Responding to Mike Marshall's letter

I want to respond to Mike Marshall’s letter, published in the Pathfinder on Jan. 4.

As I understand him, Mr. Marshall’s basic premise is that all or most of the dozens of bills passed by the Legislature that are being challenged in court are clearly unconstitutional.

Constitutional matters are not so simple, nor does the actual data support his argument. But it’s an argument that has also been made by others, such as Democratic legislators and activists, so I’d like to address it.

First, Mr. Marshall suggests the Legislature’s “legal vetting” measures are inadequate. Currently, attorneys working for the Legislature review every bill for potential constitutional conflicts. If staff identify a potential conflict (which is not the same as an actual determination of constitutionality), the bill gets a legal review note.

When we last ran the numbers, 77% of litigated bills did not have a legal review note. Of the bills that did have a legal review note, only 50% of them were being challenged in court. In other words, there’s been no real correlation between legal review and lawsuits filed.

Second, in our system of three branches of government, all three branches are responsible for upholding the Constitution. Sometimes, the branches don’t agree on what is (or should be) constitutional under the words of the

Constitution. Two examples where this has come into play on litigated bills are campus free speech and abortion.

A majority of the Montana Legislature has believed that, under the constitution, universities must follow the same laws that everyone else does. The Legislature passed a bill that banned colleges’ discriminatory practices among different types of student groups, arguing those policies violated students’ right to freedom of association. That bill was challenged and a court ruled that the Board of Regents (the entity that oversees colleges) has nearly total control over university campuses (including things not related to academics), effectively making the Board of Regents a quasi fourth branch of government. The judicial branch disagreed with the legislative on constitutional interpretation.

In 1999, the Montana Supreme Court ruled that there’s a (limited) state constitutional right to abortion, despite the fact that the word abortion doesn’t appear anywhere in the Montana Constitution and the 1972 constitutional convention delegates intentionally left that controversial issue out of the Constitution. Most conservative lawmakers think the court was wrong in 1999. Several abortion-related bills are under litigation, some of which directly challenge that court decision, and some of which were intended to comply with the 1999 decision if it stands.

Finally, here are just a few examples of bills under litigation that Mr. Marshall and others claim are clearly “unconstitutional”:

Clarifying state law against voting in more than one place (double voting)

Changing wolf hunting regulations

Pro-housing changes to zoning regulations

Reducing regulations on very small, local food producers

Changing the process for appointing judges (the Supreme Court ruled for the Legislature in that case)

Requiring that only biological females compete in girls’ school sports

Changing regulations on CO2 emissions

Making the deadline for late voter registration the day before an election (Montana law was similar years ago)

Requiring voter ID

Regulating recreational marijuana