Gianforte asks courts to help keep the public out of his business

September 8, 2022 4:01 am

Gov. Greg Gianforte addresses fire and land managers on May 2, 2022 (Screenshot of briefing live stream/Arren Kimbel-Sannit)

“Let me tell you about the very rich. They are different from you and me. … Even when they enter deep into our world or sink below us, they still think that they are better than we are. They are different.” -F. Scott Fitzgerald

Montana Gov. Greg Gianforte doesn’t just think he’s better than we are.

He insists upon it.

In a recent court filing defending his decision not to release a single piece of paper, Montana’s governor asserts not only that he is different and better than us common folk, but that he alone is different among mortals in Montana. And maybe most insultingly, he tries to co-opt the state’s constitution into conferring that power upon him.

When business leaders enter politics, as Gianforte did, they often paint a pretty word picture as they talk about running government more like a business. It’s a popular trope, and it would seem to make a certain degree of sense unless you think about it too deeply. And yet that overly simplistic approach to governance demonstrates how little most of them understand the business of government – that profit-and-loss statements don’t translate easily when it comes to educating a child or helping to find services for struggling families, both of which maybe inefficient, uncertain and cash-intensive.

However, business leaders like Gianforte often struggle mightily, and think differently when it comes to the level of scrutiny they should have to endure from the likes of a curious or even adversarial public. They recoil at the idea that the public should be able to see what they’re doing and how they’re doing it, features that don’t often exist in private business.

Transparency, compromise and accountability – hallmarks of good government and the very checks put in place by our founding fathers and mothers – are to rich, successful businessman like Gianforte, burdensome, meddlesome and insulting. After all, what right should we, the public, who have tasted such little entrepreneurial success when compared to him, have to question someone as accomplished as him?

And that’s where the constitution comes in.

The state’s constitution says that the public has two fundamental rights of observation and participation – including the right to see public documents and the right to participate or observe in the decision-making process.

Apparently, Gianforte doesn’t think much of those because he’s trying to block both.

When he took office, he created a tracking form that monitored bills as they wound their way through the legislative process. This form, apparently, included comments from administration and department officials that Gianforte used to help decide whether to sign the measures into law.

We can’t say much more beyond that because we don’t know. A public documents request, filed shortly after the conclusion of the 2021 Legislative session, was denied. Gianforte’s office said every single one of those forms – and we’re not sure how many there are – are, quite frankly, none of the public’s damn business.

Realizing that Montana’s right-to-know provisions are among the strongest in the nation and that they have also been well established by courts for decades, Gianforte does exactly what he and other Republicans so often repudiate: He invites the court to recognize new laws that don’t exist, namely recognizing “executive privilege” – a concept that even his own attorneys admit doesn’t exist in current state law.

“Because the executive communications privilege and deliberative process privilege also have existed under Montana’s common law – and are necessary for integral governmental and public purposes – the court can (and should) recognize and apply those privileges now,” Gianforte’s lawyer said in court briefings.

In other words, he invites the judges to be activists.

Yet, those statements are a twisted version of half truths. The notion of executive privilege is not recognized as such exactly because of the strong public right to know. And what executive privilege did exist in common law is a vestige of the state’s weak laws that were replaced by the 1972 Constitution, not an extension of it.

Any court should be given pause when an executive like the governor asks so clearly to be given additional privileges that rob the public of transparency or accountability. Our constitution specifically allows the public the express right to see how decisions are made; it requires our leaders to provide the documentation and access to see how and why decisions were made.

This right to know that Gianforte wants the courts to eliminate by finding words in law that are simply not there is even more essential today because Gianforte remains walled off and inaccessible to the press and most of the public, seeming to only appear at events where the lines are carefully scripted and the people appropriately adoring.

Gianforte has continued to refuse routine press conferences where the hard questions can be asked. He has refused interviews and his staff almost reflexively decline to comment. This isn’t the press whining about access, it’s instead a real-life example of the near impossibility of trying wrangle answers about how his administration works and what he thinks. One of the few ways the public knows what Gianforte is thinking is by the very documents his office is producing.

But now, Gianforte wants courts to close that trickle of information, too, because he needs a means where he can gather “frank” opinions “in confidence.”

Seems to me, Gianforte’s problem isn’t with too much information, it’s that not enough gets to the public. Funny how a man who has poured so much of his own fortune into running for public office would seem to want to cut the public out of it. Maybe even most shockingly: Gianforte throws himself upon the court’s mercy to allow him the privilege of silence while he deliberates about policy that will become the law for the rest of us.

F. Scott Fitzgerald was right: The rich aren’t like you and I.

Montana Constitution, Article II:

Section 9. Right to know. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.

Section 8. Right of participation. The public has the right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law.

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.