Tonight on Capitol Talk: The state admits it needs to do a lot better job monitoring for-profit wilderness schools for troubled teens. Economics hold little sway in the effort to abolish Montana's death penalty. Money is being restored to the depleted Health Department budget. Another Montana campaign finance reform law is upheld. And lawmakers may have found a way to bridge the infrastructure impasse.
Sally Mauk: Welcome to Capitol Talk, our weekly legislative analysis program. I'm Sally Mauk, and I'm joined by University of Montana Political Science Professor and Mansfield Center Fellow Rob Saldin, and Lee Newspapers Capitol Reporter Holly Michels.
And Holly, Missoula Democratic Sen. Diane Sands has a bill that would move oversight of for-profit wilderness schools for troubled teenagers from a private board under the Labor Department to the state Health Department. And this comes after The Missoulian newspaper ran a series of articles outlining numerous serious complaints against these schools, and in the wake of the Labor Department's stunning admission this week that they've done a poor job of oversight of the schools.
Holly Michels: Yeah, The Missoulian spent about a year doing some pretty incredible investigative reporting into these residential treatment schools for teens. A lot of their work did focus on the oversight of these schools, which is specifically the board that sits under the Department of Labor. The board was formed by the Legislature about a dozen years ago as sort of a watered down compromise for who had authority over what the schools did. The Missoulian, in their reporting, found that in the dozen years about 60 complaints were made to the board and that none of them resulted in any discipline. The Missoulian found reviewing board records that there were things like claims of abuse, sexual abuse, mistreatment of children. There were unlicensed counselors, unsafe facilities and really just a lack of inspection by the board.
So, Sands's bill will get rid of this board, which as you said, sits under the Department of Labor, and move oversight to the state Health Department. Both of those agencies are supporting the move. The Health Department says it already has a quality assurance division that inspects facilities around the state; 300 of them, including about 30 youth residential treatment programs. So, they're saying they've got the expertise to do that, and the Labor Department did say in the hearing, like you said, it's a pretty stunning admission, that they really just hadn't done a good job of running the program and overseeing the board, saying, you know, they didn't have the expertise to do that.
Mauk: A few years ago, Anna Rau, who's a Montana Public Television producer, did a documentary outlining some of these problems at these schools, but nothing was done in the wake of that. And it seems like the problems with these schools, Holly, have been an open secret. It's not like this is news to the Legislature.
Michels: Yeah, there were some people who were around about a dozen years ago when this compromise to oversee the schools was hashed out. And they said the legislators knew at the time that putting it under the Department of Labor would set up a weak oversight system just because they didn't really have the ability to oversee these schools and what they were doing there.
Mauk: We'll see if they follow through. Now with oversight being more strict we'll see what comes out of the session, but it certainly looks like there is momentum in that direction.
Also this week, Holly, the House Judiciary Committee on a party line vote killed the latest attempt to abolish Montana's death penalty. That effort’s been made in every session I can remember, and once again it failed.
Michels: Rep. Mike Hopkins, who's from Missoula, this time around was making a financial argument for eliminating the death penalty. He's saying it's a costly process for what actually amounts to a life in prison sentence. That's because Montana is barred from actually putting people to death from a 2015 ruling in District Court. That's when a judge found that the only drug that's available under state law to put people to death doesn't meet a requirement in that same law about being ultra fast-acting. There's also an argument that death penalty cases are expensive. The Office of Public Defender estimates that the two death penalty cases it’s handling now cost about $1 million over the two-year budget. There's two people on death row at the state prison now and they’ve been there about an average of 31 years, which is something Hopkins pointed out to us: there's not really a death penalty, you know, that we're using in Montana right now. The last time the state put someone to death was in 2006. And like you said, you're going back as far as 1999, which is as far as the online tracking system goes. There have been attempts to abolish the death penalty, but they've all failed.
Mauk: Here's how Republican Mike Hopkins made his argument to abolish the death penalty.
“It's a death penalty under which no one dies. It does the opposite of what it's supposed to accomplish, and it does it in one of the dumbest ways possible. It costs way more money than what these individuals are experiencing right now, which is life in prison,” Hopkins says.
Mauk: And Rob, the economic argument is a strong one. But that's not the argument that held sway.
Rob Saldin: Yeah, exactly Sally. You know Hopkins is totally right. As a practical matter this is totally ridiculous, right? On paper we have the death penalty, but for all practical purposes we don't ever get around to using it. And in fact the state isn't in a position to carry out an execution right now even if it really wanted to, and there is no prospect of that changing in the foreseeable future. Yet just having it in existence in the abstract costs us a ton of money. So, that seems totally crazy, but I think you're exactly right.
I mean we do need to note that focusing only on the current economic realities of this thing, it does, in a way, a disservice to the more fundamental considerations that are wrapped up in the death penalty. Most people approach this issue from a moral and ethical perspective, not from the perspective of economics. And this is just one of those issues on which Americans are very deeply divided. And both sides see the death penalty as a deeply moral question and obviously view themselves as being on the correct side of that debate.
We can look at polling on this. Polling has consistently shown that most Americans support the death penalty, although the gap there has definitely narrowed over time. The most recent numbers I've seen show about 55 percent of Americans support it. 40 percent oppose. But you go back to the mid-90s, support was up around 80 percent. So it's narrowed, but there's still reasonably strong support for the death penalty. But this is one of those issues that does have a real moral flair to it. And it means that economic arguments are only going to move the needle so far.
Mauk: It still comes down to an eye for an eye, whether you believe in that, I think.
Holly, this session is working to restore cuts made to the state Health Department in a 2017 special session, including a pay raise for some providers who work with people with disabilities, the elderly and so on. And Miles City Republican Eric Moore is chair of the subcommittee that oversees the Health Department budget.
“We've made some great investments here and some great fixes from the  cuts into provider rates for our most needy, which I'm proud of,” Moore says.
Mauk: But those fixes, Holly, are hardly final.
Michels: So this is a very early step in the state budget. From here it will go to the House Appropriations Committee. Then it's got to go on to the whole House and then through a similar process in the Senate. So this is very early but we are seeing indications toward rebuilding the cuts from 2017. Like you said, we saw lawmakers OK rate increases for what Medicaid pays some groups that work with the elderly, people with developmental disabilities and others. We saw that cut in 2017. So this is a build back.
There's also continuing increased funding for the high number of children in foster care. It's a number that's leveled off recently, but still is near record peaks.
We also saw lawmakers put some money toward the Children's Health Insurance Program, which is known as CHIP for Healthy Montana Kids. But that's one thing they're worried about going forward. They acknowledge they're going to need to find more money in the future because this federal government is stepping down the amount that it pays for that program, the share it picks up. So Montana’s going to have to pick up a larger part of that pretty soon.
The committee also put about $3 million toward Medicaid waiver slots that help older people with Alzheimer's stay in their homes. A lot of the money found to pay for this was located by eliminating positions, about 116 within the department. Those aren't jobs that were filled by people. They've been vacant for at least a year. In some cases several years. So that's helped find money to kind of fill these gaps. I did talk to the Health Department last year and they said with about 420 open positions they were kind of at an unsustainable staffing level. They didn't really have any immediate comment about the staffing cuts made after the Budget Committee made their decision. So we'll see sort of how that goes.
It wasn't just all positions cut though. Child Protective Services, which has really struggled with turnovers and staffing levels, is gaining 18 positions that are moving over from another facility that's scaling down.
Mauk: Well, they're trying to plug some holes that were left in the 2017 special session cuts for sure, but there's still funding for Medicaid expansion looming too. So, a lot of pieces have to fall into place here.
Rob, the U.S. Supreme Court this week declined to hear a case challenging Montana's DISCLOSE Act, and Gov. Steve Bullock is thrilled.
“I’m so pleased that the challenge to this law – when we got Democrats and Republicans to come together and it's been working in Montana – that that challenge was rejected by the U.S. Supreme Court,” Bullock says.
Mauk: And the DISCLOSE Act, Rob, requires dark money groups to be more public about their election spending, and it's a signature issue for the governor.
Saldin: Yeah, exactly. He should be thrilled about this one. This is the second big victory for campaign finance reform in just the last month. Remember back in mid-January, we had a very similar thing play out at the U.S. Supreme Court when the court declined to hear a case looking to strike down a 1994 voter initiative that limited donations to political candidates. And by refusing to hear that case, the court let that regulation stand. And it's good to go, end of story. Well, same thing here. The court declined to hear this challenge to the DISCLOSE Act, and with that the DISCLOSE Act is also good to go.
On the policy here, it seems to me that it's now pretty clear the court is open to regulations on campaign spending to a degree that wasn't at all clear following the 2010 Citizens United ruling. That ruling is the one that opened up the floodgates to new spending in elections by outside groups -- that is, groups that aren't part of the formal campaigns run by the candidates. And it did that on the rationale that limits on that kind of spending were violations of free speech. Well, in declining to hear these two cases, the court, I would say, isn't necessarily walking back its position in Citizens United, although, you know, maybe some people would see it that way. But at the very least it's saying, you know, ‘Hey just because we say that you can't place limits on spending by outside groups, that doesn't mean that it's a total free for all,’ right? Just because these outside groups have a constitutional right to get their message out, it doesn't necessarily mean that they have a constitutional right to keep all of the details of their operations a secret. And that amounts to a major, major clarification of their position on campaign finance. It's a big deal.
Mauk: And it's also a big deal for Gov. Bullock, who's trying to make, perhaps, a run for president. This is something that is good press for him and good timing.
Saldin: Right. In that clip you ran, Sally, he's talking about what a team effort it was, Democrats and Republicans. And of course that's absolutely true. But I think you're totally right; if we were to identify one issue that Bullock is most associated with, I'd say it's campaign finance. And these victories in the Supreme Court go way beyond Montana, right? This stuff has real national implications. So this is one of his signature issues. It's one that the progressive base cares deeply about. And this is something he can take out on the stump and say ‘Look, I don't just go around like some of these senators kind of sanctimoniously preaching about the evils of dark money. I've actually taken the lead nationally on doing something about it. I get results.’ That kind of a message is great for him,and so the politics of it work great for Bullock.
Michels: Finally, Holly, Rep. Eric Moore has come up with an infrastructure funding plan that appears to have bipartisan support, and that might actually make it possible to pass major infrastructure legislation this session. At least there is a glimmer of hope.
Michels: Yeah, so what Rep. Moore is proposing, he's calling the Infrastructure Economic Accountability Act, or IDEA Act. What it is, is a framework. It's not a bill that has infrastructure projects or funding in it, but instead it's sort of looking at how the state goes about taking on debt. It would cap the amount of debt the state could take on in two ways. One would limit as a percentage of the market value of all property in the state, and that would also cap the amount of debt payments the state could have to pay off bonding it does to do infrastructure projects based on the amount of revenue available. What Moore is saying is that this might help some of the problems that the Legislature runs into each session over how much it should borrow to pay for these projects, or if it should borrow anything at all, or if it should use cash and how much cash to leave in the bank at the end of the session. Those are clashes that have stalled out comprehensive infrastructure packages going back the last four sessions.
So, Moore is also saying in this bill maintenance would have to be done before new buildings were built. And then it would also clarify money put aside for infrastructure could be tapped in tight budget times to help with just the general functioning of state government. And that bill, as you said, it does have bipartisan support. It cleared committee on Thursday, so it's heading toward the full House. It is subject to a transmittal deadline because it's not a revenue bill. It doesn't have any money attached, so it needs to move pretty quickly over the next coming week.
Mauk: Objections to the bill might come from conservative Republicans who see any kind of bonding as a no go. That's just something they can't support no matter how it's presented, correct?
Michels: Yeah, Moore said there's always going to be some in the Republican caucus who just are ideologically opposed to bonding. What he's hoping through this bill is that by having sort of a framework and rules set up around how much bonding the state could take on and capping it, that might help enough people within the Republican caucus be comfortable about the state taking on debt.
Mauk: Well, we'll certainly be following that.
And you've been listening to Capitol Talk, our weekly legislative analysis program. I'm Sally Mauk, and I’ve been speaking with University of Montana Political Science Professor and Mansfield Center Fellow Rob Saldin, and Lee Newspapers Capitol Reporter Holly Michels. And Holly and Rob, I'll talk to you next week, thanks.