Strange games 

Governor suing the entire Legislature makes no sense

It's the week before elections, Montana Democrats are hoping to buck the national tide and not get slaughtered at the polls, and by all rights the sitting Democratic governor should be out on the stump helping get his party's candidates elected. But that's not what's happening. Instead, Gov. Brian Schweitzer has decided to sue the Legislature over a spending bill from last session. It's left political watchers scratching their heads and wondering just what kind of strange game the governor is playing now.

As most folks know, we have three separate but equal branches of government for some very good reasons. It's the Legislature's job to write laws and appropriate money for the state budget. It's the executive's job to submit a budget, implement the laws, manage state agencies, and deal with the day-to-day contingencies that arise in between the Legislature's biennial sessions. The judiciary, meanwhile, sits in judgment on any number of issues involving existing laws and in determining if those laws are constitutional or not. This all makes good sense and provides what we routinely refer to as "checks and balances" between the branches of government so if one branch of government gets a little crazy the other branches can pull it back into line.

If you believe what the governor is telling us, he's suing the Legislature because he thinks HB 676, a companion bill to the Legislature's primary appropriation bill is, in his words, "blatantly unconstitutional." He's gone much further than that, however, and in a recent stormy meeting between Schweitzer and the leaders of the House and Senate, he accused the Montana Legislature of "beginning to act like Congress" because, in his opinion, HB 676 contains more than one subject, which violates the state constitutional provision that each bill address only one subject.

Few would argue that the congressional method of legislating, where anyone can add "riders" to "must pass" bills, is a dereliction of democracy. Many of the riders are unrelated to the bills to which they are attached and few, if any, ever receive the benefit of public scrutiny, let alone congressional debate. We obviously don't want or need congressional-style legislation here—especially since the Montana Constitution specifically forbids it.

But here's the rub: The governor, and only the governor, has the power to veto any bills he doesn't agree with. Although he really doesn't need a reason to do so, he is required to at least tell the Legislature why he vetoed the bill. A governor can also give the Legislature an "amendatory veto" in which he or she suggests amendments and sends the bill back to the Legislature for further action.

As part of the checks and balances built into our governmental system, however, the Legislature can override a governor's veto if "two-thirds of the members of each house present approve the bill." Although Schweitzer did not receive HB 676 until two days after the Legislature had adjourned, there is also a procedure for issuing a veto in such cases. Specifically: "If the Legislature is not in session when the Governor vetoes a bill, the Governor shall return the bill with reasons for the veto to the Legislature as provided by law. The Legislature may be polled on a bill that it approved by two-thirds of the members present or it may be reconvened to reconsider any bill so vetoed (Montana Constitution, Art. VI, Sec. 10)."

But Schweitzer didn't veto HB 676 when it landed on his desk 17 months ago. Instead, he decided not to sign it and, as with any other bill he decides not to sign, it becomes law 10 days after it was delivered without his signature. Again, if you believe the governor's line of reasoning, he didn't like the bill when it first hit his desk but decided not to veto it because he didn't want to spend the money to call the Legislature back into session to deal with it. So now, only months before the 2011 session convenes, the governor has decided the bill is unconstitutional and filed a lawsuit against the entire Legislature.

There are many pathways to iron out differences between governors and legislators. A reasonable person might expect Schweitzer to appear before the interim Legislative Council and let them know that he will veto such legislation next session. But he did not do that. Instead, he filed the lawsuit first and now insists that the matter go directly to the Supreme Court instead of through the traditional court hearings where both sides plead their case, a judicial decision is rendered and the appeal process follows if either side thinks there has been a mistaken judgment.

What's so puzzling about all this is not the subject of HB 676, but the governor's bizarre sense of timing and his obvious arrogance toward the separate but equal legislative branch of government. It's certainly no secret that Schweitzer has had one of the stormiest relationships with the Legislature of any governor in recent memory and often openly and harshly derides his fellow elected officials. But why now?

It simply doesn't make sense to attack both Republican and Democratic legislators days before an election. It makes even less sense if, as predicted by many, the Republicans take control of both the House and Senate in the upcoming session. Instead of unifying the Democrats, of which he is at least the titular leader, Schweitzer has united both Republican and Democrat legislators against him.

It's a strange play at a time when government in general is held in low esteem by the electorate. But make no mistake, if legislators feel their independence is threatened by the governor, they will stand together and fight back—which they are doing. Government, especially now, should work efficiently to address the problems facing Montanans, but Schweitzer's actions promise even worse relations with the Legislature in the fiscally difficult 2011 session. And that, fellow Montanans, is the last thing our state needs.

Helena's George Ochenski rattles the cage of the political establishment as a political analyst for the Independent. Contact Ochenski at

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