Montana 67th Legislative Session - Week 17
2021 Montana Legislature Adjourns after Near-Marijuana Meltdown and Bill-Resurrecting Blitz
The 67th Montana Legislature adjourned on Thursday, April 29, following a week filled with policies brought back from the dead and capped by a failed high-stakes gamble by conservative Republicans to rewrite a major portion of the recreational marijuana plan passed just days earlier.
Both chambers adjourned “sine die” -- a Latin phrase meaning “without assigning another day to meet” -- just minutes apart, with Republicans touting a laundry list of bills their caucus passed cracking down on elections, promoting what they call religious freedom and cutting taxes and Democrats expressing frustration with legislation they said they fear will lead to costly litigation in the courts and negative impacts for Montanans.
“This is absolutely the best session I’ve ever been in,” said Republican Senate Majority Leader Cary Smith, R-Billings, during a speech on the Senate floor. “We have gotten so much done this time that we struggled with the Democratic administration to get passed for the last seven sessions I’ve been involved in.”
House Minority Leader Kim Abbott, D-Helena, criticized Republicans for “abandoning” their campaign promises to boost jobs and the economy during a press conference after the session closed.
“Our constituents sent us here to create jobs, and our constituents sent us here to be laser-focused on the folks who needed a break the most -- middle class Montanans,” Abbott said. “What we saw was a Republican tax package that benefits wealthy Montanans disproportionately.”
The post-session reflections were preceded, however, by a dramatic move orchestrated by some right-wing Republicans to push through a heavily amended bill to redirect recreational marijuana revenue and potentially block thousands of Montanans from accessing medical marijuana.
House Bill 701 cleared the Legislature with bipartisan support earlier in the week, and served as a colossal “compromise” bill with plans to regulate and tax Montana’s burgeoning recreational marijuana program, passed by voters via ballot initiative in November 2020. However, some Republicans were not happy with the bill’s plan to dump a large portion of the tax revenue into the state’s general fund -- its primary “checking account” used to pay for a wide variety of state programs. The group had made repeated arguments that the money should instead flow into a separate account reserved for dealing with the “unintended consequences” of legalizing marijuana -- though, proponents of the idea did not offer clear explanations of what those consequences might be.
The climax of that dissatisfaction came in the form of House Bill 640, a marijuana bill that previously promised minor changes to implementation plans before a conference committee added major amendments Thursday afternoon. Steered by Rep. Matt Regier, R-Kalispell, the version of the bill the committee produced would have created the “marijuana state special revenue account” trust fund sought by Regier and other hardline conservatives, throwing a wrench in the revenue plans from HB 701. Regier previously worked closely with Rep. Derek Skees, also a Kalispell Republican, on House Bill 670, a marijuana bill that would have also created the trust fund. That bill died in a Senate committee tasked with producing a unified marijuana implementation proposal.
“We don’t know exactly how this is going to play out in Montana,” Regier said during the committee debate. “I believe this is the prudent thing to do -- the wise, mature thing to do -- to have some resources to be able to combat whatever problems arise in the future.”
The amended HB 640 would have also required all medical marijuana cardholders, present and future, who use the drug to treat chronic pain to be approved by a doctor “board-certified in pain medication.” Democrat opponents blasted that addition and said Montana has just four of those physicians, which they said would de-facto eliminate access to medical marijuana for thousands of Montanans.
“What we do today could not only change lives, it could end lives,” said Sen. Ellie Boldman, D-Missoula. “You certainly are ending medical marijuana for the vast majority of folks that are utilizing this legal product right now.”
The committee advanced the bill on a party-line vote and the House passed it similarly, but HB 640 died in the Senate after several Republicans joined Democrats in voting it down. Sen. Bob Brown, R-Thompson Falls, voted for the bill in committee but switched his vote on the Senate floor, calling the bill “too much, too late” in the session.
The marijuana tug-of-war on the session’s last day was hardly the only dramatic moment of the week. Earlier days saw a flood of bills thought to be dead resurrected and pushed through the process as the House of Representatives voted to lift their standard operating rules, allowing for some bills that missed deadlines or that were tabled in committees to be “blasted” onto the House floor for more debate. Other bills that were previously defeated saw portions of their text amended into other bills to keep them alive, leading to repeated complaints from Democrats of rushing unfairly through the lawmaking process.
House Bill 530, sponsored by Rep. Wendy McKamey, R-Ulm, originally sought to require the Secretary of State to “adopt rules defining and governing election security,” requiring the office to work with county administrators to ensure compliance with security guidelines in future elections. HB 530 originally cleared with House unanimous support, but the Senate amended it, adding a portion of a bill that previously died that restricts ballot collection. The new language prohibits people from accepting payment to collect ballots. The amended bill passed both chambers down party lines.
In a similar vein, lawmakers sent House Bill 506 to a conference committee after neither chamber could agree on a unified vision for the bill, which originally sought to prohibit election administrators from sending ballots to Montanans under the age of 18. The committee then tacked on an amendment with language directing how Montana’s new congressional district’s boundaries should be drawn -- a practice reserved to Montana’s independent Districting and Apportionment Commission. The new version of the bill passed mostly down party lines, but not without protest from Democrats.
“I have real concerns about the basic constitutionality of this language, which is trying to add further restraints upon that commission that could be seen as beginning to lean a bipartisan commission toward a partisan result,” said Rep. Laurie Bishop, D-Livingston.
Bill sponsor Rep. Paul Fielder, R-Thompson Falls, said the language was “coordinated” with the legal department from Secretary of State Christi Jacobson’s office, and said it would prevent partisan gerrymandering.
Other bills cleared the Legislature on partisan votes bearing language from previously defeated bills, including Senate Bill 319, which now bans political groups from helping register students to vote in college campus residence halls, dining halls and gyms. Lawmakers also passed House Bill 637, originally a Fish, Wildlife and Parks “cleanup bill” that now gives preference to outfitter-assisted, non-resident hunters in the draw for big game hunting licenses over non-outfitted, non-resident hunters.
Rep. Geraldine Custer, R-Forsyth, has often been a vocal critic of more controversial Republican legislation, and slammed the bill resurrections during House debate on SB 319.
“In all four years I’ve been here, I’ve never seen this many bills that have been dead somewhere else come back on a conference committee jammed in some bill it has nothing to do with,” Custer said. “This is horrible.”
Lawmakers Pass Marijuana Implementation Bill After Rocky Road in the House
Montana Lawmakers approved a 162-page plan to regulate and tax recreational marijuana following a frenetic four weeks of debate, settling on a bill that aligns more with the ballot initiative voters passed last year and leaving some conservative lawmakers frustrated with the end result.
The House of Representatives passed House Bill 701, sponsored by Rep. Mike Hopkins, R-Missoula, on a bipartisan, 67-32 vote, sending it to Gov. Greg Gianforte’s desk for his signature. The vote crowned HB 701 the winner from a trio of plans that emerged at the start of April for how best to manage the legal recreational marijuana market after a special Senate committee spent days hammering provisions from the other two bills into a “compromise” final form.
HB 701 took a bumpy path to the governor’s desk, hitting a hangup in committee in early April after lawmakers said they weren’t happy with its form at the time, then facing an initial roadblock in the House after conservative lawmakers pushed to send the bill back to a committee to fix some additions made in the Senate. But, after some behind-the-scenes maneuvering, the House reconsidered their decision and eventually passed the bill in a bipartisan fashion, earning the support of Democrats and moderate Republicans.
The bill, which seeks to open Montana’s recreational market next January if signed into law, sets out plans to tax recreational and medical marijuana, license recreational dispensaries, allow for personal cultivation of marijuana and distribute up to an estimated $52 million in annual tax revenue from the program. Hopkins repeatedly touted the bill as the most “comprehensive” of all the marijuana regulation proposals the Legislature considered, and HB 701 had Gianforte’s favor from the beginning.
While the bill originally contained very little of the funding for conservation promised in the November ballot initiative that legalized marijuana, lawmakers in the Senate added back some of that during committee work, winning over Democrats who had initially outright opposed all recreational marijuana bills because they “departed from the will of the voters.” Under HB 701, recreational marijuana would be taxed at 20%, while medical marijuana would stay at 4%. The revenue generated from that tax would fund a $6 million addiction recovery program requested by Gianforte, and several conservation programs: 20% to wildlife habitat conservation, 4% to state parks, 4% to trails and recreational facilities and 4% to the nongame wildlife account.
In reintroducing HB 701 to the House, Hopkins praised the work done in the Senate to produce a final product.
“There might be parts I’m not a gigantic fan of, but at the end of the day, that’s how the process works,” Hopkins told lawmakers.
Democrats in the House echoed Hopkins’ sentiments, specifically touting the reintroduction of some of the conservation funding from Initiative 190.
“[HB] 701 has been changed in several important ways to bring it closer to the will of the voters,” said Rep. Katie Sullivan, D-Missoula. “In the world of lawyers, we have a saying that, ‘a good negotiation is one where both parties come away a little bit dissatisfied,’ and I think a lot of us in this room are going to feel that today.”
That dissatisfaction came strongly from right-wing Republicans in the House who protested the addition of an optional 3% local sales tax on marijuana and a 20% tax rate they said would drive consumers onto the black market, where the “cartels” operate.
Rep. Derek Skees, R-Kalispell, whose House Bill 670 originally sought to tax marijuana at a lower 15% rate and dump most of the revenue into public pension funds, said he disagreed that HB 701 was a “compromise” between his bill and Missoula Republican Rep. Brad Tschida’s House Bill 707. Skees said the state shouldn’t fund new programs and spend tax revenue from marijuana without considering potential economic damage the state might face from legalization of the drug.
Republican opposition in the House was so great initially that the lawmakers voted 53-47 to send HB 701 to a conference committee to do further work on the bill. However, Hopkins successfully won a reconsideration vote later during the floor session, saying he had failed to properly explain portions of the bill. The following day, the House voted 67-32 to pass the bill.
In an interview, Hopkins said the change of heart came because lawmakers realized that sending the bill to a conference committee would likely kill it, as both the House and the Senate would have to approve whatever changes the committee made in order to pass the bill once and for all. And, as Hopkins reminded lawmakers on the House floor, if HB 701 died, the state would be “stuck” with the text voters approved in I-190.
“I don’t think that was our charge -- to make a perfect bill. But what we have in front of us is a dramatically better product compared to the initiative. Without this bill, you have I-190 as law in the state of Montana,” Hopkins said.
HB 701 also changes the way counties can approve or reject the recreational marijuana market. Under the bill, counties that voted in favor of legalization can choose to hold a vote to opt-out of the market, while those that voted against legalization have the chance to vote to opt-in. In counties that choose to opt-out of recreational marijuana, existing medical dispensaries will be “grandfathered” in.
An eleventh-hour attempt to overturn the revenue portion of HB 701 delayed the end of the session for several hours Thursday as some conservatives on a conference committee attempted to re-route marijuana funding into a “marijuana state special revenue account.” The bill containing that change successfully made it out of committee and passed the House, but died in the Senate as several Republican lawmakers expressed unease at changing the previous “compromise” bill so late in the session.
Lawmakers Pass $12 Billion State Budget
Montana legislators approved more than $12.5 billion in state spending for the next two years, completing their only constitutional mandate by sending a balanced budget to Gov. Greg Gianforte’s desk.
The session-long budget-making process saw several major changes throughout, with many tweaks coming in the final week of the Legislature as Republicans added in funding for some controversial new programs while cutting back on state health spending and some education funds.
In its final form, House Bill 2 proposes spending about $6.4 billion from state funds and $6.2 billion in federal funds across several areas: general government, health and human services, highways and transportation, the judicial branch and public education. The $12.5 billion total represents a 3.6% increase over the previous budget passed in 2019. Gianforte ran for governor on a promise to “hold the line” on new state spending, and the Legislature’s budget has undercut Gianforte's goal, coming in at 1% lower than the executive’s proposal.
After coming out of a conference committee tasked with producing a version of the bill appealing to the House and the Senate, the latter chamber passed it on a bipartisan, 41-9 vote without much discussion. Sen. Ryan Osmundson, R-Buffalo, carried the bill in the Senate and told his colleagues the bill was in “really good shape,” touting a $350 million ending fund balance to cover any unexpected costs and the lower overall growth compared to previous sessions.
“I can’t stress enough, the state is in a very good financial position at this time,” Osmundson said. “We’ve got a very good budget.”
Republicans on the conference committee also appropriated $100,000 to fund a legal defense for a lawsuit against Secretary of State Christi Jacobsen over bills passed by the Legislature restricting voter access, as well as $285,000 to operate an interim committee on “judicial transparency and accountability.” Republicans formed the panel to investigate their own allegations of bias and dishonest practices in the judiciary after emails surfaced indicating that some district judges took positions on a bill now before the state Supreme Court. Sen. Ellie Boldman, D-Missoula, said the appropriations were a waste of money, though she still supported the full bill.
“Elections have consequences, and I’m just afraid for the taxpayers of Montana,” Boldman said.
On the House side, Rep. Llew Jones, R-Conrad, suggested the bill was “beautiful” when he reintroduced it to representatives. Jones chairs the House Appropriations Committee and plays a pivotal role in the budget-building process.
“The statistics on this bill are pretty good,” Jones said. “Beauty is in the eye of the beholder, but this is a good, solid budget.”
Democrats in the House, however, unanimously opposed HB 2, slamming it for “policy language” inserted into the bill, like one amendment that informs the Department of Health and Human Services of the Legislature’s intent to end continuous eligibility for Medicaid expansion, a program that allows some Medicaid users to stay enrolled for longer periods of time without reapplying.
“It’s hard to imagine a bill that’s more harmful to the kiddies than this one, where we’d be asking unelected bureaucrats to be doing what we soundly rejected in our Legislature on a bipartisan basis,” said Rep. Ed Stafman, D-Bozeman.
Democrats also blasted the bill for an addition made by Republicans in its final committee to appropriate $90,000 to produce a “report” on abortions paid for by Medicaid.
Bill Revising Governor’s Powers During Emergencies Clears Legislature
A bill that would limit how long a state of emergency can last in Montana without input from the Legislature is heading to Gov. Greg Gianforte’s desk -- one bill of many this session dealing with the political fallout of the COVID-19 pandemic.
House Bill 230, sponsored by Rep. Matt Regier, R-Kalispell, debuted in the Capitol back in January, and took a long path through the Legislature, being amended several times to bring it into line with other bills looking to accomplish the same goal: limiting the powers of the governor to act unilaterally during states of emergency. The Legislature passed the bill on party-line, 67-33 vote, and it’s now headed to the governor’s desk.
In its final form, HB 230 allows the governor to declare a state of emergency for 45 days before they must request that the Legislature extend the emergency declaration for an additional 45 days. The bill also prohibits the governor and state agencies from “discriminating” against religious organizations, prohibiting the governor from restricting religious gatherings and normal operation during states of emergency -- a change brought in light of the temporary closures of religious facilities across the state during the pandemic.
Regier has positioned the bill as a “rebalancing” of Montana’s branches of government, preventing the governor from exerting too much unchecked control over state commerce and religious exercise during states of emergency.
“We are a republic government, we’ve got three different branches -- it’s a great system, but as we experienced over the last year, there are some loopholes in our system,” Regier said during a House debate in February. “Some of our checks were not quite balanced.”
The bill advanced through the Legislature largely down party lines, with Democrats arguing the bill didn’t take into consideration non-pandemic-related states of emergency and called the time limits on emergency declarations “arbitrary.”
Rep. Katie Sullivan, D-Missoula, said Montana’s most frequent states of emergency are declared during wildfire season, and said the bill would hamper state responses to long-term emergencies.
“This is going to limit local governments and the state from accessing critical funding by having our most common emergencies end at artificial times,” Sullivan said.
HB 230 needed to be reconciled with other bills addressing the same area of law, including a bill sponsored by Rep. David Bedey, R-Hamilton. House Bill 122, similar to HB 230, sought to rest power in the Legislature to extend states of emergency, allowing lawmakers to prolong such a declaration by an additional 60 days per request by the governor. In an interview, Bedey said he and Regier worked on combining their ideas into HB 230’s final form. Regier went forward with the bill limiting the governor’s powers, while Bedey proceeded with House Bill 121, which Gianforte recently signed into law.
That bill broadly revises the powers of local health officials to issue orders and regulations, now requiring the governmental body that oversees them to sign off on those orders. Those bodies, usually county commissioners, can also revise or reject health board orders outright.
Throughout the bill’s time in the Legislature, Bedey stressed it was about more than the fallout from health mandates during the pandemic. Rather, he said it would help balance the power of a group of unelected officials with the elected representatives that oversee them, creating “accountability.”
“In my mind, those of us who get elected ought to be taking the heat,” Bedey said in an interview. “We’re the ones who are directly responsible to the people, and public health officials have an important job to do.”
That bill passed the Legislature on party lines, and Gianforte signed it on April 16.
Another measure, House Bill 257, seeks to apply similar limits to the state and local governments’ power to restrict the operations of private businesses. Sponsored by Rep. Jedediah Hinkle, R-Belgrade, HB 257 passed the Legislature along party lines and is awaiting a signature from the governor. The bill restricts the ability of local governments to compel businesses to deny customers access or the ability to purchase from the business, and removes the government’s power to criminalize business owners who do not comply with ordinances relating to business access.
Montana Legislature Solidifies Plan to Disperse $2 Billion in Federal COVID-19 Relief
In their final week of the 2021 Legislative Session, lawmakers voted to approve spending guidelines for just over $2 billion in federal COVID-19 relief funds -- an amount, when combined with other dedicated federal funds, nearly equal to how much the state draws from its coffers in a single year.
President Joe Biden signed the American Rescue Plan Act in March 2021, appropriating more than $1.9 trillion in federal funds to go toward economic recovery from the COVID-19 pandemic. Montana’s share amounted to about $3 billion, $1 billion of which went directly to local governments and stimulus checks. Since Montana is limited to holding a 90-day Legislative Session every two years, that meant lawmakers had just over a month to draft a plan for how to spend the extra funds, a task they completed on the day before the Legislature adjourned.
House Bill 632, sponsored by Rep. Frank Garner, R-Kalispell, creates a series of “advisory commissions” comprised of legislators and appointees from the governor who are tasked with reviewing grant applications for COVID-19 relief funds in a number of areas, from water and sewer improvements and rural broadband deployment to health and human services and public education. The commissions are set to meet throughout the interim between legislative sessions to ensure funds are properly distributed.
Lawmakers dubbed HB 632 “The Beast Bill” when it was first introduced, likening the process of distributing billions in unexpected federal dollars in a bit more than a month to building the budget in the same amount of time. Normally, the budget takes the duration of the session to be finalized.
During debate on the House floor, Garner said he was “extremely proud” of the work done by lawmakers and legislative staff in assembling HB 632.
“We’re getting ready to put this policy to work in our state,” Garner said. “Let’s put it to work and bet on the folks back home.”
Democrats also praised the plan, making special note of its inclusion of comprehensive broadband expansion funding, a long-sought after goal of the party.
“This is an opportunity you won’t see again in your legislative career,” said Rep. Jim Keane, D-Butte. “I would urge a ‘yes’ vote.”
The House passed the bill on an 86-12 vote.
Among the appropriations made in the bill for infrastructure, $460 million is set aside for sewer and wastewater improvements, $119 million for state-owned infrastructure projects and $275 million to help expand rural broadband. Funds to house and train Montana workers include $150 million in workforce development grants, $50 million for mortgage assistance, $11.5 million for low income housing aid and $152 million for emergency rental assistance.
Health programs funded by the bill include an additional $11 million for the supplemental nutrition assistance program, or “SNAP,” $10.5 million for substance abuse prevention programs, $112 million for child care block grants and $166 million for COVID-19 testing, contact tracing and vaccine distribution.
The bill also includes millions of dollars for public schools: $344 million in general aid for Montana’s schools, $7.6 million for summer enrichment and after school programs, and $9 million for the “Individuals with Disabilities Education Act.”
The advisory commissions created by the bill must hold their first meeting no later than June 11, 2021, so money from the grant programs could begin flowing mere weeks after the Legislature adjourns. The bulk of the federal funds can be spent through 2024.
The Senate approved the bill on a bipartisan, 43-7 vote without any discussion.
Montana Legislature Passes Ban on “Vaccine Passports, Discrimination”
The Montana Legislature passed a bill banning “vaccine passports” and restricting businesses from “discriminating” based on vaccine status Monday, April 26 -- despite warnings from the state’s largest medical association of potential permanent consequences from the decision.
House Bill 702 cleared the Montana House of Representatives Monday, April 26, down party lines after some Republicans said representatives from Gov. Greg Gianforte’s office assured them that warnings from the Montana Hospital Association that passing HB 702 would result in permanent masking in hospitals and limited visitation were not a problem. If signed by Gianforte, the bill would wholly eliminate private businesses’ ability to require vaccinations of any kind -- including vaccines that have been required to work in some establishments for decades, like the polio or measles shots.
Rep. Jennifer Carlson, R-Manhattan, sponsored the bill, which was a re-do of a bill she sponsored earlier in the session that died in the House. Carlson has repeatedly said the bills are not “anti-vax,” but instead support individual autonomy.
The bill would codify in law an executive order Gianforte issued just weeks earlier prohibiting the manufacture or use of vaccine passports in Montana. So far, four other states have done the same: Arizona, Idaho, Texas and Florida.
HB 702 and its sister bills drew support from anti-vaccination proponents, many citing unfounded claims of widespread injuries stemming from COVID-19 vaccines. In fact, experts have repeatedly reported coronavirus vaccines are safe, effective and have a low chance for severe side effects.
During a final debate in the House, Carlson offered assurances to lawmakers concerned with amendments made in the Senate that broadened the scope of the bill by striking a section that would have allowed businesses to require vaccines, so long as they continued to allow medical and religious exemptions.
“This bill in no way affects current law for schools and daycares’ immunization standards,” Carlson said.
Two Republicans traditionally aligned with the “solutions caucus” of moderate conservatives addressed lawmakers during the debate, saying they’d just come off a phone call with representatives from the governor’s office who reassured them that warnings from Montana hospitals about limited visitation would not be “an issue.” The Montana Hospital Association previously announced in a press release that some facilities would enforce permanent masking indoors and prohibit visitation if HB 702 passes, as staff would be unable to verify vaccination status.
Still, Rep. Llew Jones, R-Conrad, said that while he would support the bill, he had lingering worries over whether he would still be able to visit his mother, who lives in a long-term care facility.
“House Bill 702 causes me some grave concern,” Jones said on the House floor. “I would be remiss not to share that this would be a bad one to be wrong on.”
The bill first passed the House 67-33, but Gov. Gianforte sent the bill back to lawmakers with an “amendatory veto” -- suggested changes the governor said should be made to the bill. The new language, which the House accepted, allows hospitals to ask for a visitor or employee’s vaccination status, and take “reasonable measures” to accommodate the person if they are not properly vaccinated against certain diseases. The House voted 64-32 to accept the change, while did the same 31-19.
A companion bill to HB 702, however, did not make it out of the Legislature after the Senate defeated the measure on a 27-22 vote on April 23. House Bill 703, sponsored by Rep. Jedediah Hinkle, R-Belgrade would have expanded the circumstances under which vaccine passports are prohibited. Under the bill, verification of immunity could not have been required to receive “common life-sustaining goods such as food, child care products, and medication.”
Austin Amestoy is a reporter with the UM Legislative News Service, a partnership of the University of Montana School of Journalism, the Montana Broadcasters Association, the Montana Newspaper Association and the Greater Montana Foundation. He can be reached at austin.amestoy@umontana.edu
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