Closed for the people’s business: Montana House gallery lock-out continues; censure rare in Montana

By: and - May 2, 2023 9:45 am

The Montana State Capitol in Helena on Wednesday, April 26, 2023. (Photo by Mike Clark for the Daily Montanan)

The week after the Montana House took an historic vote on party lines to ban Rep. Zooey Zephyr from the floor, the chamber gallery remained closed to the public, and Zephyr has had to fight to work on a bench in the hall.

Members of the public can observe, in person, the work of legislators in the galleries of the Senate and House. Lawmakers often recognize constituents in those seats – spouses, high school students, and their local county commissioners, for example.

The Senate gallery had reopened last Thursday, but the closures are atypical if not unprecedented. One longtime political observer in Helena recalls an attempt in 1989, but House Sergeant at Arms Brad Murfitt said the gallery has not been closed in his tenure; this year is his fifth legislative session, roughly a decade.

House rules note the Speaker of the House can clear the gallery “in case of disturbance or disorderly conduct,” but it does not address advanced closures. The rules say the sergeant at arms maintains order in the gallery under direction of the speaker and chief clerk.

Monday, Speaker of the House Matt Regier, R-Kalispell, told the Daily Montanan safety was the justification for continuing to keep the gallery closed, and he said safety is his responsibility.

“We had police in riot gear that had to clear out the gallery,” Regier said of the protest one week earlier that led to the motion to punish Zephyr. “Unacceptable. So … until that threat goes away, the gallery will be closed, and the safety of Montana legislators will be protected.”

He said threats are ongoing and include “thousands of hate email, thousands of hate voicemail,” death threats, and some messages turned over to law enforcement. He noted Montana Highway Patrol troopers also have been on hand.

“The threat here for the safety of the Montana House is real, and I’m not going to take that lightly,” Regier said.

In an email, however, Minority Leader Kim Abbott, D-Helena, said people should be allowed to observe their legislators from the gallery.

“These are dark times, and how this body and building works has fundamentally changed  — it is impossible not to notice,” Abbott said in an emailed statement last week. “The speaker closed the gallery and is the only one who has the sole power to open it again.

“Montanans have a Constitutional Right to participate in our democratic process and public participation, and access to elected leaders and the laws they are passing does not mean watching from a TV. It’s being in the building, talking to your elected representative, and watching the floor activities and committee hearings in person.

“This is participation in our Democracy, and Montana Democrats have made it clear that this is what we want — we await an answer from the Speaker on when he plans to open the people’s house to the people again.”

Banishing a legislator isn’t new across the country and has happened recently in high profile votes to oust the “Tennessee three.” In a tweet last week, the Montana Budget and Policy Center said 19 legislators across all states have been expelled since 2000.

“Today, Montana became part of a bigger story of antidemocratic action in state legislatures,” the Montana Budget and Policy Center tweeted on the day of the vote to punish Zephyr.

Expulsion in Montana appears to be rare, but former gubernatorial candidate Bob Brown shared one incident from the history books.

Brown, also former legislator and Secretary of State, told the Daily Montanan the expulsion of Fred Whiteside, who represented Flathead County as a state senator in the late nineteenth century, was one of few examples of parallels to this moment from Montana history.

He said Whiteside had been expelled from the legislature after he exposed William A. Clark, one of Montana’s Copper Kings, for paying off state senators for a bid to serve in the U.S. Senate, back when state senators had such power.

That was before the U.S. Constitution was ratified to elect senators by popular vote; prior to this scandal, they were elected by the legislatures of their respective states. 

“A whole lot of legislators had accepted the bribes from Clark, and so they were embarrassed, and it appeared that the people in Montana would think, ‘Well, Whiteside is telling the truth,’” Brown said. “So do you know what they did? They expelled Fred Whiteside.”

Brown said Whiteside was reelected by his constituents and served several more terms.

George Ochenski of Helena, a former lobbyist, longtime political observer and regular contributor to the Daily Montanan, recalled a more recent attempt to close the public galleries in 1989 by Speaker Bob Marks, a Republican.

The attempt took place during a call of the House, which shuts down activities until all members are present, Ochenski said: “They send out the Highway Patrol to immediately go get and escort to the Capitol anyone who is not present.”

The highway patrol had to go get a lawmaker from the Bitterroot, more than a couple hundred miles roundtrip, and the doors to the House were locked and barred to prevent anyone from leaving or going in, Ochenski recalled. 

“Needless to say, it was quite the spectacle to see 99 House members preparing to sleep on the benches, so the full-time lobbyists were in the gallery,” Ochenski wrote. “Marks said ‘clear the galleries,’ and the (sergeant) at arms is sent to do that.

“We left reluctantly, but one of my good pals was the lobbyist for the Trial Lawyers, and with the support of several others, we told Marks we would immediately get a judge to reopen the gallery because of the unambiguous Constitutional right to know provision.” 

The Montana Constitution protects the right to know with this language: “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.”

Back then, he said the galleries remained open.

“Bob realized it wasn’t a good stance to try and defend and opened the galleries to the public,” Ochenski said.

A letter from Republican House leadership announcing the motion to discipline Zephyr last week said members of the public could watch via video, and a conference room was opened at the Capitol for people to see the video of the debate.

However, Ochenski said Regier’s response that people who wanted to observe the debate on the censure motion could watch it on MPAN was inadequate, in part because the coverage kept “looping” through the same opening prayer and missed some of the coverage, but also because of the right to know.

“I am stunned that, given the prior notice that Regier had decided the public wouldn’t be allowed in the galleries, that no one took stronger action to stop his unconstitutional order,” Ochenski said. “No lobbyists, no legislators, no ‘public’ advocates. They let it happen.”

The House gallery remained closed Monday.

One week earlier, Zephyr said she held up her microphone to amplify the voices of people in the gallery who were asking the Speaker of the House to “let her speak,” and Republicans said her decision against quieting the protest led to the censure.

Murfitt said the protest that erupted made him sad, and when it became clear the people were becoming participants in the action rather than observers, they crossed a line:  “I couldn’t restore business.”

He said the protest grew so loud, no one could hear, and the situation became unfair to everyone.

Monday marked day 86 of the legislature’s 90-day session.

The protest broke out after Speaker Regier did not recognize Zephyr for a third time on the floor after she said Republicans would have “blood on (their) hands” if they voted for a bill, since signed by Republican Gov. Greg Gianforte, to ban gender affirming care for minors and should be “ashamed.”

Monday, Regier said he is treating all legislators fairly; he said other lawmakers also have crossed lines of decorum, but unlike Zephyr, they apologized. 

“There’s been multiple Democrats and Republicans that have stepped outside of that,” Regier said. “They all acknowledge that. They get back in line. They say yes, we need civil debate moving forward. Everybody has done that except for one representative.

“So am I sorry that I treated all 100 the same? No.”

Zephyr has held her ground, and Monday, the ACLU of Montana filed a lawsuit alleging the speaker is violating Zephyr’s First Amendment rights. After the motion to ban her from the House floor, gallery and anteroom, Zephyr worked on a bench outside the chamber, but she said Regier tried to move her off the bench, too.

Last week, Associate Professor at the Department of Political Science and International Relations at Carroll College Jeremy Johnson said in an email it did not appear to him that the Rules of the Montana House included a way to reverse a censure.

When asked during a press conference if it was possible to reverse course on the decision to censure, Speaker Regier said that it was “up to the body.”

“They can make choices as they do,” Regier said.

In Tennessee, three Democratic lawmakers recently were accused of disrupting the House chamber and two — who are both Black — were expelled, according to reporting from States Newsroom’s Washington, D.C., Bureau and its Tennessee Lookout. The one white lawmaker was not banned.

The “Tennessee three” had taken over the House floor podium to protest inaction on gun safety legislation after a school shooting in March that left six people dead, including three children.

The Tennessee Lookout reported both expelled Democrats were quickly reinstated, but it also said the incident brought national attention to state politics.

Rep. Justin Pearson, one of the “Tennessee Three”, voiced support for Zephyr last week on Twitter ahead of her censure.

“Voices across the country continue to rise for justice and expose the anti-democratic behavior of people in Republican led states,” Pearson said. “We will not let our democracy die without fighting for every voice. We are in this fight from Memphis to Montana!”

Zephyr has spoken up throughout the legislative session on issues important to her, including affordable housing and transgender rights, and after the speaker refused to recognize her and her supporters demonstrated, national media picked up on the Montana news.

At Carroll, Johnson said the events could galvanize Democrats and help with Democratic fundraising in Montana, but he said it was too early to predict how much they would impact the next election cycle.

U.S. Sen. Jon Tester, an incumbent Democrat, announced in February he would be running for reelection, a campaign that will be watched nationally and is sure to bring out-of-state attention and dollars as the Democratic majority in the U.S. Senate may hang in the balance.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana.

Nicole Girten
Nicole Girten

Nicole Girten is a reporter for the Daily Montanan. She previously worked at the Great Falls Tribune as a government watchdog reporter. She holds a degree from Florida State University and a Master of Science from the Medill School of Journalism at Northwestern University.