Bill would give GOP majority advantage in objecting to administrative rules

Would let House Speaker and Senate President break ties in interim

By: - February 4, 2021 2:44 pm

The Montana state capitol in Helena, Montana. (Photo by Eric Seidle for the Daily Montanan.)

A proposal to give legislative majority leadership a tie-breaking vote on interim committees seeking to block administrative rules is advancing through the House, one of several bills this session that would change the partisan makeup of the committees that meet between the Legislature’s biennial meetings.

The House Legislative Administration Committee met Thursday to hear Senate Bill 82, which would codify in statute a provision that lawmakers adopted in their Joint Rules in January giving the House Speaker and Senate President ex officio votes on interim committees in case of a tie vote on a motion objecting to an administrative rule.

“This is about reining in the power of the executive branch,” said the bill’s sponsor, Sen. Steve Fitzpatrick, R-Great Falls. “We need to start blocking rules.”

In the long stretches of time that elapse between Montana’s relatively brief legislative sessions, lawmakers meet in interim committees that are generally evenly bipartisan, making ties much more likely than in the body’s standing committees, which are roughly weighted to match the overall partisanship of the Legislature.

These committees are tasked with studying and recommending legislation for the upcoming session. But they can also respond to rules from the executive branch — which are designed to interpret and effectuate legislative intent — a prerogative that has created a variety of legal battles over jurisdiction and the balance of power in recent years.

In 2019, under the administration of Democratic Gov. Steve Bullock, the Department of Health and Human Services issued a rule banning the sale of flavored vaping products; in the prior legislative session, a proposal to do the same had failed. The Economic Affairs interim committee objected to the rule, but the executive branch argued it was out of its jurisdiction to do so. The Department eventually backed off the rule.

Four years before, the Legislature created a tax credit for private school scholarships. But the Department of Revenue blocked funding from going to religious schools, which Republican lawmakers said contravened the intent of the bill. A legal showdown resulted in a U.S. Supreme Court ruling against the department’s prohibition.

“I don’t think we would be here if the prior administration wasn’t abusing the rulemaking process,” Fitzpatrick said in explaining the measure.

In standing committees or on the House floor, a tie-vote kills a bill. But when lawmakers are considering an administrative rule, they are technically voting on an objection to that rule — so, a tie-vote means the objection fails and the rule goes through.

This would be changed under the proposal, which allows the Speaker and Senate President to come in and break that tie. Conceivably, Fitzpatrick acknowledged, they could vote different ways, again creating a tie, though he said he’d be open to a legislative rule ensuring they vote the same way when breaking a tie.

In January, a party-line vote added a version of Fitzpatrick’s proposal to the Legislature’s joint operating rules. The bill would make that amendment law, which Fitzpatrick said is necessary because he believes the court gives precedence to statute over the rules that lawmakers adopt for themselves.

While these changes seem arcane, they would, as Rep. Ed Stafman, D-Bozeman, pointed out in committee Thursday, “shift a bipartisan project to the majority party in every case” of a tie.

It’s one of several ways that Republican lawmakers are seeking to bolster their power in the interim. Another is Sen. Keith Regier’s Senate Bill 122, which would skew interim committees in the same fashion as standing committees. That bill still awaits passage in the Senate.

Fitzpatrick’s SB82 passed on a partisan vote in the Senate in January.

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Arren Kimbel-Sannit
Arren Kimbel-Sannit

Arren Kimbel-Sannit is an Arizona-bred journalist who has covered politics, policy and power building at every level of government. Before getting his dose of northern exposure, Arren worked as a reporter in all manner of Arizona newsrooms, for the Dallas Morning News and for POLITICO in Washington, D.C. He has a special interest in how land-use decisions affect working-class people, which he displayed through reporting on the epidemic of pedestrian deaths in the U.S. for the Los Angeles Times and PBS Newshour. He's also covered housing, agriculture, the Trump presidency and more.