Republicans are pushing a suite of legislation this session that would rein in the authority under which the government can impose COVID-19 mitigation measures.
Rep. David Bedey’s HB121 and HB122, though varying in their particulars, are united under a common goal: to place more checks and balances on the extent to which policymakers can govern the behavior of their constituents in times of pandemic or other emergencies.
The former, HB121, would require city or county commissioners — or in some cases both — to vote on and approve regulations from local boards of health concerning the disposal of sewage and the control of communicable diseases, among other measures.
If passed, the bill would also give local governing bodies the ability to review and alter or rescind an order that public health officials issued in response to an emergency or disaster declaration from the governor.
Opponents of the bill — a group that includes several members of city-county health boards as well as hospital and medical industry associations — argue the bill could hamstring the ability of health experts to act nimbly and expose their decisions to local politics.
“It adds another layer of government,” said Justin Murgel, the chair of the Lewis and Clark County Board of Health. “We’re looking out for the whole public’s health. This would hinder our ability to pass rules.”
This controversy has been on full display in Bedey’s home of Ravalli County, where the county public health officer resigned in part because local elected officials were refusing to enforce the governor’s orders and public health guidelines.
HB122 has received similar pushback. While HB121 addresses the relationship between boards of health and county and city commissioners, HB122 would give the opportunity for the Legislature to convene and change or overrule declarations of emergency and disaster from the governor.
“For the legitimacy of our government, and as expressed by the proponents, it’s important for the citizens to believe that their legislature is engaged in longstanding crises as well as their governor,” Bedey, R-Hamilton, said this week.
The bill would limit the duration of an executive declaration of emergency to 30 days — previously, the state of emergency could be extended in certain circumstances — and prevent the governor from declaring an emergency for the same crisis twice. The limit on disaster declarations, however, would be extended to 45 days.
If passed, declarations of emergency or disaster would also trigger a process through which lawmakers can call themselves into a special session. In either a special or regular session, the Legislature would then have the authority to terminate, extend or otherwise limit a state of emergency or disaster, and to “approve or disapprove the continuation of any executive order, proclamation, or regulation that was enacted based on a state of emergency or disaster.”
“It protects executive prerogatives but ensures the Legislature is not sidelined,” Bedey said.
Rep. Wendy McKamey, who chairs the State Government Committee that heard the bill, said she isn’t entirely convinced of the argument the Legislature needs to reassert itself on the governor’s decision making.
“I can see why some people might think that, but I’m not sure it’s the case,” McKamey, R-Ulm, said. “The legislative body’s aim is to define the laws and put into statute good practices, and then the executive is to carry them out. I think that it’s important that we not give away our power but not take too much either.”
Dozens of state legislatures are considering legislation this year to give lawmakers the opportunity to amend or override executive declarations, according to the National Conference of State Legislatures — even states where Republicans hold trifecta majorities, as in Montana.
McKamey said she believes the intent of HB122 good, but isn’t sure about the time limit on emergency declarations.
“That’s the nugget,” she said. “This may or may not be the way to do it. It requires additional examination.”
Republican Gov. Greg Gianforte has not staked a claim publicly on the bill, though Bedey said in committee that he wouldn’t be surprised if the executive isn’t thrilled.
“Our system was built so there was a tension between the legislative branch and the governor,” he said.
Montana has been subject to a state of emergency or disaster due to the COVID-19 pandemic since March. The virus has killed more than 1,000 Montanans and afflicted tens of thousands more.
It’s under that declaration that then-Gov. Steve Bullock issued a variety of directives, mandating masks, spending COVID-19 relief funds and enacting other preventative measures across the state. Gov. Gianforte has rolled back some of the Bullock-era restrictions but kept the mask mandate in place for the time being.
Some county boards of health have implemented similar restrictions. These decisions, both at the executive and local levels, have often become the subject of controversy and pushback from constituents who believe that restrictions on businesses and mask mandates are implemented without proper democratic responsiveness — one woman testifying in support of HB121, for example, accused local health officials of being “power drunk.”
A “toxic” discourse around the role of public health officials has led to resignations across the state, notably in Flathead County, where the interim director of public health resigned and declined to return to her seat on the health board.
“It’s clear that the underlying motivation by several members of your groups is more closely aligned with ideological biases than the simple desire to do what’s best for the health of the community,” wrote Tamalee St. James Robinson, the former director, in her resignation letter last year.
This is part of the reason that HB121 has public health advocates worried; they believe the bill could present an opportunity for city and county commissioners to overrule their decisions based on politics rather than science. And even if local elected officials would likely be on the same page as the appointed health officials — something Murgel believes is the case in Lewis and Clark County — the resulting bureaucratic process could be too cumbersome.
“Some people feel it’s hindering freedom and rights, but it’s about protecting the public,” he said.
But Josh Racki, the Cascade County Attorney, a supporter of the bill, said in his testimony that he’s often heard from the county commissioners that they’re concerned about the health board’s authority.
“I’ve had commissioners themselves come to me and ask, ‘How can the board of health do this?’ he said. “I know there’s businesses failing because of these regulations.”
It was clear in the bill’s hearing that some skepticism toward county health officials persists even among lawmakers. Reps. Scot Kerns and Steven Galloway, both Republicans from Great Falls, spent part of Thursday’s meeting questioning Cascade County Commissioner Jane Weber about the health board’s purported slow response to public records requests for data explaining their decision making.
Galloway said he was “disturbed” by testimony against the bill and accused opponents of not reading the text properly for asserting that the bill would require local elected officials to approve county health board decisions — something that, as Weber pointed out, is in the plain language of the proposal.
Bedey said he’s not trying to overrule anyone, and isn’t casting doubt on the need for COVID-19 mitigation at the local level. Rather, he said, his bill would provide an opportunity for policymakers to consider “economic considerations” in addition to — or instead of — public health.
“Economic considerations need a fair hearing,” he said.
“These are hard decisions, but in some instances, elected officials might on the balance decide moderation of a public health directive is necessary to achieve other objectives.”
Both HB121 and HB122 have been heard in committee, and now await votes before they can move to the full House.