News & Updates

Who Makes the Rules?

In my humble opinion, one of the practices most damaging to our republic has been the incredible expansion of government through the use of rule-making authority. It basically transfers power from elected officials who are accountable to the people, to a group of nameless, faceless bureaucrats who oftentimes create rules that expand the power of the bureaucracy, to the detriment of the people they were hired to serve.

Rule-making authority begins when a legislative body passes a bill that’s long on policy and short on details. They basically tell the agency where they want to go and let the agency figure out how to get there. The problem is these rules have the force of law and the rules propagated to administer a law can be hundreds, or even thousands, of times more voluminous than the law itself. Perfect examples are the Federal Clean Air and Clean Water Acts. The original acts, themselves, are fairly compact, but the regulations promulgated by the Environmental Protection Agency require an army of regulators to enforce, and the cost to the economy can be immeasurable. And it doesn’t only happen at the Federal level; we have our own examples right here in Montana.

During the 2015 legislative session, we talked about Senate Bill 289, a bill to generally revise Montana campaign finance laws. We fought that bill and pointed out that huge portions of it were patently unconstitutional. Parts of the law were challenged, and those cases are still on appeal. But as we pointed out in testimony, even more worrisome was the amount of rule-making authority granted to the Commissioner of Political Practices.

As pointed out by one federal judge, it basically allowed the Commissioner to deem himself judge, jury and executioner. As predicted, the Commissioner granted himself so much power that it raised eyebrows in the legislature itself, and in this session one of those legislators who voted for the original bill has introduced another bill to claw back some of the power that the original bill gave away.

This afternoon the House will debate Senate Bill 368, which, ironically, has the same title as the original bill, “Generally Revised Campaign Practice Laws.” Unlike the original bill, however, this bill grants no additional rule-making authority; in fact, it describes in excruciating detail, how the Commissioner shall conduct his investigations, and how his preliminary findings are now able to be appealed before they become final. That was a bridge too far. Current Commissioner Jonathan Motl spoke against the bill, arguing that it would affect his independent authority to oversee campaign finance and reporting laws; in short, it takes away his ability to act as judge, jury and executioner, which is exactly what it’s designed to do.

C.B. Pierson, a political activist who has worked closely with Motl in the past, said that the bill would roll back gains made in the 2015 law, which is also exactly what it’s designed to do . Legislators can, and do, make mistakes, and giving the Commissioner of Political Practices virtually unlimited rule-making authority was a big one. Senate Bill 368 is their chance to undo some of that damage. The bill passed the Senate 48 to 2, and we hope it passes the House by large margins, as well.

Political Football

When it comes to naming a new Commissioner of Political Practices, the 2017 Legislative Session appears to be déjà vu all over again.

Years ago, the nominating and confirmation process for Montana’s top political cop used to be fairly straightforward. All the players understood that the nominee needed to be recognized by BOTH political parties as a person of solid character who would act in an unbiased manner. It just made sense. Elections, by their very nature, are highly controversial, so everyone must feel that they’re being treated as fairly as possible.

The system worked well for about 30 years. Then, in 2011, Governor Brian Schweitzer appointed a well-known and highly-partisan political operative. That person was never confirmed by the Montana Senate, and neither were the next two. The credibility of the agency suffered, and campaign practice complaints skyrocketed. In June, 2013, current Commissioner Jonathan Motl was appointed and then later confirmed to finish out the six-year term that began in January, 2011. Motl was also a highly controversial political operative, but was narrowly confirmed when a small group of liberal Republicans cast their votes with the Democrats. Motl, who has been highly controversial since Day One, was supposed to serve from June, 2013 until January of 2017. Democrats filed a lawsuit late last year to have his term extended from 2017 to 2019. The Montana Supreme Court rejected the request, but said that he could stay in office until a successor was named.

That brings us to the current situation that feels like déjà vu. Over the past decade, both Governor Schweitzer and Bullock have waited until the legislature leaves town to appoint the commissioner of their choice. Since the Senate is not in session, that person serves until the legislature reconvenes, and then the game starts all over again. Remember, of the past four commissioners, only one was actually confirmed.

This session, after weeks of political wrangling, Republicans and Democrats finally settled on two potential nominees that are acceptable to both parties. So what’s the holdup? Both names were submitted to the governor some time ago, and now the legislature stands on the cusp of adjournment, possibly by the end of this week. The legislature is on Easter break until tomorrow afternoon, so if they did receive a nominee by Tuesday, and if they did adjourn by Saturday, that would give them four days to hold hearings and debate the nominee on the floor. Not impossible, but why the drama? Why must this office remain so highly politicized? Why can’t we go back to pre-2011 when the process ran more smoothly? If a nominee is not confirmed by the time the session ends, Jonathan Motl will remain in office past his term and we’ll be back to having an extremely controversial, and at that point, unconfirmed, Commissioner of Political Practices.

Governor Bullock says he’s still considering both candidates, but in our opinion, he’s had more than enough time. Both candidates are extremely well-qualified; both candidates are acceptable to both political parties; the legislature is set to adjourn; and if they leave town without a confirmation, than Jonathan Motl remains in office. It’s time to stop treating this office like a political football; the people deserve better, and the office needs its credibility restored.

When Confirmations Go Nuclear

When it comes to the courts, there’s an old saying, “The wheels of justice turn slowly.” So what happens when the slow-turning courts interface with a dysfunctional Congress? It appears the wheels just about grind to a halt.

On February 13th, 2016, United States Supreme Court Justice Antonin Scalia died on a private ranch in Texas. His replacement, Judge Neil Gorsuch, wasn’t nominated until January 31st, 2017, nearly one year later. Now, a full three months after that, we’re just getting around to a vote by the Senate Judiciary Committee and a probable referral to the full Senate later today. That sets up a floor debate and a possibility that Judge Gorsuch, if confirmed, will join the Court before the end of April, a full 14 months after Justice Scalia’s passing.

That said, everything that has happened to date was easy compared to the heavy lift coming later this week. That’s when Senate Republicans will have to deal with an expected Democrat filibuster. Gone are the days when a former ACLU chief legal counsel, named Ruth Bader Ginsburg could be confirmed by a roll call vote of 96 to 3. Gone are the days when Republicans and Democrats gave deference to a President and let him have HIS choice of a nominee. The Court is now as active in making social policy as Congress, and for that reason, and that reason alone, the confirmation process has become highly partisan. In the eyes of many, the Court acts as a super-legislature, awarding by judicial decree that which is not achievable by political consensus.

As for the filibuster, it takes a super-majority of 60 votes to override, and the Republicans only have 52. They need eight Democrats to join them, and at this point, they’ve only gotten commitments from three.  Montana Senator Jon Tester has promised to vote against the Gorsuch nomination for a whole host of reasons that basically boil down to the fact that he’s not liberal enough. And Senator Tester is backed by former Montana Supreme Court Justice Jim Nelson, himself a far-left liberal who, as the poster child of judicial activism, regularly used his seat on the Court to promote a liberal agenda.

As I’ve said before, elections have consequences, and Senator Tester must realize that Donald Trump beat Hillary Clinton in Montana by over 100,000 votes, and barring issues of character, should be allowed to present a nominee who reflects his political philosophy. President Obama got Justices Kagan and Sotomayor, both of whom have proven themselves to be members of the far left. And to top it all off, this should be one of the easiest votes to confirm that any senator will ever take. The vote will not affect the balance of power on the Court; Trump is simply asking to replace a conservative Scalia with a conservative Gorsuch. If the Democrats continue to threaten a filibuster on this easy confirmation, then Senate Majority Leader Mitch McConnell may be forced to exercise the so-called nuclear option by changing the rules to require a simple majority vote to override a veto.

It’s sad that everything that Congress touches must now be tainted by partisan politics, but it’s a reflection on who we are as a people. We encourage Senator Tester to show courage and leadership, to rise above partisan politics and to quickly confirm Judge Gorsuch, so the Senate can focus on more pressing issues, such as the national debt.

Political Reality

Politics at its core is a dog-eat-dog, winner-take-all game, where elections have tangible, far-reaching and serious consequences. And those consequences become more apparent each time we reach the end of a legislative session.

In Montana, Republicans control the House and Senate by comfortable margins. The Executive Branch is controlled by Democrat Governor Steve Bullock, and at the federal level, Republicans control Congress and the Presidency. Each branch has real powers, and those powers were on display this week leading some to cheer and others to cry, “foul!”

Yesterday, the Montana House killed the proposed 30 million dollar increase in the state’s tobacco tax. The Governor requested the tax increase, in part, to fund an increase in wages for caregivers of elderly and disabled Medicaid patients. Republicans shored up the hole in the budget, some say by magically increasing the state’s revenue estimate. It may be a gimmick, and it may not. Only time will tell. But it led to wailing and gnashing of teeth by Democrats on the House Tax Committee. What they see as unfair, the Republicans see as holding true to campaign promises to hold the line on taxes and spending. Republicans claim they’re being responsible in a tight fiscal year. Democrats say Republicans are ignoring people in need. So who is right? In truth, it doesn’t matter. The voters will sort that out in the next election cycle. For now, we’re reminded that politics is a winner-take-all-game, and Republicans are in the driver’s seat.

But that’s not the end of the story. Remember, Democrats control the Governor’s office, and yesterday the Governor vetoed the first of many bills that run contrary to his political philosophy. In this case, it was Senate Bill 97, which would ban the application of foreign law in our state courts when that law violates a fundamental right guaranteed by the Montana or United States Constitution. Opponents call it the “Sharia Law Bill,” and said it was a direct attack on Muslims. Governor Bullock said the law would upend our legal system and debase what we stand for as Montanans and Americans. Those in favor of the bill said it’s absolutely necessary to stop the encroachment of foreign law into our legal system by liberal judges with a misplaced allegiance.

So what’s the truth? It doesn’t matter. The voters will sort that out in the next election cycle. See a pattern? For now, Democrats control the Governor’s office, and Governor Bullock has indicated that more vetoes are on the way. Remember, this is a winner-take-all game.

Which brings us to today’s upcoming vote in the U.S. Senate to confirm Neil Gorsuch to replace Supreme Court Justice Antonin Scalia. After failing to get enough Democrats to vote to end a Democrat-led filibuster, the Republican majority voted to exercise the so-called “nuclear” option. They used their majority to strip the rule that allows filibusters on Supreme Court nominees, which practically guarantees that Gorsuch will join the Court. Democrats howled in protest, saying this will fundamentally change the way the Senate has operated for over a hundred years. Are they right? It doesn’t matter. You get the point. Politics is a winner-take-all game. In any political setting, rules are in place to protect the minority, but in the end, the majority rules. As I’ve said before, elections have consequences, and it all starts in the voting booth.

Bills Still in Play

As the days grow longer, thoughts turn to the end of the session. It’s harder to stay indoors, and participants find their minds wandering during meetings. We’re not talking about the end of a college semester; we’re talking about the fast-approaching end of the 2017 legislative session.

When legislators first arrived on January 2nd, the weather outside was dark, cold and snowy. Sitting in meetings drinking coffee and watching the snow fall was easy. Now everything’s changed. It’s April. The snow’s gone. The grass is greening up, and the days are a lot longer. To make matters worse, many legislators find themselves with nothing to do. Many committees have finished their work, the number of bills is shrinking fast, and legislators find themselves longing for home. No one knows when the final day will be, but the talk of adjournment before the Easter break on April 14th is becoming more prevalent. If they manage to get out of here that early, it would be one for the record books, but stranger things have happened.

We’re down to just a handful of bills still in play. At this point, we’re still pushing the Pain Capable Unborn Child Protection Act, the ban on abortions of viable fetuses, and the Personhood Amendment. The Charter School Bill is on life support, and we’re working hard to kill a last-minute bill that would do away with marriage licenses.

The ban on aborting unborn children once they reach the point where they can feel pain was heard yesterday in House Judiciary. It passed out of the Senate on a party-line vote, and we’re expecting a similar outcome in the House. Hopefully, it will hit the House floor Friday or Saturday. The viable fetus bill passed second reading in the House yesterday after a long and contentious floor debate. The vote was 60 to 40 with all Republicans voting “yes,” joined by Democrat Jonathan Windy Boy of Box Elder.

Legislators have a habit of talking contentious bills to death as a means of posturing and scoring brownie points with certain advocacy groups, and that was the case with this bill. House rules allow for cloture after 30 minutes to cut off debate and keep the process moving forward. The first motion for cloture came at about 35 minutes and failed by three votes. Debate continued for another 10 minutes until the motion for cloture was again made, and this time, passed by two votes. The bill was amended by the House, so it heads back to the Senate, and possibly, to a conference committee before it heads to the Governor.

The Personhood Amendment is scheduled for a hearing in the Senate Judiciary Committee tomorrow morning at 9:00 a.m. It passed the House with 59 votes, so as a Constitutional Amendment, it needs 41 votes in the Senate. Republicans control the Senate by 32 votes, so if every Republican votes “yes,” it still requires 9 Democrats to jump on board.

And finally, we were at the Capitol ‘til nearly 6:00 p.m. yesterday arguing against Senate Bill 375, the bill to do away with marriage licenses. As I told the committee, this bill is too much, too fast and on too important an issue to be decided in the closing days of a session. We’re worried about unintended consequences that might hurt marriage, so we asked the committee to vote “no” until they can study the issue. Marriage is SO important it seems like the prudent thing to do.