Gianforte asks Supreme Court to invent a privilege that allows him to keep us in the dark

October 26, 2023 4:43 am
Montana Republican Gov. Greg Gianforte signs Senate Bill 419, which bans TikTok in Montana, on Wednesday, May 17, 2023.

Montana Republican Gov. Greg Gianforte signs Senate Bill 419, which bans TikTok in Montana, on Wednesday, May 17, 2023. (Handout photo)

You can take Greg Gianforte out of the executive suite, but it’s obviously darn hard to take the executive out of Gianforte.

As a man who made his fortune and brand as the head of a billion dollar tech company, I can only imagine that in the world of Right Now Technologies, Gianforte got what he wanted, when he wanted it, and how he wanted it done.

And so he’s run headlong into what many successful titans of industry have discovered: Government doesn’t work that way.

Rather than adapt, Gianforte clings to a governance model that looks more like an autocrat, no matter how benevolent or right-minded you may think his policies are. And nowhere is that more on display than how his administration operates – closed, I’d argue, constipated with withheld public information.

For literally years, Gianforte has asserted that he doesn’t have to turn over documents related to what measures and policies his administration was pursuing in the legislature because he claims an executive privilege that doesn’t exist anywhere in Montana law. He’s been appealing court cases and appealing to the Montana Supreme Court, an occasional target of his displeasure, to find such a concept via judicial fiat.

For a party that chest thumps so often about the rule of law and not legislating from the bench, what the Gianforte administration is asking for is not just legislating from the bench, but finding an entire privilege that has been expressly foreclosed by the Montana Constitution’s strong right-to-know provisions.

In Montana, most documents the government produces are open for public inspection. And there’s a damn good reason for that: The government is simply the work of the people, getting done on their behalf. Therefore, government has an obligation to share what it’s doing with the people affected and paying for it.

The state’s constitution starts with the premise that all information and documents the government produces or has are presumed open unless otherwise specifically closed. And to be sure, it’s not an information free-for-all. In fact, to the chagrin of many journalists and public snoops, there are plenty of records outside the reach of Montanans, including most police reports and even some documents in the personnel files of public officials, thanks to the state’s strong right-to-privacy laws.

However, the constitution and common sense would say that information produced by government officials doing the government’s work is open so that people don’t have to rely on soundbites or hope the leaders will talk – we can just turn to the written record.

That’s exactly what Jayson O’Neill did more than two years ago, when he wanted to see the bill tracking forms that Gov. Gianforte was using to monitor – and likely influence – legislation in the 2021 session.

O’Neill had to sue to get those records. Check that: Is still suing, because Gianforte claims those forms are part of “executive privilege” – a concept not recognized in Montana law – and therefore should be out of the view of the public.

The problem, of course, is that those documents may give a very real, very clear insight to the priorities and inner workings of a man who has the power to sign legislation into law or reject it. It’s part of the deliberative decision-making process that Montanans should be able to see in order to understand the hows and whys of state government.

It’s even more critical to see those files or documents – whatever form they may take – because the Gianforte administration remains one of the most opaque, least transparent administrations out there – so in lieu of much public information, Montanans are forced to scrounge for documents to get a better understanding of this insular administration that has a fortress mentality.

But O’Neill’s fight has now been elevated to the Supreme Court, where lawyers for Gianforte are asking the court to discover an executive privilege that runs contrary to every good transparent principle our constitution has established.

Two years and counting, and O’Neill has yet to see those records.

Which brings us to the most recent legal fight: Last week, lawyers trying to understand how Montana’s ultra-narrowly crafted definition of biological sex was formed have asked for documents from the governor’s office.

Guess what Gianforte’s response was?

Yep, executive privilege.

He continues to demand there’s a law protecting him where none exists. If it talks like a dictator; if it acts like a dictator … well, I’ll let you puzzle out the rest.

But Gianforte should not be allowed to demand a privilege that doesn’t exist, especially when the entire purpose of that privilege is to hide or shield the office from public scrutiny concerning the laws that we will have to live under.

You have to wonder: Why shouldn’t we know what our governor is thinking? Why shouldn’t we know what went into his decision-making process as he chose to support or reject legislation?

Gianforte, a man who holds the highest public office in Montana, loves the office, but seems to hate the public part.

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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.