The grand staircase at the Montana Capitol (Photo by Eric Seidle/ For the Daily Montanan).
Policies regarding student political organizing and judicial recusals that lawmakers quietly added to a bill in the waning hours of the 2021 legislative session violate state constitutional provisions restricting legislation to a single subject, a Montana district court judge ruled Thursday.
Senate Bill 319, sponsored by Sen. Greg Hertz, R-Polson, began its life as a measure to allow for joint political fundraising committees, and made its way through the vast majority of the legislative session as such. But as sine die drew near, legislative leaders referred the bill to a free conference committee where in a matter of minutes, lawmakers approved two additional sections with no opportunity for public comment: one requiring judges to recuse themselves in cases where an attorney donated more than $90 to their election campaigns (“one-half of the maximum amount allowable” in law) in the last six years, among other restrictions, and another preventing political committees from engaging in turnout efforts “inside a residence hall, dining facility, or athletic facility operated by a public postsecondary institution.”
Lewis and Clark County District Court Judge Mike Menahan invalidated these provisions on Thursday, writing in an order that their additions went beyond the stated subject and title of the bill in violation of the state constitution.
“Prior to its final amendment during a free conference committee, SB319’s entire purpose was to revise campaign finance laws regarding the establishment … of joint fundraising committees,” Menahan’s ruling reads. “By amending the bill to include provisions regarding political activities on college campuses and judicial recusal requirements, the Legislature altered the original purpose of the bill.”
Forward Montana, a progressive political advocacy group, Lewis and Clark County Attorney Leo Gallagher and and several attorney organizations filed suit challenging SB319 in June, one of multiple lawsuits against the bill that have unfolded since the end of session. The plaintiffs said the new provisions would both illegally limit the political work of Forward Montana and cause possibly hundreds of judicial recusals.
But what makes the suit distinct from the other challenges to the bill is its focus on procedure: The original complaint calls out legislative “hijacking” and “contortions” to inject new provisions into a bill where for weeks they never existed, arguing that it violates a section in Article V of the state constitution that says a bill “shall contain only one subject, clearly expressed in its title.”
“This decision is a message that the Constitution comes first, and the legislature just doesn’t get to ignore the rules,” Raph Graybill, a Great Falls attorney representing the plaintiffs, told the Daily Montanan. “It really went to the way the legislature passed laws, and the heart of the problem was the public was completely excluded from the process of these pretty stringent provisions becoming the law of the land.”
The mechanism through which the changes in question were made is the free conference committee. On paper, it’s a venue for reconciliation between different versions of the same bill, much like a regular conference committee. But unlike in a standard conference committee, which limits the scope of discussion to existing points of debate between the two chambers, lawmakers appointed to a free conference committee can introduce new amendments, so long as they fit within the title of the bill. In both cases, meetings of these committees are open to the public but not for public comment — in theory, the bill in question will have already been the subject of reams of public comment throughout the legislative process.
But while not all changes made in free conference committees provoke controversy, the flexibility to propose new amendments can allow for dramatic revisions to a bill, sometimes with little public awareness. Bills were sent to free conference committees 23 times in 2021, the Montana Free Press reported in April, more often than any session in the last decade.
Changes introduced in free conference committees must fit under the title of the bill, though titles are often broad. The state Department of Justice, representing defendant Gov. Greg Gianforte, has argued that SB319’s title — “an act generally revising campaign finance laws” — encompasses all of its sections, including those added in the free conference committee.
“Furthermore, legislating necessarily involves compromise and amendments, and the Constitution vests the legislative process solely in the Legislature,” the state argued in an August ruling.
Menahan, however, wasn’t convinced. He wrote Thursday that the section concerning college political organizing regulated certain campaign activities, not campaign spending or fundraising, and that the judicial recusal section, though connected to campaign donations, does not actually change Montana campaign finance law.
“It does not place limits on campaign contributions or alter campaign reporting requirements,” he ruled. “Accordingly, the court concludes SB319 contains two subjects not related to campaign finance.”
Menahan’s ruling is restricted to the two provisions challenged in the complaint, so the rest of SB319 currently stands as written.
Graybill said he believes an appeal of the ruling to the state Supreme Court is likely, though one hadn’t been filed by Friday afternoon. Spokespeople for the state Department of Justice did not return a request for comment in time for publication.
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