The 2011 legislative session has been underway for a little more than a week now and it's shaping up into a bare-knuckle brawl between Democratic Gov. Brian Schweitzer and the Republican majorities in both the House and Senate. For Schweitzer, it's the first time in his six years in office that he faces a united Republican legislature. And for the Republicans who swept into office during the so-called "Red Tide" of November, it's no-holds-barred as they face a governor whose routine insults of legislators are not forgotten nor taken lightly.
It is against this background that the political drama of the next four months will be staged. Although hammering out a balanced budget is the primary goal of every legislature and, hopefully, the end result this year, there remain many ongoing side stories that touch virtually every aspect of our state, and will affect our lives, for better or worse, for years to come.
Gov. Schweitzer stands front and center this session as he tries to defend his proposed budget. But in many ways, Schweitzer has painted himself into a corner not only on budgetary matters, but on a host of ancillary issues as well. Plus, his overtures to the Legislature have been rather schizophrenic. One day he tells legislative leaders there "is no bridge too far" to work together. An hour later, he tells reporters he will not appear in front of legislative committees to discuss his budget priorities, nor allow his department heads to do so. One day he says he is "cut from the same cloth" as Senate President Jim Peterson. The next day, Schweitzer accuses the Legislature of being "big boozers," and cites increased alcohol sales in Helena during legislative sessions as proof of his accusation. And, of course, Schweitzer actually went so far as to sue the 2009 Legislature last year over a two-year old bill that he claimed was unconstitutional. Although the court dismissed his suit, you can bet that legislators—all legislators—will remember the governor's actions.
Needless to say, Schweitzer's reputation for bullying both friends and enemies has not gone away. In fact, many wonder just how the governor will actually be able to justify his own rhetoric. Take, for instance, his 180-degree turn on energy development in Montana. Remember when the newly elected Schweitzer threw his massive, corporate-sponsored inaugural ball in Helena's Civic Center at the same time he was passing out "New Day" pins and proclaiming himself to be free from undue corporate influence?
Now, that seems laughable. The "clean and green" Schweitzer has morphed into the Coal/Gas/Oil Cowboy, who just made a trip to the Washington coast to make sure pesky environmental concerns don't get in the way of plans to ship millions of tons of Montana coal to China. Yep, the same China that the governor once cited as a huge polluting nation in need of direction from none other than Brian Schweitzer so he could show them how to use his "clean coal." Now, he argues there's no difference between burning the coal in power plants in Montana and shipping the energy out or simply shipping the coal to China so they can burn it there.
Heck, even his dog Jag must be confused since Schweitzer once claimed Jag would "sniff out oil and gas lobbyists" that the governor would then shun. Only now if Jag sniffs out an oil and gas (or coal) lobbyist, it'll be the governor who runs over to shake his hand and talk about more development of the Bakken oil fields, Alberta's tar sands and Otter Creek's coal.
If it sounds like a challenge to try and negotiate with someone who changes his mind, his commitments and his priorities from day to day, welcome to the 2011 session. The fact that Republican ideology is likewise shot through with hypocrisy on any number of issues only compounds the problem of communication between the governor and the Legislature.
Given the Republican majorities in both chambers of the 2011 Legislature, if you want to discuss what the legislative leadership is going to do, you'll be talking about Senate President Jim Peterson, R-Buffalo, and Speaker of the House Mike Milburn, R-Cascade.
In terms of experience, Peterson far exceeds Milburn, having served in the House from 2003 to 2006 prior to moving to the Senate. But in terms of influence, the 68–32 majority the Republicans carry in the House gives them the ability to override the governor's veto without a single vote from a Democrat. And while the Senate's 28–22 Republican majority means it can pass whatever bills it wants without Democratic support, they'll need at least five Dem votes to override a veto. While that number may seem daunting, when it comes to the multitude of bills now targeting Montana's environmental regulations—particularly on energy and mining exploration, development and reclamation—it's certainly not inconceivable that the Senate may well be capable of joining the House to neuter Schweitzer's veto power.
Although Peterson and Milburn set the agendas for the Senate and House, it is in the committees where that business is largely conducted. And here, the legislative leaders have been picked for very specific purposes. For instance, the third most powerful person in the 2011 Legislature is perhaps Sen. Dave Lewis, R-Helena, who was budget director for a decade and served under both Republican and Democratic governors.
Lewis will chair the Senate's Finance and Claims Committee and will, in all likelihood, be the sole gunslinger facing the governor over the budget at session's end. While the Montana Constitution requires all appropriation bills to originate in the House, the working reality of the Legislature is that when the conference committee dust settles, it's Senate Finance and Claims that calls the final shots. There's no reason to believe, especially with both chambers controlled by one party, things will be any different this time around.
We can also expect to see some fireworks from the Democrat's House Minority Leader Jon Sesso. Having chaired House Appropriations last session, Sesso, D-Butte, is well acquainted with the budgeting process. This session, Sesso is carrying one of the major bills required to transfer funds to balance the governor's budget, and will likely face a tremendous uphill battle to see it passed.
It's safe to say the biggest issue at the 2011 Legislature will be the budget. But it's equally safe to say that with more than 2,000 bills already requested, there's a ton of ancillary issues—like medical marijuana, environmental regulation, education, health care and social services—that promise to be both high profile and highly controversial.
Throughout the years, Montana has variously enjoyed times of plenty and times of severe budget shortages. This time around the money is short. How short depends on whose point of view you want to embrace.
Schweitzer, whose legal duty is to present the Legislature with a budget, did so in November, lauding the state's fiscal condition. He claimed Montana is "one of only two states with budgets in the black" and aggressively defended his budget as "balanced."
Republicans disagree, and point to tens of millions of dollars of fund transfers in the governor's budget. They say it's "structurally unbalanced" because projected revenues do not meet projected expenditures without the fund transfers.
While this may seem an arcane point to many people, the issue is significant. For instance, one of the governor's fund transfers takes almost $18 million from the Treasure State Endowment Program, and nearly $5 million from the regional water system account, and sticks it all in the general fund. The move, contained in House Bill 11, and carried by Rep. Jon Sesso, is troubling for several reasons. First, those funds are intended for use by local governments to help finance necessary infrastructure projects. By moving the money to the general fund, local governments that developed and submitted successful grant applications now face a grim choice—either drop the projects or shift the funding to the backs of local taxpayers.
Even worse—and a point that bolsters the Republicans' contentions—is that the bill makes a change in law to allow such transfers at any time in the future. So now, instead of having a stable program to which local governments know they can turn, there will be no guarantee that future legislatures and governors won't simply de-fund the program whenever they need a few million more to "balance" their budgets.
Likewise, a similar measure, HB 42, carried by Rep. Galen Hollenbaugh, D-Helena, performs similar fiscal sleight-of-hand—and makes a similar law change to allow fund transfers into the future. Hollenbaugh's bill would pull $6 million from the state's coalbed methane account to the general fund.
Current law says: "Money deposited in the account must be used to compensate landowners and water right holders for damages attributable to coal bed methane development as provided in this part." It's not like Montana has come anywhere close to determining the full impacts from coalbed methane extraction, especially as projections are for tens of thousands of new wells to be drilled in the future. Once again, ripping off these dedicated funds to balance Schweitzer's proposed budget is extremely shortsighted.
But as Sen. Lewis, chair of the Finance and Claims Committee, pointed out: "To do the transfers, those bills will have to pass." It is telling that Democrats, not Republicans, are carrying the bills to do so—and given the fact that Democrats hold less than one-third of House seats, the chances of those bills ever making it to the Senate are slim indeed.
All of which brings up the harsh reality facing the state: Without the fund transfers, Schweitzer's budget doesn't work because it isn't balanced. Consequently, the Republicans, if they stick to their guns about seeking a "structurally balanced" budget, say they'll cut around $383 million in proposed spending from the governor's budget to be in line with shortfalls in future revenues. Where they cut that money will be the nexus of the budget battle and will roll across all the various agencies and divisions of government.
The real "off-budget" 800-pound gorilla in the Capitol, however, is the nearly $3 billion shortfall in the Public Employees' Retirement System and the Teachers' Retirement System. The enormous losses both systems incurred in the stock market crash have left their ability to cover future benefits in serious jeopardy. It's not something Schweitzer takes into account with his claim of the state "being in the black," but there are already highly contentious bills that would, if they pass and become law, significantly change the pension system.
Since state retirement pensions are based on an employee's top three years of earnings, Sen. Dave Lewis, R-Helena, has said he'll seek a state referendum to cap most state employees' salaries at twice Montana's mean household income. Needless to say, the proposal has set the public employee unions on fire, in no small part because by using the referendum, the Legislature can skirt the governor's veto pen and go straight to the ballot box in the next election. You can bet Lewis won't be the only one using referendums to nullify veto power.
Plenty of people will argue there are more important issues than the environment. But without clean air, water and land, humans are toast.
So far, Montanans have set examples of environmental protection that are the envy of the world. The Montana Constitution requires reclamation of all lands disturbed by the taking of natural resources. It also guarantees every Montanan a "clean and healthful environment." Our citizen-passed bans on nuclear wastes and, more recently, on the perpetual pollution caused by cyanide heap-leach gold mining are testaments to the love and respect with which Montanans treat their homeland. And the foundational Montana Environmental Policy Act guarantees every Montanan the right to take part in major actions of their government that affect the environment.
But now, all those shining lights in the dim gloom of an industrially polluted world are at risk. Already there are hundreds of bill draft requests to change—mostly for the worse—Montana's environmental laws. Make no mistake, the Republicans and even some Democrats have targeted the reduction or elimination of environmental regulation as their main goal this session. When Speaker of the House Milburn released the GOP "priority list" early this week, he said: "Our main objective is to help natural resource opportunities." Of course the old saw that you can somehow make it easier, quicker and less risky to develop extractive industries and still protect the environment was trotted out once again. But Montana's long experience and history with the aftermath of mining, drilling, logging and power plants suggests just the opposite.
Unfortunately, this is one more arena where the governor and the Democrats who follow his lead have painted themselves into a corner. Schweitzer claims "jobs are my No.1, No. 2 and No. 3 priority," and his words were echoed by Democratic Senate Minority Leader Carol Williams last week.
And so the bogus "jobs versus the environment" argument is back in play. But if jobs are the No. 1 priority for the governor and Democratic legislative leadership, as well as the Republican majorities, where does that leave the environment? Here's a hint: Tim Lindsay, chairman of the board of Revett Minerals, told legislators at last weekend's "business forum" that the state needed to streamline its permitting process and not allow it to get waylaid by legal actions or other delays. In other words, if you live downstream, downwind, or use water in the vicinity of natural resource extraction projects, your future may well be in jeopardy in the next four months.
Both Schweitzer and the Republican leadership say new taxes are off the table for this session. In fact, despite the hundreds of millions of dollars in projected revenue shortfall, Schweitzer says he supports getting rid of the business equipment tax for all except the very largest of Montana businesses. What's likely to happen, however, is that Republicans will take the governor's proposal and expand it to all businesses—which will throw Schweitzer's budget even further out of balance.
Ironically, neither the governor nor the Republican leadership want to end the tax holiday for new oil and gas wells that exempts the first 18 months of production—typically when they get the most out of the wells—from taxation. So the oil and gas companies in the highly profitable Bakken Formation will continue to get the tax break—and Montana's other taxpayers will have to pick up the slack.
Besides the predictable fight over education spending, the single greatest battle in the education arena this session is likely to be over the establishment of private charter schools, and issuing tax vouchers for those who wish to send their children there instead of public schools. Public education advocates will claim this amounts to funding private and perhaps religious private schools with public revenue. Charter school advocates will claim they have a right to send their children to non-public schools because they believe they'll get a better education. It'll be a battle, to be sure, and the outcome is far from predictable.
As most readers know, Montana's Medical Marijuana Initiative received more votes than any of the politicians running for office when it was approved in 2004. Since that time, almost 30,000 Montanans have followed the prescribed process to obtain the legal right to use marijuana for medical purposes—most commonly, chronic pain.
Not coincidentally, Montana's medical marijuana business rapidly expanded to meet the demand, with large commercial greenhouses and backyard plots now in virtually every city and town.
Critics say the law is being abused and allowing what should be illegal drugs to those who merely want to use them recreationally. To bolster their case, they point to the antics of medical marijuana promoter Jason Christ, the owner of the Montana Caregivers Network who smoked a large pipe openly in front of the Capitol when he came to testify at an interim committee hearing, and who is currently facing criminal charges of felony intimidation in Missoula. Christ's organization is responsible for helping thousands of patients register with the state program after meeting with doctors through video teleconference, rather than with in-person visits.
Tom Daubert, founder of Patients and Families United and one of the primary backers of the successful 2004 initiative, understands the challenges of the upcoming session.
"With two-dozen medical cannabis-connected bills in the works, most of them draconian, we fear an overreaction by the Legislature that could make a bad situation worse for everyone, especially patients, since they will make it harder for true patients to access medical cannabis for their conditions," he says. "But making it harder is not the same thing as making it function correctly and in line with what Montanans want and what would work best for all concerned. So we're teaming up with other cannabis-related groups in Montana to coordinate an ambitious public and patient education effort to help the Legislature develop and adopt changes that will truly allow the program to work as voters intended."
Daubert and his fellow advocates for medical marijuana will have their work cut out for them. Speaker of the House Milburn, for instance, has already submitted HB 161, a bill to repeal the entire medical marijuana law.
Montana's U.S. Sen. Max Baucus was the architect of the federal health insurance reform act signed into law by President Obama last year. Baucus has continually lauded the benefits of the measure, but it has been met with almost universal opposition from Republicans nationwide. Montana's GOP is no exception, and repealing what they call "Obamacare" has become a top priority for Republicans in both Congress and state legislatures this year. There is already a bill in the hopper to force Attorney General Steve Bullock to join the 20 other states that are currently suing the federal government over the health care law in Florida courts.
Ironically, the effort to repeal the Obama health care law has spilled over into other arenas and now there are suggestions that perhaps Montana should consider radically revamping its entire Medicaid program. And that says nothing about Schweitzer's effort to privatize at least a portion of Medicaid services. Yes, that would be a Democratic governor supporting privatization of currently public services.
This summer's decision by Federal District Judge Donald Molloy to put wolves back on the endangered species list has spawned a host of bills to counter the ruling. In the meantime, a recently announced proposal by the Schweitzer administration to place quarantined Yellowstone Park bison in state wildlife management areas or in federal wilderness areas is being met head-on with bills that will prohibit any such move.
Anyone who tries to look into the crystal ball and accurately predict the outcome of a legislative session this early in the game has their work cut out for them. But for what it's worth, here goes.
It's highly likely the Republicans will indeed cut Schweitzer's budget instead of transferring all the funds he has proposed. How and where they'll cut remains a mystery, since the biggest chunk of money will always be in education, corrections and health and social services. But thanks to the many burrs under the saddle on environmental regulation, don't be surprised to see cuts directed there as well.
The health care debacle will only worsen, perhaps significantly. With what is expected to be a gridlocked U.S. Congress for the next two years at least, the entire national health care effort may well simply grind to a halt.
Social issues such as abortion and gay rights appear to be taking a back seat as Republican priorities, but undoubtedly individual legislators will carry their torches on these bedrock conservative issues.
It looks like some rough seas ahead for Schweitzer. As a lame-duck governor, his power is considerably reduced since the end of his final term in office is in sight. Thanks to his wide swings in positions on any number of issues, both Schweitzer and Democrats in general are going to have a tough time derailing Republican proposals that appear to coincide with the "jobs, jobs, jobs" mantra.
But remember the physics of politics—every action has an equal and opposite reaction. If the Legislature goes too crazy in any one direction, you can expect the opposition to rise accordingly. In the case of the environment and natural resource extraction, it would be wise to remember that Montana's citizens already approved the cyanide heap-leach ban by initiative and would likely pass other measures to protect our state's unique and precious environmental assets. The same goes for the medical marijuana "reforms" being contemplated. The people, by a wide margin, approved the use of medical marijuana, and efforts to simply repeal the measure are likely to backfire.
Four months from now, we'll see how it all turns out.
Follow the fireworks
The state offers a number of different ways to follow the action in Helena and make your voice heard.
Watch, listen and learn
The Legislature website provides live broadcasts of floor sessions and committee hearings, as well as archived footage. For live coverage, floor sessions generally begin at 1 p.m. Mondays through Fridays and 8 a.m. most Saturdays.
To access both audio and video broadcasts, visit www.leg.mt.gov/broadcast.
The session is also broadcast on cable television. Western Montana stations include:
Missoula: Channel 67
Bigfork: Channel 67
Kalispell: Channel 67
Columbia Falls: Channel 67
Hamilton: Channel 17
Libby: Channel 17
Stevensville: Channel 37
Polson: Channel 97
Ronan: Channel 97
Find your legislator—and their e-mail address—at http://leg.mt.gov/css/findalegislator.asp.
If you want to leave a message for a legislator by phone, call the Session Information Desk at (406) 444-4800. This service is available from 7:30 a.m. to 5 p.m. Mondays through Fridays, and from 8 a.m. to adjournment on Saturdays.
To reach a legislator by mail, address letters to:
P.O. Box 200500
Helena, MT 59620-0500
Montana House of Representatives
P.O. Box 200400
Helena, MT 59620-0400
Find more information on the 2011 Regular Session, including a database of bill draft requests and status, at http://leg.mt.gov/css/sessions/62nd/default.asp. For more information than you could possibly want about current laws, the lawmaking process and the history of state government, visit http://leg.mt.gov.
Helena's George Ochenski rattles the cage of the political establishment as a political analyst for the Independent. Read his weekly column on page 9, or contact Ochenski at email@example.com.