News & Updates

School Choice Wins a Major Victory in Court

School Choice Wins a Major Victory in Court

Montana now has school choice!

In a landmark decision on May 26, a Montana court ruled that tax credits for donations to scholarships to private schools are constitutional. The court struck down controversial rules barring religious schools from participating.

“This is wonderful news,” said Jeff Laszloffy, President of the Montana Family Foundation, which advocated for the tax credit program. “Parents and children across Montana have more educational opportunity thanks to this ruling. It’s better for kids, better for families and better for Montana.”

The 2015 Montana Legislature passed Senate Bill 410, which allowed Montanans to take a tax credit if they donate to a scholarship fund that helps children attend private schools.

In its rules interpreting that new law, Governor Steve Bullock’s Department of Revenue directed that religious schools be barred from participating in the program, but all other schools were eligible. Even though the new law did not appropriate state dollars, it only gave people the opportunity to reduce their taxes, the department based its decision on provisions of the Montana constitution that bar appropriations to religious organizations.

The Montana 11th Judicial District Court ruled that interpretation incorrect and permanently enjoined the department from enforcing it.

Montana courts have ruled on previous occasions that tax credits are not the same as appropriations. The court’s decision continued that tradition. The court firmly rebuked the idea that Montana’s constitution bans tax credits for donations to religious organizations.

Judge Heidi J. Ulbricht wrote in her decision, “Non-refundable tax credits simply do not involve the expenditure of money that the state has in its treasury; they concern money that is not in the treasury and not subject to expenditure. Since the plain language of Article V, Section 11(5) and Article X, Section 6(1) of the Montana constitution prohibit appropriations, not tax credits, the Department’s Rule 1 is based on an incorrect interpretation of the law. The Court concludes that the term ‘appropriation’ used in Article V, Section 11(5) and Article X, Section 6(1) does not encompass tax credits.”

“Montana now becomes the 44th state to have school choice,” said Laszloffy. “This decision puts parents and students squarely in the driver’s seat.”

A copy of the court’s ruling can be downloaded here:’-Motion-for-Summary-Judgment-and-Denying-Defendants’-Cross-Motion-for-Summary-Judgment.pdf

Time to Vote

For anyone following the results of the recent legislative session, the big takeaway from my perspective is that elections have consequences.

Montanans put Republicans in charge of the legislature and Democrats in charge of the governor’s office. And the result, predictably, was gridlock. There’s nothing wrong with that if that was the people’s intention, but it doesn’t leave any room for complaining that nothing gets done. Yes, the case can be made that there’s not much difference between Republicans and Democrats when it comes to spending. Budgets increase under both parties, they just increase faster under Democrats. But anyone who thinks that Republicans are the party of fiscal conservatism need only look at the proposed federal budget.

That said, there are true fiscal conservatives at both the state and federal level. Unfortunately, they continue to be hamstrung by liberal Republicans who join with Democrats to push for big spending. There may not be a lot of difference in spending when it comes to Republicans vs. Democrats, but when it comes to the so-called “social” issues, the differences are like night and day.

We see it in the party platforms, we see it in legislative votes, and we see it in the executive vetoes. So-called “social” issues range from abortion to euthanasia to same-sex marriage and allowing boys who think they’re girls to use the girls’ showers and locker rooms. For better or worse, it’s the social issues that drive the culture, and by extension, it’s the social issues that drive the budget.

Liberal social policy leads to weaker families; weaker families lead to higher substance abuse, lower graduation rates and higher rates of out-of-wedlock births. These, in turn, drive higher numbers of people on welfare, in government housing, on Medicaid and on food stamps, which results in higher overall spending. It’s a vicious cycle, and to make matters worse, poverty begets poverty. Children raised by a parent on welfare have a much higher chance of winding up on welfare themselves. Some of America’s inner cities are now seeing the 5th generation of a family entering into the welfare system. Why? Because values are caught, not taught, and children do what’s modeled to them.

It’s a fool’s errand to believe that we can get spending under control without addressing the social issues. As Christians, we believe God designed the families to be the perfect social safety net, and strong families lead to a strong nation. Unfortunately, America’s going in the opposite direction, and Christians share part of the blame. Statistically, those things that weaken families are as prevalent in the church as they are in the culture at large. Things like divorce, substance abuse and pornography use are running rampant in our churches from the clergy on down. We’ve also been voting the wrong set of values. In God’s economy, hunting and fishing do not trump a child’s right to life; yet, that’s how many of us vote.

Next week we’ll go to the polls to elect Montana’s next Congressman, and the choices could not be more clear. One candidate stands for life, the defunding of Planned Parenthood and fiscal conservancy. The other supports Planned Parenthood, wants firearms to be registered and has a long track record of not paying his bills. I urge you as Christians to go to the polls and vote your values because as I said before, elections have consequences.

Legislative Wrap-Up

One week ago today, the 2017 session of the Montana Legislature drew to a close. Legislators quickly left town, and staff began putting the House and Senate chambers into mothballs. Barring a special session because of a downturn in the economy, the legislature won’t return until January 2019. For us, it’s a time to celebrate. We only sleep well when the legislature is not in session. Last week, we talked about the bad bills we killed and the frustration with having our locker room privacy bill killed by four misguided Republicans. This week we’ll discuss the bills that we supported.

As I’ve said before, we operate in four main areas of social policy: life, marriage and family, religious freedom and school choice. Under the heading of life, we had four main bills, and the first three dealt with abortion. Senate Bill 282 would have banned abortion after 24 weeks, the medially accepted age of viability. A similar bill, Senate Bill 329, would have banned all abortions after 19 weeks, the age at which a fetus can feel pain. Both were good bills. Both passed both houses of the legislature, and both will most likely be vetoed by the Governor. As we said before, elections have consequences, and the consequence of having a pro-abortion governor is that pro-life bills get vetoed. The third anti-abortion bill was House Bill 595, also known as the Personhood Amendment. It had majority support in both houses, but required a supermajority vote since it seeks to amend the Constitution. In the end, it fell 12 votes short of the required 100 votes necessary to pass. The final life bill was a bill to outlaw doctor-prescribed suicide. As in previous sessions, the bill failed to pass, so the issue remains in limbo.

On the religious freedom front, the legislature passed a resolution condemning the American Bar Association’s proposed Rule 4.8(g). As you may recall, this rule if adopted by the Montana Supreme Court, would allow lawyers to face a reprimand and possible disbarment, if they speak out about policies involving sexual orientation or gender identity. Basically, it’s an attorney gag rule, designed to stop speech deemed to be politically incorrect. During a public comment period, the court received over 500 letters from citizens, attorneys, judges and legislators, and over 95% of them opposed the rule. Even a subcommittee of the Bar Association itself said the rule violated the free speech provisions of the Constitution. It seems that everywhere we turn, from Washington, D.C., to Berkeley, California, to Helena, Montana, religious freedom and free speech are under attack. The Court will decide soon whether or not to adopt this rule, and we hope they take the overwhelming public opposition into consideration.

And finally, on the school choice front, we had two bills: one to create public charter schools, the other to create education savings accounts for children with special needs. The charter school bill was hijacked by liberals and had to be killed, and the ESA bill failed to make it out of committee. The legislature seems to be waiting for the results of a pending school choice lawsuit. If the decision goes our way, and we get the right governor, school choice will come in like a flood. But all that will have to wait for the next legislative session, two years from now.

Power Corrupts

The final days of any legislative session are a lot like flying: hours of boredom, punctuated by moments of sheer terror. This session has been a little different. It’s a lot like watching paint dry, followed by moments of intense frustration.

That was the case yesterday when a small group of liberal Republicans joined all House Democrats to kill Senate Bill 368 on a tie vote, 50 voting yes and 50 voting no. You may recall Senate Bill 368 was a bill to generally revise Montana’s campaign practice laws. Its main goal was to provide accountability for what some see as an out-of-control Commissioner of Political Practices. Those who like the present setup used a small portion of the bill that would have increased donation limits as an excuse to vote no. The only problem is a federal judge last year ruled that Montana’s donation limits are so low that they violate the First Amendment to the U.S. Constitution.

Political donations have long been seen by the courts as a form of expression, or free speech, and courts have ruled that states should not be allowed to chill free speech by setting up artificially low donation limits. It would be similar to a state saying, “You can speak in favor of your favorite political candidate, but only on Tuesdays from 1:00 to 1:15.”  In this case, the court told the legislature to fix the problem, and the legislature said, “No.”

The main part of the bill, however, dealt with something much more serious, the issue of the commissioner amassing so much power that he acts as judge, jury and executioner. Not my term, that was a description used by a federal judge in a trial involving the commissioner in 2016. Currently, the commissioner can file a complaint, investigate the complaint, issue a ruling and issue a fine: judge, jury and executioner. Senate Bill 368 would have brought accountability in two ways: First, it would have given someone charged with a violation the chance to review a preliminary finding and decide whether or not to appeal before a final ruling was issued.  The case could either be appealed to District Court, which is currently the law, or it could go to mediation. Either way, a third party would be looking over the commissioner’s shoulder. Another benefit of the bill would be the creation of a page on the commissioner’s website that would track the ongoing expenses related to cases currently under investigation.

This one hits home for us. Two years ago, the commissioner investigated the Montana Family Foundation for election-related activities. No one had filed a complaint. He simply did it because we were a conservative organization involved in elections. His staff went clear back to 2012 and found a report that we had filed three days late. Nothing in the report was questioned. It was just the fact that the report was late. He then fined us $500. Did that fine cover the hours spent by staff and attorneys going back years digging through reports, looking for minuscule violations, when there wasn’t even a complaint filed? I seriously doubt it, and Senate Bill 368 would shine a bright light on that kind of waste of taxpayer dollars.

When it comes to government, accountability is a hard pill to swallow. But as Lord Acton once said, “Power tends to corrupt, and absolute power corrupts absolutely.” It’s as predictable as the laws of physics, and it’s been a part of politics for as long as politicians have served in public office.

Finally…A Good Choice

With few exceptions, the Montana House and Senate are virtually the same. Both are legislative in nature, both follow essentially the same procedures, and both are run by part-time legislators who have real jobs, for the most part, outside of government.

They do, however, have two major differences. The House, at least on paper, controls the budget. All spending bills originate in the lower chamber. The Senate, on the other hand, is in charge of the confirmation process. Montana is run by a myriad of agencies and boards, whose members, to a large extent, are appointed. Typically, a nominating panel reviews potential candidates and forwards a list of potential nominees to the Governor, who then decides who the final nominee will be. That name is then forwarded to the Senate where a confirmation resolution is drafted and heard by the appropriate committee. If the committee votes to approve the nominee, then the resolution goes to the full Senate for a vote. If it passes the Senate, then the nominee is deemed to have been confirmed and begins their term of service.

It’s a fairly simple process, and the vast majority of nominees are confirmed without any problem. There’s sort of an unwritten understanding that the Governor won the election, and barring extraordinary circumstances, should be allowed to have his choices confirmed. The exception, of course, has been the nomination for the office of the Commissioner of Political Practices. The process worked well for over 30 years until Governors Schweitzer and Bullock began nominating highly controversial political operatives. The process suffered, as did the reputation of the office as a neutral arbiter in the rough and tumble world of partisan politics.

But that all changed yesterday when Governor Bullock nominated Jeff Mangan to fill the seat being vacated by Jonathan Motl.  Mangan, a former Democrat legislator from Great Falls, is seen by both Republicans and Democrats as a good choice.

On a personal note, I served with Jeff back in the early 2000s and found him to be a man of good character with a solid reputation. In my opinion, he’s exactly what that office needed. Yes, he’s a Democrat, but that doesn’t mean that he can’t be impartial. Another thing that makes Jeff a good nominee is that he understands the process from the inside out. As a former elected official, he knows what it’s like to run a campaign, and he’s unlikely to put up with the petty antics that have dogged the process for so long. If he’s confirmed, and all indications are that he will be, he’ll be the first Commissioner in over a decade to be confirmed for a full six-year term. Commissioner Motl was appointed in 2013 to finish out a six-year term that began in 2010. Prior to that, three other commissioners were either never confirmed, or left office before they could be rejected. One of them even resigned when the office staff accused him of doing legal work for his private practice on State time.

With the legislature quickly approaching adjournment, Mangan’s confirmation hearing will be fast-tracked and could happen as early as today. We applaud Governor Bullock for making this appointment. In our opinion, Jeff Mangan is the right man at the right time.