Montana Public Radio

Capitol Talk: Abortion, Transgender Rights And Open Meeting Laws

Jan 22, 2021

This week on Capitol Talk, restrictions on abortion and trans rights dominate the House Judiciary Committee while that same committee's Republicans bar reporters from a meeting. All that as old fissures reappear in the Republican caucus.

Listen now on Capitol Talk with Sally Mauk, Holly Michels and Rob Saldin.

Sally Mauk Holly, the Judiciary Committee this week passed, on mostly party line votes, bills aimed at limiting abortions and limiting options for transgender Montanans. Let's start with the abortion bills that are now headed to the full House. And these are bills we've seen before in previous sessions.

Holly Michels They are. They're pretty controversial pieces of legislation, and it feels to me like they're hitting pretty early on in this session. Like you said, there's four abortion bills that all advanced out of the House Judiciary Committee this week. Those were on party line votes, with Republican support and Democratic opposition.

One bill would ban abortion after 20 weeks gestational age. The second would require notification of the opportunity to have an ultrasound before an abortion. The third would require a woman to have what's called informed consent — that includes warning of death and other dangers at least 24 hours before a medical abortion. And the last would put to voters in the next election the so-called Montana Born Alive Infant Protection Act.

Three of these bills were vetoed in the last session by the now former Democratic Gov. Steve Bullock, but we're in a much different landscape now with a governor — Republican governor — who's made very clear he does not support abortion.

Mauk Well, in a hearing on the bills Holly, both supporters and opponents presented it as a choice. Here's Great Falls Representative Lola Sheldon-Galloway, who sponsored one of the bills.

"Montanans can make the right choice today to move forward, to take the ethical position to protect the unborn and give them life."

Mauk And here's opponent Kelsen Young with the Montana Coalition Against Domestic and Sexual Violence.

"Trust women: Empower us, give us choices, allow us to make the decision that is right for us and our families."

Mauk And these are the classic arguments, Holly, in the abortion debate; and that's the rights of the fetus versus the rights of women.

Michels Yep. We're hearing a lot of the same arguments that we hear each session from lawmakers, a lot of organizations this session as well, and then people who oppose abortion that they don't believe it's morally right. 

They're really seeing these bills as steps that Montana can take as a state to reduce access to abortion while we still have the right secured at the federal level under Roe v. Wade. And we're also hearing some framing from supporters of these bills that they would somehow protect women by making them more informed.

But what opponents are saying is what they're really doing is putting in place roadblocks for a woman seeking access to health care. You know, they're saying that these really interfere with a woman's ability to have frank conversations with their doctors at really intense and critical moments, and also just make their own choices.

They're also raising — and I think this is a bit of an acknowledgment in the changed political landscape we have now — that these bills are really likely to face legal challenges if they are passed through the Legislature and signed by the governor.

Mauk Well, another bill that passed the Judiciary Committee, Holly, would force transgender Montanans to compete with their gender assigned at birth in sports, and Flathead Republican John Fuller is the sponsor.

"I have spent my life's career defending, teaching, counseling and encouraging children to achieve their dreams, and helping prevent them from making decisions that could irrevocably harm their future." 

Mauk But the ACLU, Holly, argues the bill is discriminatory.

Michels Like we heard Fuller say, the people who support this legislation say that they're trying to protect people. But what we heard from opponents — who far outnumbered supporters and are the people who would be affected by this bill — is that this legislation would do a lot more to hurt them than help them.

So, I know lawmakers have gotten a lot of feedback on these bills, both before — we saw a lot of testimony during the hearing — and then I'm continuing to see lawmakers just piled up with, you know, these forms that show comments they're getting from the public.

So it did clear the committee on almost a party line vote,11-8 with one Republican voting against it. And we'll see — I think things may or may not look different on the House floor. It'll be interesting to see how the debate goes there.

Mauk Rob, as Holly mentioned before, all of these bills, if they do become law, are no doubt headed straight to court.

Rob Saldin Yeah, the legal challenges are a given. It'll probably keep Austin Knudsen, the attorney general, busy, you know, assuming these things do get passed and signed into law by the governor. And I suspect that Knudsen would welcome the opportunity to defend this legislation.

You know, for one thing, the legal action is likely to be pretty high profile, which is always an attractive thing for a relatively young, ambitious politician.

But also, I think for many — and I think we heard that in some of the clips — probably even most of the Republicans supporting this legislation, this is a matter of deeply held principle and conviction. Certainly within the pro-life movement, the conservative legal movement, you know, abortion has been a central focus, as Holly mentioned, dating back to Roe v. Wade, which a lot of conservatives and Republicans see as an atrocity, both on legal grounds and because of its practical consequences. And so there's been this very serious, multi-decade project since then to put in place a judiciary that would reconsider that decision and to have cases work their way up from the states. You know, for a long time that project looked like it was kind of a long shot, but now all of a sudden the federal courts have been overhauled and the Supreme Court looks different than it did a few years ago.

So among the supporters of this, there certainly is a recognition that this stuff is headed to court — that's part of the process. And now more than ever, I think there's a good deal of excitement to see some of those cases work their way through the system, And ultimately, for conservatives, to see what the Supremes have to say. 

Mauk Holly, Republicans on the Judiciary Committee this week barred reporters from a caucus they held to discuss these controversial bills. And that's despite Montana's strong open meetings laws. How'd they get away with that? How'd they get away with barring reporters from that caucus?

Michels So what happened when this House Judiciary broke to caucus — you know, legislators went to the basement. I ended up following Democrats who just let us into the room they were caucusing in, and we could observe and take notes and cover it like normal.

What Republicans did is told reporters they were not going to have a quorum, so the meeting wasn't open. They base their quorum number on the count of the full committee, not just the Republicans in the committee. So with 19 members [in the full committee], they had nine people inside the room and they argued that because they didn't have a quorum of the full committee, they weren't able to conduct any business. So this wasn't open to the press.

In caucus meetings like these, at least from ones that had been able to observe, lawmakers generally talk about how they'll vote on bills and why they're voting the way they do. They're planning who will speak for or against bills and kind of refining their arguments. It's really good insight into understanding a lot of things that happen during these committee votes, but we didn't get to see that with Republicans this week.

Mike Malloy — who's a pretty well known public access attorney in Helena — said after this meeting, that in his legal view, closing it to the press likely violated open meeting laws. But he did acknowledge that there's not been a court case to determine this question definitively, so it still is an open question.

Republicans are contending that they didn't have a full caucus, so it wasn't public. And Committee Chair Barry Usher said that he wanted it closed because sometimes the conversations that happen in these meetings are what he called "emotional" and are best not played out in public.

Usher — this was interesting to me — also said when the committee reconvened that it would be his policy to do this through the session to keep the numbers down so the meetings weren't public. So I'm curious to see if this happens more frequently, and if other committee chairs do what Usher did.

Mauk Rob, even if Republicans meeting in secret would pass legal muster, it's not a good look. There's a good reason Montana has some of the strongest open meetings laws in the country.

Saldin These issues do crop up at the Legislature from time to time, over these meetings and journalists' access to them.

Sally, as you mentioned, you know, we do have really strong protections in Montana for access to this stuff, and that flows out of the state constitution in particular — there's a right to know provision, right there at the beginning of the Constitution, that says we have the right to observe the deliberations of state agencies and public bodies so long as there isn't a kind of sensitive privacy issue for a particular individual that warrants an exception.

Now, every state has open meeting laws, but Montana's are definitely among the strongest. A lot of other states have various other exceptions — you know, we've only got that individual privacy exception. And a big part of the explanation, I think, for why ours are so strong relative to other states is just because we have this long and rich tradition of corruption and bribery in our state's history.

I think maybe another reason for, certainly the strong language in the Constitution, is that our current constitution was passed in 1972. And that was right at the beginning of this national trend towards all kinds of good government reforms, most notably "sunshine laws" designed to create transparency and to open up government and allow citizens and journalists to see what's going on.

You know, some would certainly argue that there have been some unintended consequences to those laws, that it's kind of made the deliberative function of legislative bodies — including our Legislature, including Congress — more difficult, and it leads the members within those institutions to play more for the cameras rather than focusing on engaging with their colleagues. But in any event, the legal foundation for all of this is, as you say Sally, very strong in Montana. 

Mauk Holly, there's still a split in the Republican caucus in the House between moderates and conservatives, and that split resurfaced this week with a vote to put Great Falls Republican Ed Buttrey on the House Rules Committee. And Buttery is considered to be one of the more moderate Republicans that conservatives have a problem with.

Michels It's a big message from the House Republican caucus this session that they're moving forward as one party, but I think this curfuffle on the floor shows that's not the case at the moment.

The Rules Committee — all the procedures and policies that the House sets for itself through that Committee have really huge effects on how the session turns out. It can dictate everything from how hard or easy it is to push a bill through, or even get a hearing. And House Republicans are actually operating under a temporary set of rules. Because [of] this division in their caucus, they haven't been able to come to consensus on that.

So a few farther right Republicans in the House questioned the Speaker, Wylie Galt of Martinsdale, why there was this vote on the floor this week. And Galt took questions for a little while.He said, you know, he wanted the full range of caucus members to have their voice heard. But at one point, he grew pretty short in his answer to Rep. Brad Tschida, a Missoula Republican, and said basically, look, I'm done taking all these jabs, we're moving on, we're having a vote. And the vote ended up being 66-34 to put Rep. Buttery on this committee.

So if you're looking at it, that shows kind of an even split within the Republican caucus. You had 33 Republicans voting to put Buttery on this committee, along with all the Democrats, and 34 against it. So kind of split right down the middle there. It'll be interesting to see where this goes. 

Mauk Rob, this moderate-conservative split I'm sure will continue to show up as the session wears on and probably eventually have an impact on what legislation is passed.

Saldin Well, yeah Sally. I mean, this, I think, has been one of the, if not the, defining feature of our recent legislative sessions.

In past sessions, we've seen that group of moderate Republicans. They don't like that label — they consider themselves to be the true conservatives. But however you want to classify them, you know, there has been this group that has often split off from the main group of Republicans to join with the Democrats to pass some of the most high-profile pieces of legislation, including stuff with the budget, including Medicaid expansion, and so on.

And, you know, the reality is, is that a lot of these same people are back. And so I guess I'm not surprised that some of those old tensions remain. I think what's a little more interesting this time is that, you know, the broader dynamics have changed — there's a Republican governor most notably — and so there was some speculation that well, maybe it'll be a little easier to hold the Republican caucus together. You know, we'll see. But I think as you and Holly note, you know, so far, indications are is that that split is still alive and well within the Republican caucus.

Mauk One thing that did not happen this week: There were no violent demonstrations at the Capitol, or really even any demonstrations to speak of, and I think everyone is breathing a sigh of relief about that. We'll meet again next week, and Holly and Rob, thanks so much.

Saldin Thanks Sally.

Michels Thanks 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 during the legislative session Fridays at 6:44 p.m., via podcast, or listen online.