Montana Public Radio

Supreme Court Hears Montana Case; Republicans Debate; Fundraising Update

Jan 24, 2020

A Montana case before the U.S. Supreme Court could have far-reaching implications for public education funding and the debate over the separation of church and state. Two candidates in the U.S. House race — one Democrat and one Republican — are running away from the pack in fundraising. A controversial tribal water compact could become an issue in the governor's race. And the three Republican candidates for governor square off in their first debate. Listen now on Campaign Beat.

Sally Mauk: Holly, this week, the U.S. Supreme Court heard arguments in a Montana case that could have far reaching impacts on education funding and how the separation of church and state is interpreted. And the case stems from a law passed by the Montana Legislature in 2015.

Holly Michels: There is a tax credit and a bill behind all this. It was a step by conservative groups in Montana, the most prominent being the Montana Family Foundation, to really begin a battle over what supporters call school choice. And that describes using public dollars to back private religious education. So the Legislature passed this bill and then in 2015 three moms up in the Flathead wanted to send their children to a Christian school up there. But what they ran into is, the State Department of Revenue when they wrote rules to administer this scholarship program, they wrote them in a way that excluded the money from going toward paying for children to attend religiously affiliated schools.

I think it's important to note, in Montana, that most private schools are religiously affiliated. When the revenue department did this, they cited what's called a no aid provision in our state constitution that says money can't directly or indirectly go to religious institutions in schools. That piece of all this has really become what the Supreme Court focused on Wednesday. There's history behind that. In the late 1800s there was an effort by James Blaine to amend the U.S. Constitution. So at the federal level, to stop money from going to religious institutions. And that was rooted in a really strong anti-Catholic sentiment. And that was ultimately unsuccessful at the federal level. But states amended their own constitutions to accomplish that with what are called baby Blaine amendments. The Institute for Justice, which is representing these Kalispell moms, they estimate that about 37 states, including Montana, still have those amendments.

Well, one thing, I think, that is also important to note in all this is Montana rewrote its constitution in 1972. There are actually two surviving delegates at the Supreme Court on Wednesday. And they and some other delegates wrote a brief to the court saying Montana's no aid clause really has nothing to do with bias against Catholics, but they really just wanted to ensure strict protection of state resources and public education. And they also were saying that they really think it's a protection for the religious institutions, saying if they accepted state money they could be under state influence as well.

Mauk: Kendra Espinoza of Kalispell is the lead plaintiff in this suit. And this is what she had to say about why she wants her children to go to a private religious school.

"I wanted my kids to have a really strong sense of right and wrong from a biblical perspective. And I want them to understand that are our sense of ethics and our morals come from God's word, not just man's ideas."

But Holly, the argument, of course, isn't over her school choice, but whether the taxpayer should help support her choice to send her kids to a private and usually expensive religious school.

Michels: Yep. The people who are on the other side of this — public education advocates in Montana — they point out that you're free to send your child to whatever school you want. They just think it's really important that state dollars aren't diverted to paying for that education. I spoke with some of those advocates who say, you know, they don't really feel the state is funding education enough to begin with and they don't want to see that carved out anymore. This case could have some really broad implications. I think a lot of the coverage we saw from people who were there tends to think that the court will, when it issues its opinion in June, side with these families.

Mauk: Rob, Senator Steve Daines attended the high court hearing this week; both he and Congressman Greg Gianforte. They strongly support tax dollars going to private religious schools. And here's how Daines framed it.

"This is about the fact that Montana parents and children are being discriminated against simply because of the school that they choose. This is about equal protection under the Constitution. This is about protecting our religious liberty," Daines said.

Mauk: It's interesting, Rob, that he frames it as a religious freedom issue.

Rob Saldin: That is interesting. You know, I think one thing that a lot of progressives failed to totally understand is how powerful the religious liberty issue is among conservatives. And, you know, going back to 2016, one of the big questions was like, how can all these evangelicals be supporting this guy, President Trump, who seems to be the antithesis of everything evangelical Christians stand for? Well, a big part of the reason is that there is this kind of apocalyptic vision amongst some people on the right, that everything hinges on the outcome of the 2016 election or the outcome of the next election, that so much of this is up for grabs. Everything in our culture, our society is pushing against it. And if we lose this election, we've lost the Supreme Court, it's over for good. And I think this is a big part of the reason why you see so many people on the religious right supporting someone like Trump. And that really resonates with people. And so I think that's why Daines likes to frame it in that way. Yeah. You know, the other obvious way to frame it would be, as Holly mentioned, through the broader school choice movement, which includes not only religious schools but also charters and homeschooling, various other alternatives to traditional public school. But I think for Daines and a lot of folks on the right, that religious liberty framing carries really a lot of power right now.

Mauk: Holly, Congressman Gianforte actually has some skin in this game, doesn't he?

Michels: He was one of the many parties that submitted a brief to the U.S. Supreme Court on this. And he's got some pretty strong ties. He's one of the major financial backers of the Montana Family Foundation. Then Gianforte is also a founder of a private religious academy in Bozeman, the Petra Academy. So it's something that he's been a part of and involved in for a long time.

Mauk: Rob, I think the broader discussion of public versus private education will be part of the Montana political debate in this election year, and both the congressional and state races, don't you?

Saldin: Yeah, I think it certainly could. You know, it's a little interesting to me that this case, the Espinoza case, came out of Montana, because relatively speaking, this broader issue of school choice, I think, has a lot more currency and other parts of the country than it does out here. Back east in a number of other cities where you do have some really bad public schools, this has been a big issue. Generally speaking, we don't quite have those kinds of issues as much in Montana. Now, to be sure, there are still people who would prefer alternatives to traditional public school for the reasons that we heard in that clip from Espinoza herself. But that seems to stem more from that kind of deeply held preferences that she referred to for a religious school, and less because, you know, her own public school is uniquely awful and she's desperate for some other option. But all that said, if the court does come down in the way a lot of people think it will based on what we know about the justices and based on oral arguments earlier this week, you know that absolutely, very well could crank up the intensity in our elections, because this does have real implications for school budgets and overall government budgets.

Mauk: We'll certainly keep an eye on what the court rules. We're expecting that ruling, as you said, in June.

Holly in the U.S. House race, the latest fundraising reports showed two of the candidates, Republican Matt Rosendale and Democrat Kathleen Williams, are leading the pack, each raising around $370,000 in the last quarter, and each with about $800,000 on hand. It's interesting how close Rosendale and Williams numbers are.

Michels: Yeah. Things are off to a really fast start in that House race. Williams has already raised about $1.2 million, and that puts her in front of Rosendale, who's just over $1 million. And I think, you know, you can get into the weeds, I guess, reading a little too much into what those dollar amounts and what they mean. But as we talked about before, in a state like Montana without a lot of good public polling, are there ways to gauge races? That is one way to measure how the candidates are doing and how they might stack up against each other. It's fair to say Williams and Rosendale both know who people are assuming are going to come out of their primaries. Rosendale is really tapping into money from political action committees that help boost his total. It's a network that he's cultivated from past bids for federal office. Most recently, he ran for U.S. Senate in 2018 and lost to incumbent Democrat Jon Tester. Over on Williams' side, her campaign is pointing out that she's gotten to the million dollar mark faster than any other Democrat in a U.S. House race has outside of a special election. And they're also making a pretty big deal out of that, well, about 80 percent of her money is coming from Montana.

Mauk: Rob, another issue that is surfacing in the U.S. Senate race is Senator Daines' support of the Confederated Salish and Kootenai Tribes Water Compact that needs congressional approval. And Daines has introduced a bill that would put that compact into law and it would settle thousands of water rights both on and off the Flathead Reservation. A lot of conservatives, including state senator and gubernatorial candidate Al Olszewski, are adamantly opposed to the bill and to the compact. I guess the question is, could this cost Senator Daines some conservative support?

Saldin: Yeah, I guess it is a question. I tend to think not. Daines is in such a strong position, he's not facing a primary challenge, or in fact there is never so much as a whisper about him getting primaried. And then the air is pretty much out of the balloon on a run by Steve Bullock, who is going to be the most formidable potential Democratic candidate. So Daines really is in a pretty commanding position here. Now, clearly, some conservatives are definitely upset over the water compact, especially up in the Flathead. So they're mad at him right now, but I don't see that really coalescing into any kind of institutionalized anti-Daines effort. So I just don't think that he has too much to worry about here. The one place though, Sally, where it's maybe a little bit more intriguing maybe in that Republican primary for governor; as you mentioned, Al Olszewski, who's kind of the face of the opposition to this, he's one of the candidates. And then you've got Tim Fox, the attorney general who supports it. And Greg Gianforte, who, to my knowledge, at least publicly, has not taken a position one way or the other on this thing. It does put Gianforte maybe in a little bit of a tight position just because Steve Daines is his former employee, a very, very close friend. So you've got Gianforte in this potentially awkward position between some of the conservatives who he'd love to have in his corner in this primary on the one hand, and then his old buddy, Steve Daines on the other.

Mauk: And I think you're right. I don't think he's come out for against. He's trying to straddle the middle on that, which won't probably hold very much longer. You'll have to take a position. We'll keep an eye on that.

Lastly, Holly, those three Republican candidates for governor held a debate in Billings this week. And it seems to me their policy differences are very slight, but they're emphasizing their experience and their backgrounds and hoping the voters look at that and decide who they want to vote for based on who they are versus what they stand for, since they seem to stand for pretty much the same thing.

Michels: Yeah. In that debate in Billings, we heard Attorney General Tim Fox try to make a lot of points here when he was asked what would you do as governor? He would respond, well, here's what I have done as attorney general and tried to sort of show his track record there. Gianforte did the same thing with his time in Congress, trying to say, here's what I've done for you at this level and here's how I will take that into the governor's office. Fox kind of turned that around to attack Gianforte, saying that, you know, a lot of things if you want to accomplish — I think they were talking about methamphetamine abuse and Montanans specifically — Fox was critical of Gianforte, saying, you know, we really need a secure southern border and that comes from a Republican majority in the U.S. House. And if you're not running for reelection there, you're really walking away from that and really trying to just highlight that Gianforte jumping out of the House race. So Fox is termed-out from running again for attorney general. Olszewski's kind of right there with them. But most of the back and forth was Gianforte and Fox. Fox pretty aggressively going after Gianforte at the start of the day. Gianforte said pretty clearly he wasn't there to attack anybody else and stuck to that the whole time, even as Fox took a bunch of digs at him.

Saldin: You know, another thing that caught my eye is that Al Olszewski said that he was not going to drop out and that he's been getting pressured to do so. And that pressure presumably is coming from Gianforte or some of his allies. And you got to think, if Al Olszewski is going to be drawing votes from one of the leading candidates, probably more of those votes would come from Gianforte from the conservative side. So I thought that was interesting that Al Olszewski right out of the gate says he is in this thing till the end.

Mauk: I think he said "I will not be body slammed out of the race," right?

Well, we will continue our discussion next week. And Rob and Holly, thanks. Have a great weekend.

Campaign Beat is a weekly political analysis program produced by Montana Public Radio, featuring University of Montana Political Science Professor and Mansfield Center Fellow Rob Saldin, Lee Newspapers Capitol Reporter Holly Michels and host Sally Mauk.