about, the work of the press up here. We access them a lot. Lobbyists use them. Fellow lawmakers also do to see who's involved in the drafting of a bill. If there's different companies or organizations that are submitting suggested language for the bill or trying to suggest ways that should be drafted in certain ways. It's just helpful information for us to have. So after those files became not public, like you said, a group of media outlets that includes Montana Free Press, where I work, and Montana Broadcasters Association, which includes Montana Public Radio and others, sued to gain access to those files, which had been public for about three decades under a separate court order from back then. And the Great Falls judge agreed that those records should be public while the lawsuit plays out, saying he thinks that media outlets and others who sued are likely to succeed in their overall case. He said that the state constitution's provisions for public access to these records is the reason for his order. And after this order, several people requested those files, but they've not received them. And now, like I said, with the Legislature appealing the ruling, I don't know if we'll get access to them right now. So, by no means is this the end of the road for this case.
Sally Mauk: Well, the Montana Environmental Information Center was also a plaintiff in this case. And here's what MEIC's Policy Director Anne Hedges had to say about it:
Anne Hedges: "The public needs access to its government, and without public access to government, decisions get made behind closed doors. We didn't want that to occur then, we don't want it to occur now. "
Sally Mauk: Lee, transparency is crucial for the press and therefore the public to understand what's going on with policies being drafted by their legislators.
Lee Banville: Yeah, and it's always important to remember that the Montana State Constitution has an explicit right to know. When we talk about this at the federal level, it's always a mishmash of laws and interpretations of rights. But this one, it's written there, black and white, that the public has a right not only to know what's going on in its government, but to be able to access the process, not just the outcome. And so this decision is a critical one to kind of giving some insight into the early processes of legislative writing and drafting. And so, what will be notable is, will the Legislature start generating those files quickly because it's happening right now. And yes, the court case is still winding its way through the courts, but the judge's decision really says that these files should be made public right now because legislation is being written right now. And so, we'll have to see in the next week or so whether they actually start to generate those junque files.
Sally Mauk: Well, meanwhile, Holly, in another court action, the U.S. Supreme Court has refused to hear an appeal of a lower court decision upholding same day voter registration in Montana.
Holly Michels: Yes. The state of Montana under Attorney General Austin Knudsen had made this appeal to the U.S. Supreme Court. It was over election related laws, like you said, passed by Republicans that would have ended same day voter registration in Montana and also barred anyone who collected ballots for people who weren't able to return them on their own, to be paid for that ballot collection work. The high Court didn't give a reason for why they won't hear the case, which is normal in a situation like this, where they decide they're not going to take something up.
But the argument here being made by Montana via Attorney General Austin Knudsen office, it's kind of interesting. It relied on this idea of the "independent legislature theory," which boils down to essentially that state legislatures have the ability to regulate everything to do with federal elections in the state, so they would have full control over things like this, regardless of what courts or anyone else said. The U.S. Supreme Court in 2023 actually rejected that theory from a case in North Carolina. So, looks like that's the end of the road for this, as far as I can see.
Sally Mauk: Lee, Montanans who traveled to Washington, D.C. earlier this week to attend Donald Trump's inauguration, lost the opportunity when the ceremonies got moved indoors. And Missoula resident Susan Reneau was one of those who was more than willing to brave the cold and got locked out.
Susan Reneau: "I'm disappointed, but I will say that I guess safety was of the utmost and there was concern for the cold. Actually, I had tickets to be way up close. And so now I won't be there."
Sally Mauk: Well, especially for Montanans like Susan, Lee, it probably wasn't that cold.
Lee Banville: I mean, 22 degrees - come on! I mean, I came into the studio today. I lived in D.C. for 15 years. It's not a city really built to deal with winter weather. And, you know, when you're dealing with these large crowd situations, I think there's always a lot of caution. I also think a little bit of it is that for Donald Trump, I mean, big indoor events, which is what it ended up turning into at one of the local sports arenas, is kind of his his wheelhouse. And so, you know, the idea of sort of doing that big multi speaker sort of extravaganza with the signing and all the things that he did on Inauguration Day, kind of fits his way of doing this stuff. But for those folks who really did see this as an opportunity to see a moment in history, I think an abundance of caution, which is really what they were kind of operating under, is what drove the event inside and left a lot of people outside looking in.
Sally Mauk: Yeah, tens of thousands.
Lee Banville: Indeed. Yeah, it was a lot.
Sally Mauk: Yeah. Holly, some Montanans who were jailed for participating in the January 6th insurrection have been pardoned and freed by the new administration.
Holly Michels: Yeah, Sally. I think most prominent in that group would be Stewart Rhodes, the founder of the Oath Keepers, who actually had his sentence commuted. He was convicted in 2022 of seditious conspiracy and was in federal prison on an 18-year sentence. And then there were a fair amount of other people from Montana who were in that pardoned pool. We had Isaac Sturgeon from Dillon, who was serving a six-year sentence. The Hughes brothers from East Helena, who were among some of the first people to breach the Capitol on January 6th. Hank Muntzer of Dillon, who was sentenced to two years and then a handful of others who have Montana ties, either born here or lived here at some point. So, it did affect a handful or more people from the state or with ties to Montana.
Sally Mauk: Well, Holly, I have a feeling it's not the last we're going to hear of Stewart Rhodes.
Holly and Lee, we're out of time. I'll talk to you next week.
"Capitol Talk" is MTPR's weekly legislative news and analysis program. MTPR's Sally Mauk is joined by Montana Free Press State Editor Holly Michels and Lee Banville, Director of the University of Montana School of Journalism and Professor of Political Reporting.
Tune in during the legislative session online Friday afternoons and on-air Saturdays at 9:44 a.m. Subscribe wherever you get your podcasts.
