The 2021 Legislature’s last-minute laws
Most of the 700-plus bills passed by the 2021 Montana Legislature spent weeks or months moving through the legislative process, enduring multiple rounds of public hearings, debate and potential amendments as state senators and representatives weighed whether their provisions were worthy additions to the state legal code.
As is time-honored tradition in the Montana Capitol, however, the final days of the session saw lawmakers make several attempts to shoehorn last-minute provisions into pending bills, resurrecting previously stalled policies or introducing entirely new ones in an effort to slip them into law. A few of those attempts were significant — and successful.
While the Legislature’s procedural rules require bills to be introduced well before the end of the session, they do open up a few routes that let savvy lawmakers make sweeping amendments late in the game. Conference committees, for example, gather small groups of lawmakers to reconcile bills that have passed the House and Senate with differing language. Once amended to the conference committee’s satisfaction, bills are then subject to simple up or down votes on the House and Senate floors.
While standard conference committees are limited in scope to the specific differences between House and Senate versions of bills, the Legislature can instead send bills to what are called free conference committees, which are limited only by a requirement that bill provisions fit within the scope of the formal bill title. When bill titles are sufficiently flexible (e.g., “Generally revise budget laws”) free conference committees have broad latitude to amend bills however they see fit.
According to a Montana Free Press count, the Legislature sent 37 bills to conference in the 2021 session. Of those, 23 went to free conference committees, more than during any session since at least 2011.
Some of those bills returned to the House and Senate floors with minor tweaks that won bipartisan support. But free conference amendments on other measures, including the main state budget bill, produced shifts that drew outcry from opponents.
Rep. Jim Hamilton, D-Bozeman, in House floor debate Thursday accused free conference committees of packing last-minute line items into some budget bills.
“We put $20 million into House Bill 5 in less than 20 minutes,” said Hamilton, referring to the primary measure budgeting money for construction projects involving state-owned facilities. “Some of the stuff I’m not sure really what it’s going to do since we had so little time to work at it.”
Rep. Geraldine Custer, a longtime Republican lawmaker from Forsyth, also criticized this year’s conference committee process as the House debated a freshly amended election regulations bill Wednesday.
“I’ve never seen so many bills that have been dead somewhere else come back on a conference committee jammed in some bill that has nothing to do with them,” Custer said.
Proponents invariably defended their last-minute changes as worthy public policy — and argued that it’s an inherent part of lawmakers’ jobs to keep up with fast-moving legislation in the closing days of the session.
“I don’t apologize. This is the nature of the beast,” said Rep. Wendy McKamy, R-Ulm, during Wednesday’s floor debate.
As citizens try to make sense of the business done on their behalf in the Capitol this year, here’s a compilation of the highest-impact measures that slipped in under the sine die wire.
ABORTION PAYMENT STUDY
Republican lawmakers had previously sought to insert language in the main state budget bill and a companion policy bill that would have established a politically appointed committee of physicians to review cases in which Medicaid money is spent on abortions. While abortion rights advocates argued the board would infringe on constitutionally protected patient privacy, supporters said the measure was a reasonable way to check whether Medicaid payments comply with the federal law that allows public funding for abortions only when the patient’s life is at risk or if a pregnancy resulted from rape or incest.
Ultimately, Republicans backed away from the full-fledged abortion panel proposal, instead adopting a free conference committee amendment Wednesday to allocate $90,000 over two years for the state Department of Public Health and Human Services to use studying “Medicaid paid abortions.”
ENDING ‘CONTINUOUS ELIGIBILITY’ FOR PEOPLE ON EXPANDED MEDICAID
The House Bill 2 free conference committee also became the pivot point for a policy shift that was debated over the course of the legislative session: ending Montana’s policy of allowing people with health coverage through the state’s expanded Medicaid program to qualify for coverage based on a once-a-year certification.
House Appropriations Chair Llew Jones, R-Conrad, argued that requiring enrollees to certify that their income and living situations qualify for Medicaid more often, perhaps twice a year, would keep well-paid seasonal workers from freeloading off the program. Opponents of the change said it’s unnecessary red tape that makes it harder for Montanans to access the programs they qualify for, potentially disrupting their access to essential care.
A full-fledged bill to end the state’s continuous eligibility policy, Senate Bill 100, failed earlier in the session. That bill would have also changed eligibility verification for other public programs, such as food support and Temporary Assistance for Needy Families. An amendment brought by Jones during a HB 2 free conference meeting Tuesday focused only on 12-month eligibility for Medicaid expansion enrollees, directing the health department eliminate that policy. It passed on party lines.
AN ATTEMPT TO STEER REDISTRICTING
House Bill 506, which previously tweaked laws about when newly eligible voters can receive ballots, received a major addition in a free conference committee Tuesday, with Republican lawmakers adding language specifyingy how the state’s independent redistricting commission goes about dividing the state into two districts for U.S. House elections starting in 2022.
The change followed the U.S. Census Bureau’s announcement this week that Montana’s population had grown enough as of 2020 for the state to win back the second U.S. House seat it lost following the 1990 census — news that spurred the state Republican party to warn of potential gerrymandering.
Democrats on HB 506’s free conference committee argued that Montana’s Constitution doesn’t give the Legislature authority to meddle with the commission’s work drawing district boundaries, citing a 1973 attorney general’s opinion. Republicans voted the change through regardless, amending the law so it dictates specific factors for redistricting commissioners to prioritize.
The amended HB 506 passed both chambers late Tuesday and is on its way to the governor’s desk.
HIRING A SPECIAL COUNSEL FOR LEGISLATIVE INVESTIGATIONS
House Bill 483, which had worked its way through the session with language letting the Legislature’s majority and minority caucuses hire a total of four year-round staffers, became a home for a last-minute provision authorizing the hiring of a “special counsel” to aid legislative investigations. The change was made with a bipartisan vote in a free conference committee Tuesday.
The newly added position, a political appointee hired by the House speaker and Senate president, would help the Legislature exercise its power to investigate other parts of state government by holding hearings and issuing subpoenas. The addition came as lawmakers making final tweaks to the state budget bill voted to allocate $285,000 to fund Republicans’ politically charged investigation into alleged judicial bias beyond the end of this year’s legislative session.
The amended HB 483 passed both chambers of the Legislature late Tuesday and is on its way to the governor’s desk.
GIVING OUTFITTER CLIENTS A LEG UP IN NON-RESIDENT HUNTING LICENSE LOTTERIES
House Bill 637, initially presented by sponsor Seth Berglee, R-Joliet, as a clean-up bill addressing minor Fish, Wildlife and Parks rules like how the agency handles abandoned vehicles and manages the hunter apprentice program. By the time it passed the Legislature Wednesday, however, Berglee and other Republicans had repurposed it as a home for a set of controversial provisions benefiting commercial outfitters.
One of those changes, added during a free conference committee earlier Wednesday, would allow non-resident hunters who booked a hunt with an outfitter last year but did not draw a tag the opportunity to purchase a license this year. Another would give non-resident outfitted clients the chance to purchase an additional “preference point” to boost their odds of drawing a tag.
Republicans called the changes reasonable, temporary steps to help outfitting companies that have suffered during the COVID-19 pandemic keep afloat. Democratic opponents argued the amended bill would unfairly boost opportunities for wealthy non-resident hunters and provide a giveaway to private businesses benefitting from a public resource.
LIMITS ON PAID BALLOT COLLECTION
Language inserted into House Bill 530 on the Senate floor Monday directs the secretary of state to craft an agency rule prohibiting people from collecting mail-in ballots in exchange for any “pecuniary benefit,” specifying a $100 fine for violations.
The provision echoes the Ballot Integrity Protection Act, or BIPA, which was passed as a ballot measure in 2018 but struck down in court last year after Native American advocacy groups that collect ballots on behalf of Native voters argued it would suppress minority turnout. A bill to enact a revised version of BIPA, House Bill 406, failed earlier in the session.
Opponents of the new HB 530 language worried that an overly broad limit on paid ballot collection could have unintended consequences, such as preventing nursing home workers from helping residents request or return ballots. Advocates for ballot collection restrictions have argued they’re a way to prevent potential fraud.
Previously, HB 530 had been a brief measure requiring the secretary of state to adopt general-purpose election security rules, and had stalled in the Senate State Administration Committee earlier this month. Following Monday’s action, the amended bill passed the Legislature on nearly party-line votes Tuesday.
GRANTING RELIGIOUS ORGANIZATIONS A POLITICAL EXEMPTION
As momentum picked up in the final days of the session, House Bill 689 appeared to hit an unexpected snag. The measure, sponsored by Rep. Julie Dooling, R-Townsend, had originally aimed to require the University of Montana-based Montana Public Interest Research Group (MontPIRG) to furnish the Legislature with an annual report of its political fundraising and spending activity. But in a mid-March amendment, Sen. David Howard, R-Park City, slipped language into the bill resurrecting his earlier unsuccessful attempt to exempt religious organizations from having to disclose political activity to the Montana Commissioner of Political Practices.
Dooling resisted the amendment in conference committee this week, resulting in what she called a “stalemate” between herself and Howard. After the committee initially deadlocked, however, Dooling and Howard reached a compromise. Under that compromise, HB 689 frees religious groups from having to report election-related communication to the state provided that communication is not distributed to the general public. The committee reconvened and the amended bill passed. The lack of a definition of “general public” prompted Sen. Bryce Bennett, D-Missoula, to express continued concerns over the transparency of political activity in Montana.
Dooling and Howard also agreed to more specifically define the type of religious organization HB 689 applies to as “a house of worship with the major purpose of supporting religious activities” that spends “the majority of its money on religious activities.” Such activities include religious services, membership development, outreach and the production and distribution of religious literature.
LIMITS ON CAMPUS POLITICAL ACTIVITY, AND A RECUSAL REQUIREMENT FOR JUDGES
A bill originally designed to allow political candidates and parties to form joint fundraising committees in Montana quickly expanded in scope this week with the addition of three controversial amendments. Two of the amendments to Senate Bill 319 built on other efforts by Sen. Steve Fitzpatrick, R-Great Falls, to establish statutory restrictions for the UM-based group MontPIRG, while the third called for judicial recusals in certain situations.
Fitzpatrick’s changes to the bill require that any optional student fees supporting organizations such as MontPIRG must be opt-in, and prohibit political committees from conducting voter registration, signature gathering or voter turnout efforts in campus dorms, dining halls or athletic facilities. Any violations of the latter would result in a $1,000 fine for each infraction. During a hearing this week, Fitzpatrick said the amendments would prevent students from being “exploited” for political causes. Sen. Bryce Bennett, D-Missoula, a former executive director of MontPIRG, countered that he believed the provisions were an effort to “kill the organization” and “make it harder and harder for young people to register and vote.”
The recusal amendment, which was proposed by SB 319 sponsor Sen. Greg Hertz, R-Polson, touched off an entirely different argument. The change called for judges to recuse themselves from cases when an involved attorney has contributed significantly either to the judge’s campaign or to a political group supporting the judge within the preceding six years. Hertz told the conference committee the proposed recusals were in line with guidance currently given by the American Bar Association, and that other states including Utah have implemented far more restrictive laws regarding the contribution amounts triggering a recusal. Bennett objected again, saying that including contributions to political groups that make independent expenditures made no sense.
Another measure, Senate Bill 402, was also amended last week to explicitly require judges who have been involved in lobbying efforts for or against proposed legislation to recuse themselves from cases involving those laws.
All three SB 319 amendments were approved, and the bill passed the Legislature Wednesday. It still includes its original language as well, opening the door for political donors to support multiple candidates with a single check to a joint fundraising committee.
MORE SIDEBOARDS FOR MONTANA’S BALLOT INITIATIVE PROCESS
Earlier this month, Republicans broadened the impact of a measure that already had Democrats concerned about its effects on the ballot initiative process. House Bill 651 was initially drafted to give legislative committees authority to vote for or against a proposed ballot initiative prior to signature-gathering efforts and to have that vote’s results included on the petition. Under an amendment introduced by the Senate last week, the bill now requires that the attorney general also conduct a legal review of ballot initiatives to determine whether they will negatively affect one or more business interests in the state. If that review indicates an initiative will cause such harm, the attorney general’s statement must be included on the front page of the petition.
The House debated the change Tuesday, with the bill’s sponsor, Rep. Marta Bertoglio, R-Clancy, saying that the new version of HB 651 would “put some sideboards” on an initiative process she said has been subject to “significant abuses” in recent years. Rep. Kim Abbott, D-Helena, argued that the expanded role of the attorney general is “a brand new burden” for that office.
“Deeply concerned about this,” Abbott said. “A really big departure from what the bill initially did, and it really changes what our constituents can do through the initiative process in engaging Montana statute.”
The amended bill passed the House and Senate Tuesday on party-line votes.
One other high-profile measure debated in the closing days of the session didn’t ultimately make it into law.
That provision, inserted in House Bill 693, would have tasked the Montana Department of Justice with investigating the political activity and membership rolls of environmental groups. It was stripped out of the bill in a free conference committee Tuesday.
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