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Montana Legislature made lots of late changes, without public comment

Montana Legislature made lots of late changes, without public comment

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Twice during the legislative session, minority Democrats mustered enough support from Republicans across the aisle to kill GOP bills aimed at ending continuous eligibility in the state’s Medicaid expansion program.

But at the end of the Legislature the policy was enacted anyway, folded into the appropriations bill for the operations of state government.

"This policy idea was thoroughly vetted ... and was defeated on a bipartisan vote because it's awful policy," said Rep. Ed Stafman, a Bozeman Democrat, in the waning hours of the session.

So how did the provision — which Democrats argue could kick the working poor off health care coverage and some Republicans say is necessary to prevent abuse of the program — resurface and end up becoming law?

The move came as a late amendment to the state budget, made in free conference committee where public comment isn’t generally taken because of a technicality: free conference committees don’t hold a hearing on a bill, they just debate amendments.

Under state law and legislative practice, meetings are open to the public but public input is only required for a bill hearing. That’s a different situation from executive action, when a committee can make amendments to and vote on a bill.

In past sessions there’s been building frustration over budget companion bills, which very frequently end up in free conference committees. Those are bicameral, bipartisan committees (though Republicans hold a majority of votes) that have broad authority to amend legislation.

Companion bills are meant to execute the state budget, but can also be vehicles to pass big policy changes late in the legislative session. In 2019, someone distributed flyers around the Capitol on bright pink paper that listed several companion bills with the headline "Just Trust Us," followed by the words "Really? Seriously? Do Friends Leverage Friends?"

But this session, companion bills weren’t the only game in town. The continuous eligibility elimination, for example, was first shoved into a companion bill, where it brought a lot of dispute on the Senate floor a few days before sine die.

“(The amendment) just gets on the bill the way things happen this time of year,”  Sen. Mary McNally, a Billings Democrat, said during debate. “We did have two policy bills that … tried to do away with continuous eligibility. They failed. So instead we’re getting it done through the budget bill and again without any public hearing or discussion. … It’s unfortunate we’re doing it and that we’re doing it the way we’re doing it.”

Across the aisle, Sen. Brian Hoven, a Republican from Great Falls, decried the process, not touching on the policy.

“It continues to happen session after session after session,” Hoven said. “We get down to this point of the year and make policy decisions that the policy committees are supposed to be making.”

Hoven told his fellow senators there was only one way to stop the maneuver — to kill the budget companion bills with policy jammed into them.

“It’s going to be this thing every session, session after session, until some of these companion bills are stopped and the policy decisions are removed,” Hoven said.

But that didn’t stop the train for the continuous eligibility termination this session. Even when the budget companion bill Hoven objected to last month was unexpectedly defeated, the provision found its way into the state budget.

There were a number of other bills with high-profile, major amendments added in free conference committees late this session. They were neither budget or budget companion bills, but regular policy bills that saw significant changes or the addition of previously voted-down ideas.

The number of conference committees and free conferences tends to fluctuate from session to session. Susan Fox, the executive director of the Legislative Services Division, said some of the more active ones have been the result of new administrations, as well as the type of legislation that defines a given Legislature.

“You’ve got a new sheriff in town, right? They’ve got what they campaigned on, they’ve got their philosophies and all that,” Fox said. “… There’s just a lot to iron out, and that’s what those conference committees really allow.”

There are also new department heads that lawmakers are working with, each with their own priorities in legislation they want to see passed.

And even with unified Republican control of the executive and legislative branches this year, the goals of the administration and House or Senate leadership weren’t always in perfect alignment. The mechanism to get a bill to a conference committee — free or otherwise — is for the originating chamber to object to changes made in the other house.

Looking back at the 2001 Legislature, which went through a stunning 124 conference committee hearings — including 80 free conferences — Fox said that while Republican Judy Martz was the new governor that session, the bigger influence was probably the extremely impactful legislation that went through the Capitol that year.

Among those were measures to address fallout from the state’s utility deregulation, school funding and what was known as “the Big Bill,” which “transformed the revenue and expenditures to and from local governments and required a lot of changes in laws regarding local governments.”

“Every session has its kind of unique, big-ticket issues, and I think the ones in 2001, that was an extraordinary session,” Fox said.

This session had more free conferences than any other session since 2011, coming in at 27 meetings. Free conference committees have the latitude to take up any changes to a bill, while conference committees must stick to the amendment in dispute. 

Overall, the past five sessions had roughly a similar number of both free and conference committees, ranging between 28-37.

To be eligible for a wide-ranging amendment, a bill needs to have a broad title because of a provision in legislative rules that an amendment must be related to the bill’s title.

That’s why House Bill 648, titled “Generally revise natural resource laws,” became the vehicle for a handful of major changes, including exempting the Colstrip power plant from certain provisions of the Major Facilities Siting Act. Another late amendment pays for an investigation into a decision by the Public Service Commission to block NorthWestern Energy from having consumers pay for a 2.5-month shutdown at the plant in 2018.

Sen. Chris. Pope, a Bozeman Democrat, said the late amendments to the bill, made in a free conference committee two days before the end of the session, came “fast and furious.”

Republican Sen. Brad Molnar, of Laurel, objected to them too, saying the changes were extensive and would have huge implications lawmakers didn’t fully understand when they were voting on them.

“It always happens the day before sine die, when nobody knows what is in it and why it’s here. Now the sponsor can’t tell us what the amendments do,” Molnar said.

Only four Republicans voted to amend the bill in the free conference committee, as Democrats were absent. While the amendment to use the state’s general fund dollars to pay for the study had some discussion, there wasn’t even an explanation of the amendment related to the Major Facilities Siting Act, just a rapid-fire vote.

In another bill, this time a budget companion bill related to the Department of Justice, another late amendment would have given the attorney general a broad mandate to investigate the composition of nonprofit groups, including how they're funded, how they engage on legislation and other political matters and how groups are involved in permitting or licensing efforts.

The amendment was put in by Colstrip Republican Sen. Duane Ankney, who also chaired the free conference committee on HB 648.

The amendment was stripped days before the end of the session by Rep. Bill Mercer, R-Billings, again not over the policy but the process of making late changes.

"This particular provision is something that wasn’t discussed and wasn’t something where we — not only did we not hear public comment — but I know we never entertained the idea" when the bill went through debate in hearings with public comment, Mercer said. "The reality is that it just didn't have any opportunity to hear from people who would be affected by it, members of the public, and I just think we need to strike it for process reasons without even getting into a discussion about substance."

In Senate Bill 319, titled “Generally revise campaign finance laws,” a late amendment barred politicking in the dorms, dining halls and other specific areas on university campuses. Previously the bill dealt with joint fundraising committees.

"In all the four years I’ve been here I’ve never seen this many bills that have been dead somewhere else come back in conference committee jammed in bill that had nothing to do with them," Rep. Geraldine Custer, a Republican from Forsyth, said in frustration when the amendment was made.

But Rep. Wendy McKamey, an Ulm Republican, objected to that characterization.

"I know this appeared on our desks very suddenly because that’s the nature of where we are and what the business is and what happens with free conference committees and other conference committees,” McKamey said. “Decisions are made quickly and dispersed as quickly as possibly it can be and we are expected as legislators to digest that information as quickly as we can. That’s our job. So I don’t apologize, this is the nature of the beast. This is where we are."

On the Senate floor defending a policy amended into the failed budget companion bill for the state health department, Republican Sen. Bob Keenan, of Bigfork, argued legislators had the ability to object to late policy amendments, but just in some cases.

After frustration over budget companion bills, Keenan said two years ago legislators amended their rules to allow a House member to kick a companion bill to a joint policy and appropriations meeting for a hearing. But that only applies to bills that start in the House and implement provisions of the budget.

“We did put that step in. Unfortunately two years ago, some crafty little devil decided ‘What if we did a Senate companion bill?’ That’s another way you can get around this system,” Keenan said.

Republican Speaker of the House Wylie Galt, of Martinsdale, said the late hearings were more a product of physical space in the Capitol than anything else.

“It was just with hearings still going on and looking for times to actually schedule free conference (committees), it’s almost like we had to get through the (standing) committee work to have the rooms and times to start working on the free conference,” Galt said.

— Reporter Seaborn Larson also contributed to this story.

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