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The Session Week 13: Constitutional amendments, affordable housing, and climate

Corin Cates-Carney It’s legislative day 66. We’re in the home stretch of the 2023 legislative session. It’s time to debate changes to Montana’s Constitution. Lawmakers look at ways to address the state’s affordable housing crisis and make rules about what local governments should and shouldn’t be able to do to address climate change. I'm Corin Cates-Carney with Montana Public Radio and I'll be your host this week.

Eric Dietrich I'm Eric Dietrich with Montana Free Press.

Kayla Desroches I'm Kayla Desroches with Yellowstone Public Radio.

Amanda Eggert I'm Amanda Eggert with Montana Free Press.

Arren Kimbel-Sannit And I'm Arren Kimbel-Sannit with Montana Free Press.

Corin Cates-Carney Let's start with the slate of proposals to change the state's Constitution. There was a lot of speculation even before the session started about how the Republican supermajority would use their power to offer changes. Now, with the looming procedural deadline for those kinds of proposals, we're seeing them advance. Arren, what kind of changes to the Constitution are Republicans asking for?

Arren Kimbel-Sannit So there are almost 20 constitutional amendment proposals that Republicans have introduced. There's basically a little over a dozen that are sort of truly live proposals, and they cover a pretty wide swath of subject areas. There's constitutional amendments relating to taxation authority, constitutional amendments relating to the judiciary, the redistricting process and a whole bunch of other areas.

I think the ones that are probably the most significant at this point in the session are those that that affect the court system. There's a big proposal from Representative Bill Mercer, who's a Republican from Billings and a former U.S. attorney, that would end the practice of Supreme Court elections in the state. Montanans have elected their Supreme Court justices for basically the state's entire history. And this amendment from Mercer would do what some states do and give that power directly to the governor. So this is something like, like all constitutional amendments that the voters would have to approve if it gets out of the Legislature.

A Republican backed constitutional amendment would prohibit the use of political data to draw election maps, and give lawmakers more say over a process that is largely out of their control.

There's also some interesting ones that I think are sort of manifestations of Republicans' dissatisfaction with how the recent redistricting cycle played out. The next Legislature under the maps that the Districting and Apportionment Commission drew this year could very well lose several seats for Republicans compared to this session. So there is a bunch of amendments that would change the composition of the redistricting commission that would mandate that the Legislature has to approve whatever redistricting plan they come up with for it to take effect in March.

Corin Cates-Carney And then all these proposals that you mentioned, are these completely partisan or are there any that are getting support from Democrats?

Arren Kimbel-Sannit Mostly these are partisan. They're mostly Republican measures. And, you know, I think the reason for that is the size of the Republican majority, as you mentioned. So the way that these amendment referenda work is that lawmakers come forth with a constitutional amendment proposal. And in order for it to actually reach the voters to land on the ballot, it needs 100 votes and a two thirds supermajority in the Legislature. Republicans have 102 members in the Legislature, which means that they can theoretically put any of these constitutional amendment proposals on the next ballot without needing any votes from Democrats.

Corin Cates-Carney One of the possible changes I didn't hear you mention is anything about abortion access. Abortion remains legal here, but many other states have voted to ban it since the federal protections were removed with the striking down of Roe v Wade. The state GOP and Governor Greg Gianforte have all said they're anti-abortion. Why wouldn't we be seeing them try to enact that kind of effort through constitutional change?

Arren Kimbel-Sannit It's a really good question. This is the thing that Democrats were warning of the most during the campaign season, that specifically, Republicans were going to come after the right to abortion, which is legal in Montana because of the state's broad privacy provisions in the Constitution. As to why, I mean, I think it just, I can only speculate, but I think it comes down to the fact that these amendments require passing a high vote threshold in the Legislature. As I said, you need 100 votes. And Democrats certainly aren't going to join on to something like that. And abortion, while I think generally most Republicans in the Legislature agree that there should be some restrictions, it's not necessarily a cut and dry issue in the caucus. There's sort of some nuance and in their beliefs on the issue. And getting to 100 votes, I think, maybe just would have been really difficult. In my conversations with leadership, they were looking to bring amendments forth that they think they can get the votes for.

Democratic lawmakers walked out of committee in protest on Tuesday during debate over proposed restrictions on abortion access.

Corin Cates-Carney If these legislative proposals do win the 100 votes needed to pass the Legislature, the public will still have their say on the ballot. So depending on what happens this legislative session, an issue to track during the 2024 election campaign.

One of the other big issues facing the state heading into this session was the number of Montanans struggling to find affordable housing. Eric, now that lawmakers are about two thirds of the way through their work. What kind of housing policy does it look like they may pass?

Eric Dietrich There's wide bipartisan support in the Capitol for the idea that housing affordability is something that the Legislature needs to take urgent action on this year. Governor Greg Gianforte set up a housing taskforce last year. The idea being that would kind of tee up potential policy proposal that could be debated in the Legislature this year. And out of that conversation and others, we're seeing two broad categories of bills advance. First, there are bills that really try to take a market approach to the housing issue, essentially because they try to make it easier to build new homes, are telling city and county governments that they have to ease up on land use restrictions. Like, the Legislature is considering bills that would tell cities they have to let people build on smaller home lots or make it easier to build above-garage apartments, that sort of thing.

Corin Cates-Carney Okay, so what kind of other bills are you watching on the affordable housing front?

Eric Dietrich The other idea is basically to take public dollars and use them to subsidize housing to make it cheaper for people that can't afford the current market rates. You usually do that by offering, you know, tax credits to developers, or loans, and you give a subsidy to somebody who wants to build housing. In exchange, you say, 'Hey, you got to rent this out at a price that's affordable to people.'

Corin Cates-Carney And you mentioned that the governor had set up a task force on this. Where is he at on these bills and policies?

Eric Dietrich So we're hearing a lot from the governor about housing supply measures. He's very much using his pulpit to try to get those through the Legislature. There are four or five different bills in the works, and he's been naming them explicitly at press conferences and saying, 'I like these. This should pass. Get them to my desk.'.

Here he is speaking at a press conference last week.

"We have a housing shortage. The demand is outstripping supply. Our focus is on increasing supply," Gianforte said.

Corin Cates-Carney So there's the supply and demand approach. What about subsidies? How is that approach being taken up by the Legislature?

Eric Dietrich So there's a lot of interest in that approach from Democrats who, of course, are ideologically inclined to try to solve problems by using public resources. And also some Republicans on board with that, too. The governor, though, seems to be a little bit more skeptical of that approach. Here's what he said last week.

"Given the magnitude of the problem, there is not enough money in the state budget to subsidize housing in a way that would be meaningful across the entire state."

Eric Dietrich It's worth noting he's correct that housing subsidies are quite expensive. The projects that are currently being done to the Montana Board of Housing, you look at the per unit cost on those and it's approaching $200,000 per unit. And so you take that and multiply it by the tens of thousands of cheap rentals the state really needs. And you're talking billions upon billions of dollars and there isn't that much money in the state coffers. That's not going to stop Democrats and Republicans from potentially sending the governor measures that would spend state dollars to address a portion of that need. It's unclear if he's going to sign those. That's one of the things we'll be watching, is what happens to those spending subsidy side bills as they head to the governor's desk, if they get there.

Corin Cates-Carney Turning now to some of the climate related action in the statehouse. Amanda, you've been following a package of bills that would essentially tell local governments like cities and counties what they can and can't do to direct energy and climate policies. What are the specifics?

Amanda Eggert There are three bills here that seek to expand the section of Montana law that deals with what are called "powers denied." These are regulations that are explicitly denied to cities and counties. One is Senate Bill 208. It would prohibit a local government from restricting the connection or reconnection of utility lines for things like natural gas. Senate Bill 228 does something similar with local governments, but it's banning a local government from preventing the use or transport of petroleum fuels and other fuel sources - we're talking gasoline, diesel, natural gas. And then finally, there's House Bill 341, and that would prevent local government from requiring solar panels, solar-ready wiring or electric vehicle charging wiring in new construction.

Corin Cates-Carney What do local governments who would be regulated in this sense by these policies think of this?

Amanda Eggert Bozeman and Missoula both had city staffers testify in opposition to some of these bills. They say that their residents have expressed interest in their local governments directing energy policies at the local level and that they should have the authority to do that.

Corin Cates-Carney And what would be the argument, that sounds like Republicans are making, that the state should supersede that?

Amanda Eggert Republicans largely frame this as an energy choice issue. They say consumers should be able to use the kinds of fuel that they want. And they also say that if you're building a new home, you shouldn't have an additional expense associated with wiring for solar panels or wiring to accommodate an electric vehicle charging station that you may not have any interest in using.

Corin Cates-Carney Given that Republicans are framing this as an energy choice issue, is this something we've seen done in other states?

Amanda Eggert Yes. So it's worked both ways. There are cities that have banned the use of natural gas in, for instance, new residential construction. That would be like Seattle or Berkeley. But there are also states that have said local governments, you cannot do this. And they've passed preemption laws that would prevent a local government from doing something like that. So far, at least 20 states have passed these preemption laws, like the ones that Senator Small is seeking to pass this session. And there are a couple of states that are currently considering doing something like that, including Colorado.

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Corin Cates-Carney So let's bring Kayla in here to turn to some other bills that could affect energy and climate legislation. Lawmakers are considering laws that collect fees from electric vehicles. This is coming after the Biden administration has incentivised the buildout of electric vehicle infrastructure. Why do lawmakers say this is necessary?

Kayla Desroches The idea is that traditionally fuel cars, they go to gas stations, they fill up their cars, and they're paying into a fund that maintains highways and roads, and so should electric vehicles. So they're doing this a couple of ways. Republican Representative Denley Loge of St. Regis is sponsoring bills that would charge electric vehicles belonging to residents through a registration fee and then catch out of state electric vehicles through a tax on charging stations.

Corin Cates-Carney What do we know about how big the electric vehicle industry is in Montana and how many of these cars might not be chipping into this pool that other gas powered cars do tap into?

Kayla Desroches So right now, it's pretty small, according to the Montana Department of Transportation. As of 2022, there are nearly 3,000 electric vehicles in the state, but it's expected to grow. Lawmakers say that now is the time to establish an electric vehicle fee before electric vehicles become more widespread nationwide. And Montana is a big tourism state, so they don't want to miss out on the revenue of cars passing through.

Corin Cates-Carney And this idea has been rejected before. Last session, Governor Greg Gianforte vetoed a similar bill that would have charged registration fees for electric vehicles. What's different about it this time?

Kayla Desroches In his veto letter in 2021, Gianforte said that fees were too high, especially in comparison to other states, and that could discourage electric vehicle purchases in Montana and make it noncompetitive. So 2023's bill is similar except that the legislation includes lower fees. And for light vehicles that's the difference of about $65. And that bill has passed the Legislature and it's headed next to the governor. We'll see if that difference is enough to do the trick to get the governor's signature.

Corin Cates-Carney Kayla, Amanda, Eric, Arren. Thank you all for coming on the show this week.

Amanda Eggert Thanks for this.

Arren Kimbel-Sannit Thanks, everybody.

Corin Cates-Carney Before we go this week, we're watching a procedural deadline for budget bills and constitutional amendments. And we're waiting to see if the governor will sign a bill that would ban gender affirming care for transgender minors. This has been The session. A look at the policy and politics inside the Montana statehouse. See you next week.

This has been The Session, a preview of the policy and politics inside the Montana State House. The Session is produced by Montana Free Press, Montana Public Radio and Yellowstone Public Radio. Join us next week for a new episode and subscribe wherever you get your podcasts.

This week, we’re tackling more of a “big where” than a why. A listener wants to know, where does our recycling go in Montana?

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