Another state senator faces an ethics investigation. A state rep. suddenly resigns. A Missoula senator pleads guilty to a DUI. And a controversial "bathroom bill" awaits the governor's signature.
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, we've reached the midpoint of the session, and lawmakers are taking a much-needed break after a mad rush to pass or fail a bunch of non-revenue bills from one chamber to the other. But overshadowing all that is the opening of yet another ethics investigation, this time of Senate President Matt Regier. And this was prompted by a story your news organization, the Montana Free Press, recently published.
Holly Michels: Yeah, Sally. So late in their floor session Thursday evening, the Senate ended up voting to forward a complaint of possible waste, fraud and abuse by its president to the Legislative Auditor for review. This comes like you said, Sally, after reporting from Tom Lutey and the Montana Free Press that cites documents showing Regier hired a partisan council lawyer back in 2023 that was in addition to an existing council position that was allowed by law. Regier had a bill to create that second position, but it failed to become law that session. This lawyer's billing was kept below the threshold that would have required a contract in that year, though she was issued contracts in 2024.
But those contracts cite as their authority to hire and pay her, this 2023 law that gives the legislature the ability to become interveners in lawsuits. But that's not the work that she did under those contracts. So on Thursday night, Senator Shelley Vance, a Belgrade Republican, she brought a motion first to try to direct this matter to the Senate Rules Committee, which could have, in turn, kicked it over to the chamber's ethics committee. That was thwarted, though, by a substitute motion from Senator Daniel Zolnikov, a Billings Republican who was successful in directing this complaint to the legislative auditor.
So, the legislative auditor is also the person who, back in January, investigated former Senate President Jason Ellsworth, a Hamilton Republican. In that case, the auditor found that Ellsworth had improperly handled contracts that he divided up and awarded to a friend for reviewing bills that become law this session to alter the judiciary. So that matter was referred to the Senate Ethics Committee. Part of it is also at the state Department of Justice now.
Worth pointing out here that both Ellsworth and Regier have forcefully denied any wrongdoing in their respective cases. And the politics of all this go back to Ellsworth. He was president, like we said, in the ‘23 session. He tried to be president again this time, but Regier won out in that race. But then on day one of the session, Ellsworth and a small group of other Republicans found alignment with Democrats to form the largest voting bloc in the Senate chamber. They've repeatedly hamstrung Regier's leadership this session. In that smaller group is Shelley Vance, who's the one who tried to send Regier to the Rules Committee. So, the full Senate right now is adjourned for their transmittal break. They're out of session until March 14th. But the Ethics committee is ongoing now, so we're waiting to see what comes out of that.
Sally Mauk: Lee, I can't think of a parallel to what's going on in this session, having two legislative leaders under ethics clouds.
Lee Banville: Yeah, I did some digging and I couldn't find anything in the last 50 to almost 100 years that could parallel the dual nature of these investigations. I think the other thing that's kind of remarkable about this is, the two stories are different. There are some important structural differences between what President Regier is accused of and what Senator Ellsworth is accused of. But they both kind of come down to skirting rules around hiring outside attorneys to play roles. And it's so funny because we spent so much time over this first half of the session, talking about the Ellsworth investigations and its ripple effects across the Legislature. And now we have essentially a similar sounding, I mean, you have to dig into the weeds and Tom Lutey's reporting on this is very detailed and so you can really get the full breadth of it, but you really kind of get the sense of it feels like a similar kind of accusation now against the guy who has been running the accusations against Ellsworth.
I don't think when we first heard about the Ellsworth stuff, we would have assumed the ramifications that was going to have in creating this new coalition and really changing the whole dynamic with the Senate that we've seen in this first half. But now with the Senate President facing a similar kind of investigation, it raises the question of what's the second half going to look like? Is it going to be functional? Is it going to even be more dysfunctional than some of the internal spats we've seen in this first half? It's too early to tell. And obviously, you know, these investigations need to be had and we need to see what the ethics committee comes out with about Regier and what the DOJ finds out about Ellsworth, but I think it's easy to say that that split within the Republican Party is probably going to feel a lot deeper when they get back here next week.
Sally Mauk: Also, Holly, right before transmittal, Republican Representative Ron Marshall of Hamilton suddenly resigned after a bill he opposed, passed.
Holly Michels: Yeah, Sally, there's a lot going on here. Marshall said he was frustrated with the bill you cited and also operations in the building. Specifically, he says he feels like lobbyists run things up here at the Capitol. And he said that other lawmakers in the state, including those in his own party, are unscrupulous.
Ron Marshall owns vape shops, and he carried legislation to try to alter the regulation of that industry. But he says he ran into roadblocks thrown up by lobbyists from two large tobacco companies. Marshall actually tried to sue over that in federal court, saying lobbyists couldn't do what they were doing because of this agreement with major tobacco companies following a big settlement back in 1998 that the state attorney general is charged with enforcing; and a federal court threw out Marshall's lawsuit because of that, saying, 'Hey, this isn't our place to enforce this. This is the attorney general's role.' And then Marshall, like you said, was mad about this bill that he thought gives preferential treatment to big tobacco companies prioritizing their products over vaping products. So, he's resigned now. The Ravalli County Central Committee — Ron Marshall represented House District 87, in the Bitterroot — they're tasked with picking three options for Marshall's replacement, and then they'll forward that list to the county commission, who then makes the final selection for replacing him.
Sally Mauk: Well, here's what Marshall said about the influence of lobbyists at the Legislature.
Ron Marshall: Don't ever think that the people have a say up here, because you don't.
Sally Mauk: Those are strong words, Lee, that the people don't have a say.
Lee Banville: Yeah, they're very strong words. Mr. Marshall has not been a quiet wallflower in the legislature. I mean, he's been very much vocal about all of these issues. And and so sort of to say that the, the people have no voice. I mean, in some ways you can say, well, actually, he’s their voice. He was sent there to be their elected representative. But also, it's important to remember, obviously, Capitol Talk only happens every other year for 90 days because that's when the Legislature meets. And that doesn't mean that's the only time government functions. And so lobbyists do have a bit more of a role in this state than they do in other states where the Legislature is meeting all the time because they are the ones who are there all the time talking with executive branch officials and enforcement agencies as well as legislators when they're in session.
And so it is true that lobbyists have a unique role in Montana because of the structure of our Legislature, that our elected members, the voice of the people, come in for the set period of time. Obviously, there are meetings that happen in between the sessions, but, I mean, there isn't that sort of constant voice of legislators, which is a thing that we've all said we're okay with. And so, for Mr. Marshall to sort of walk away, it feels a little personal, right? That he fought for this bill that he believes in, that affects his industry. He lost. And it kind of looks like he's taking his ball and going home. But, you know, obviously he's also deeply frustrated by the fact that effective lobbying can thwart an effort to do legislation that they feel like is appropriate. And so, it's both a structural question, but I think it's also a little bit of a personal frustration with their inability to do what they wanted to do.
Sally Mauk: Another lawmaker making news this week, Holly, outside of the halls of the Capitol was Missoula Democratic Senator Ellie Boldman who got busted for a DUI in Helena.
Holly Michels: Yeah, Sally. Montana Public Radio's Shaylee Ragar broke this story about this DUI. It happened on the night of the state Democratic Party's major fundraiser here in Helena at the Mansfield Metcalf dinner. Boldman was at that event and then seen later at this downtown bar. According to a report from the Helena Police Department, Boldman was asleep in her car blocking the roadway when officers found her. Her blood alcohol content was .149, which is above the legal limit of 0.08. Boldman pleaded guilty in municipal court in Helena, and she was fined $1,000 with $300 suspended and got a 180 days suspended jail sentence. She also can't go into a bar or casino for six months and has to undergo a chemical dependency evaluation. Boldman said that she was waiting for a ride in her car and fell asleep, and that she didn't intend to drive the vehicle. Democratic leadership said through a statement they were disappointed in her actions.
Sally Mauk: Boldman took responsibility and said this:
Ellie Boldman: I certainly understand the letter of the law, which is why I just wanted to pay the fine and take care of it today.
Sally Mauk: Lee, she's hardly the first legislator to get a DUI, and fessing up helps, but it's still it's not a good look.
Lee Banville: It's hard because on the one hand, these elected representatives are under enormous scrutiny that a normal person isn't. But they also choose to put themselves in that scrutiny, be it by running for office and sort of thrusting themselves into the public eye. Where it gets complicated is how do you take responsibility for this? How do you move on? How do you respond? And so, Senator Boldman's statement and pleading guilty — I think the hope is that this will be a story that will drift off into the sunset. But, I mean, it will also be a little bit about how does she respond to this, how does she move forward, that she become an advocate for certain things? I think that there are certain ways that we've seen legislators and other elected officials react to what is largely a personal scandal. And so, we'll have to see what the senator does.
Sally Mauk: We're going to talk about actual legislation now, instead of the legislators. And one of the bills that has passed both the House and Senate, Holly, is the so-called 'bathroom bill', which would require anyone using a public bathroom in Montana to use the bathroom of their biological sex at birth.
Holly Michels: Yeah Sally, this is House Bill 121 from Representative Kerri Seekins-Crowe, a Billings Republican. Like you said, it would require public and some private facilities that have multi-user bathrooms to make this the exclusive use of males or females based on their chromosomes. Critics of the bill said that that could be difficult to figure out. There's no language or direction in law of how that would actually be enforced. It would also create this two-year window for anyone who feels the law was violated to sue a facility.
So this bill has cleared the Legislature. According to the Legislature's bill tracker, it has not yet been delivered to the governor's desk. So, he hasn't had that clock started of the bill hitting his desk to act on it. But there's also similar legislation working its way and it cleared the House recently on a 52-45 vote headed for the Senate that's also aimed at transgender Montanans. This is from Representative Jedediah Hinkle, a Republican from Belgrade — House Bill 446. It would say that any person who exposes their genitals to a person of the opposite biological sex as assigned at birth, which is the language of the bill, would be subject to indecent exposure laws. Existing indecent exposure laws in the state have requirements the action of exposure is meant to cause harm, but Hinkle's bill would remove that intent requirement. And opponents of the bill are pointing out it could criminalize things like using a changing room at a gym or using a urinal at a public restroom. So there's a couple different policies advancing through this session.
Sally Mauk: Missoula Democratic Representative Zooey Zephyr, who is transgender, spoke in opposition. She told her how it would affect her going to the changing room of a local gym.
Zooey Zephyr: This law would make the process I do regularly in my hometown of Missoula an indecent exposure law. For the edification of this body, I am a trans woman who has undergone gender reassignment surgery. I have female genitalia. How are they supposed to know? Are they supposed to say, 'Oh, I recognize Representative Zephyr. We should target her because she had the audacity to live her life.' I hope this body would one day leave my people alone.
Sally Mauk: She makes a point that it would be very tricky to enforce this law.
Lee Banville: The enforcement question on all of this is really complex, especially the first bill that Holly talked about is really partially about empowering individuals to sue institutions for allowing something to happen in a bathroom that they are in control of, and so it's actually using citizens to enforce it in part, which I think is a another sort of complex mess that we might be opening up here, where it's like litigation between a person using a bathroom and the place that runs the bathroom. I mean, that creates all sorts of liabilities for business that I'm sure they're not going to be crazy about as we really start to tease out what this really looks like.
And then we have what Representative Zephyr is talking about, which is this indecent exposure law, which could create situations where enforcement of this is going to be incredibly messy and complicated. It's like, how do you get that granular into individual experiences and communal locker rooms and communal bathrooms and campsites? I mean, there's so many ways that you could run into some situation. Is the government really going to be that involved in all of our lives that they're going to be checking into these individual facilities and forcing us all to, like, live in a locker room and that's the only way we're going to be able to run these spaces, because the liability's too scary if we don't. Those are the things that I think might be somewhat unintended consequences of these laws that we're going to have to see, assuming A) they get passed, B) they're upheld as constitutional. And C) we actually get to the point of enforcement.
Sally Mauk: Big questions, and we are out of time. Lee and Holly, thank you both very much and enjoy the transmittal break.
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