Press freedom and press access are at stake in the fight over the Gulf of Mexico's name. State legislators want to make sure you use the right bathroom. A landmark climate change court decision is behind a slew of bills to change Montana's environmental laws. And Montana Republican lawmakers join Vice President J.D. Vance in making fun of climate activist Greta Thunberg.
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: Lee, the Trump administration this week barred the Associated Press from covering events in the Oval Office because AP has said it will continue calling the Gulf of Mexico the Gulf of Mexico instead of the Gulf of America. President Trump changed the name of the Gulf in a recent executive order, but AP is not going to use the new name in its stylebook. And the book, I might add, is kind of a Bible for journalists around the world. AP says this is a First Amendment issue.
Lee Banville: Yes. The AP serves over 1,000 news organizations, and the AP Stylebook is really the go-to guide for how journalists write and report. And so it has wide ranging implications and whenever the AP Stylebook does something and they have lots of reasons. And so they say, 'You know, it's been for 400 years. It's an international waterway that is not controlled by the United States', which is why, actually, they're using Mount McKinley instead of Mount Denali, because they're like, 'America controls the territory and so they can change the name.' And so they have this rationale, but it has gotten them banned from covering certain events in the Oval Office.
We've seen this kind of behavior in the past by the Trump White House. In 2018, they yanked Jim Acosta's press pass from CNN. That triggered a federal lawsuit that went to a federal court. The federal court found that actually they had not done it the proper way, but they didn't talk about the First Amendment question. They talked about the Fifth Amendment, that there was no process that was outlined. And so, it will be interesting to see, if we do see a lawsuit here, if they've kind of clean that up and, will we actually see the First Amendment question come to bear? What's important to understand is, I mean, obviously, access to government officials and to government events is critical for news organizations to be able to provide that coverage. And the AP is providing it, like I said, to more than a thousand other news organizations. And so this does have wide ranging impact. We have seen in the past, lawsuits where they won't take questions from a certain journalist and often actually, we lose those cases as journalists — that they don't have to answer our questions, but typically they have to let us in. And so, we'll have to see what happens as this unwinds. But it seems like something where, my guess is, we want to see either side move, and we'll probably see this thing land in court.
Sally Mauk: This is an ongoing issue for journalists; how do you stand up for yourselves and still get the access you need to do the reporting you need? It's an ongoing dilemma for journalists.
Lee Banville: The First Amendment oftentimes doesn't cover the process. What it covers is publication and broadcast. And so, it says, 'The government can't stop us from having Capitol Talk, but they can make it really hard for us to get information.' Now, there are lots of laws and in Montana, we have a right to know and a right for public participation, which actually strengthens the issue of access here in Montana. But nationwide, there is no such right. And so, what we see is more like federal laws, like the Government in the Sunshine Act or the Freedom of Information Act. And so, access is really a tricky question and one that journalists have struggled with for a long time. But as hostility has grown between the press and the political set, it's become much harder for them to navigate.
Sally Mauk: Holly, a bill is on its way to the governor's desk that would require people to use bathrooms and public buildings that align with their sex at birth rather than their gender identity. And the so-called Bathroom Bill would go into effect immediately after the governor signs it, which he's expected to do.
Holly Michels: Yeah, Sally. We've seen Lieutenant Governor Kristen Juras at a press conference in support of this bill and also testify in support of it. So, I think we can take that as an indicator of how the governor will act when the bill does reach his desk. There are concerns from some groups like the League of Cities and Towns over how to enforce this bill, which, like you said, is effective immediately upon Gianforte signing it.
What the bill does is give any person who says they encounter someone of the opposite sex, as defined in the bill, a two year window, where they could sue a facility if they encounter that person in a bathroom, changing room or other facility that's included in the bill. Enforcement falls to local governments or entities here. But the bill doesn't really say how these facilities would go about determining the chromosomal makeup of someone or their reproductive biology, which is how the bill says a person's sex is defined.
Both the bill's sponsor, Representative Kerri Seekins-Crowe of Billings during hearings for the bill, and then [Gov. Greg] Gianforte in a press conference this week have made references to things they think would alleviate these concerns by creating unisex or single occupancy bathrooms. But that's not something that comes without additional cost.
There's also concern from places like domestic violence shelters who worry they could lose federal funding by complying with the bill, which would put them at odds with federal requirements to access money they use to operate.
Those who support the bill say it's about safety for women. But opponents point out that it could create a scenario where a trans man under this bill would be required to use the women's restroom, which could create confusing situations where people are uncomfortable.
These bills were actually fast tracked by Republican leadership, which is why we're seeing them all the way through the Legislature and all the way to Gianforte's desk.
Sally Mauk: Lee, Democratic lawmakers like Cora Neumann argue the Legislature shouldn't be wasting time on who can use what bathroom. Especially since it's likely going to be challenged in court. And here's what she said:
Sen. Cora Neumann: This bill is going to yet again waste taxpayer money on a court case. It is going to harm our businesses, colleges, schools, domestic violence shelters. This is going to cost Montanans money.
Sally Mauk: She's right, Lee
Lee Banville: Yeah, it is most likely going to trigger a lawsuit. And I'm not quite sure what has changed because this happened two years ago. And so it does seem like we'll be seeing this debate hashed out in court once again with precedent pointing very clearly against the law. Ms. Newman went on to talk about also the distraction that this bill has been. And I think that Republican leaders have said, 'Well, no — we’re able to kind of walk and chew gum at the same time. We can fast track this bill and get other bills moving.' But it also reminds me that I remember at the State of the State [address], the governor mentioned that if we could get property tax reform through by the middle of February, it could be implemented this year - and it's not done. So, I think you can look at some of these more controversial and maybe more significant pieces of legislation that the legislature is grappling with and see that actually traction hasn't really been very strong on those types of bills. While this one has, as Holly pointed out, sailed through.
Sally Mauk: Well, Holly, in the wake of the state Supreme Court Held v. Montana decision requiring the state to include climate impacts in their environmental review of projects. Legislators are considering bills to change Montana's Environmental Policy Act, known as MEPA, and they want to change it in ways that would basically weaken the act.
Holly Michels: Yes, Sally, there's several proposals floating around to make changes to MEPA, but the Republican ones, as expected, are doing better in a Republican-majority Legislature than ones that have been introduced by Democrats.
There's sort of three major GOP bills that also have the support of industries associated with fossil fuels. The first is from Senator Wylie Galt, a former Speaker of the state House. His bill starts with several clauses that say it's not exactly clear what causes climate change. To be clear here, there's science that shows that greenhouse gases emitted from human activity are the culprit of climate change. The bill then goes on to say the state will review emissions from proposed projects, though only those with direct action in Montana and not anything associated, like the transporting of coal or burning it in a different state. The bill also makes clear it's just a review, not something that could lead to those greenhouse gas emissions being regulated.
There's another bill from Speaker of the House, Brandon Ler, that would get a curtailing how MEPA can be used in courts to try to challenge an approved project. And it would say that a lawsuit over a project has to be brought in the county where that project is located.
And then there's one from Representative Greg Oblander or Billings. It would say that the state cannot enact any air quality standards that go farther than the federal government's Clean Air Act. Those bills are all still in play.
There was another bill from a Democrat, Debo Powers of Whitefish, that would get rid of all the language lawmakers passed last session to try to ban any greenhouse gas analysis under MEPA. That's the language that was found unconstitutional in the Held decision. But that bill has already been defeated by the Republican majority. There are some other bills swirling around this, but these are the major ones. And I think we can likely still see changes to these through the session, so we're keeping an eye on them. Last session we saw this last-minute bill, on banning greenhouse gas analysis. And we often see these kinds of issues tied up in the endgame pieces of the legislature. So, I think there's likely more to happen here.
Sally Mauk: Lee, Republican Senator Galt and Representative Randyn Gregg had this to say about the Held court decision on a recent podcast.
Sen Wylie Galt You know, I have the right to do business in this state, especially in the petroleum industry that, you know, has been paying a lot of our taxes for a long time and funding this state to make sure that they can still do business in the state. So we have a package of bills that are going to be coming through that, kind of help us get through Held. Make it defensible. Listen to them, understand where they're coming from and, you know, get it to where we can get back to business as well.
Rep Randyn Gregg Absolutely. And that Held decision, it was kind of like we had — I'm going to say something a little spicy — a bunch of little Greta Thunbergs, it seemed like [laughter].
Sen Wylie Galt Yeah.
Sally Mauk: Greta Thunberg, of course, is a well-known Swedish climate activist. And this was meant, I guess, as a dig.
Lee Banville: This week we saw Vice President Vance criticizing Ms. Thunberg in a speech to European leaders that spoke to the same question of criticizing her as sort of an outsider — an agitator. What's interesting is, they're kind of choosing to personalize it. And the Held decision was a lawsuit brought by a series of — they were minors at the time when they filed the lawsuit. I don't know. It's just surprising they don't choose to go after, say, like Our Children's Promise, which was the organization behind the lawsuit that also sued federally. And you could sort of, like, make it about this outside influence, but instead they're kind of making it about the kids. Maybe that will land, but it also might look kind of — well, it'll be interesting to see how the optics of that work out, because really what that lawsuit was, was, yes, it was organized by an outside group, but it had young people from the state of Montana who, for example, Gov. Greg Gianforte has said he wants to keep in Montana to sort of make it sound like that we kind of want them out of here, or that they're not really like us or they're not one of us, I think is kind of a political interesting call to make. And we'll just have to see how people respond to it.
Sally Mauk: Well, finally, Holly, yet another episode in the ongoing saga of Senator Jason Ellsworth's ethics emerged this week when we learned he tried unsuccessfully to invent yet another state job for his friend and former business associate, Bryce Eggleston.
Holly Michels: Ellsworth tried to get Eggleston a job in a communications capacity at the Clerk of the Montana Supreme Court, which is an office that Ellsworth actually ran in the primary back last June and lost to Clerk Bowen Greenwood, who was an incumbent and won reelection to that office in November. Greenwood has said that the job wasn't his idea. Ellsworth pushed for Eggleston and Greenwood to talk several times about this position. It never materialized. But it is another example, like you said, of Ellsworth sort of working government in ways that aren't often visible to the general public.
Sally Mauk: Well, Lee, it's not necessarily unusual for lawmakers to help friends and colleagues get a job with the state or wherever, but there are ways to do it that don't stretch ethical or legal boundaries.
Lee Banville: Yeah. And usually, the job exists that they're trying to help them get. It's sort of more evidence of some of the things that actually Republicans have been lobbing at Senator Ellsworth about his decision making and his views of his office. I don't know if it will affect anything because it's just an added accusation on a series of accusations. But it is kind of remarkable that you have Clerk Bowen Greenwood saying like, 'This wasn't my idea. I don't know why we're talking about this.' It really does kind of stagger the imagination that this would be yet another example of what was happening towards the end of his time as Speaker in that time period that that has come under so much scrutiny in the last couple of months.
Sally Mauk: Right. It's remarkable we're still talking about Senator Ellsworth, too. Holly, Lee, we're out of time. I'll talk to you next week.
Tune in during the legislative session online Friday afternoons and on-air Saturdays at 9:44 a.m. Subscribe wherever you get your podcasts.
