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A breakdown of the latest action we’re watching in the Statehouse, produced by Montana Public Radio, Yellowstone Public Radio and Montana Free Press. Find new episodes every Monday when the 2023 legislative session kicks off in January.

The Session: Last-minute bills, LGBTQ rights and a jungle primary

Last week was another major deadline for lawmakers to pass bills out of one house and send them to the other. We saw hundreds of bills move through both chambers, and saw a push from lawmakers to introduce new legislation in time to meet that deadline, including some that opponents say would have a "chilling" effect on legal challenges to state decisions, and one that would create a jungle primary in Montana — but for only one race.


Mara Silvers: We are approaching the 71st day of the 90 day legislative session. Last week was another major deadline for lawmakers to pass bills out of one house and send them to the other. We saw hundreds of bills move through both chambers and saw a push from lawmakers to introduce new legislation in time to meet that deadline.

Sen. Ryan Lynch: Let's just call this bill what it is. It's nothing but a partisan power grab.

Mara Silvers: This is The Session. A look at the policy and politics inside the Montana State House. I'm Mara Silvers with Montana Free Press.

Shaylee Ragar: I'm Shaylee Ragar with Montana Public Radio.

Ellis Juhlin: And I'm Ellis Juhlin with Montana Public Radio.

Mara Silvers: Ellis, you've been following some bills that were introduced in the days leading up to that latest transmittal deadline that would affect how individuals and groups like nonprofits can bring lawsuits against the state. What exactly would that legislation do and why is it a big deal?

Ellis Juhlin: Yeah. So for today, I'm going to focus on two bills that would add new financial hurdles as well as some logistical challenges to the process of legally challenging the state. One of those is from Senator Greg Hertz. He's a Republican from Polson, and it specifically targets nonprofits. So Hertz's bill would make it so that all funds spent on litigation would no longer fall under an organization's tax exempt status, meaning that any money a nonprofit gets that would be applied to their legal fees would now be subject to state income tax. This also includes people making donations to these nonprofits could no longer have them as tax deductible. Hurt says that since the state is spending taxpayer dollars to defend itself, it's only fair that nonprofits are being taxed as well.

Sen. Greg Hertz: The donors to these corporations who are suing us they get a tax deduction and are probably saving 30 to 40% of their income taxes when they make that donation. And then we have to sit here and defend it in the state house to defend it, costing taxpayers even more dollars.

Ellis Juhlin: And then Senator Mark Noland, a Republican from Bigfork, has a bill regarding MEPA, the Montana Environmental Policy Act. And Noland's bill would require that whenever someone wants to sue the state over MEPA decisions that could be an individual or a nonprofit, they have to pay for the cost of compiling materials for court, post bonds for any financial losses that the company might incur while a case is playing out over a proposed development project and prove that they're likely to win.

Noland's bill has been backed by mining and petroleum interest groups, while opponents include environmental groups and the ACLU of Montana. Opponents argue that MEPA is one of the only times that citizens can be notified of proposed developments like these in their area. And legislation like this one could really interfere with that public disclosure. And Hedges, with the Montana Environmental Information Center talked about this a bit more during the bill's committee hearing.

Anne Hedges: What this bill does is it makes it pay to play. It has a chilling effect on people's ability to know what government is doing.

Mara Silvers: Have lawmakers explained their reasons for bringing this legislation?

Ellis Juhlin: So Hertz and Noland's bills are among several from lawmakers that are aimed at what they say is reducing frivolous lawsuits. But nonprofit organizations and the lawmakers that have opposed these bills have responded to this by saying that court is really the one place where there's a level playing field. And many groups outside of just nonprofits have used the MEPA process in particular to bring litigation. Democratic Senator Janet Ellis from Helena talked about that on the floor last week.

Sen. Janet Ellis: But there are some stock growers associations, some balanced use organizations, some water user associations, some water and sewer associations and even individuals and county governments that have taken government agencies to court because they didn't agree that the correct decision was made.

Ellis Juhlin: So now both of those bills have passed in the Senate and are headed to the House. And there have also been some concerns with public notice regarding these bills for Noland's bill. The text was made available the night before its first hearing, which was scheduled at 8 a.m. that next morning.

Mara Silvers: Shaylee, on that point about bills coming up kind of late in the game. You've been tracking a couple of election related bills that have gotten a lot of attention, especially ahead of the 2024 elections. What's going on with those?

Shaylee Ragar: Yeah, I've been watching Senate Bill 566 that would create a jungle primary for just the 2024 U.S. Senate race that's being carried by Senator Greg Hertz who you heard at the top of this episode. He's carrying a lot of legislation this session. Right now in Montana, voters cast ballots in political parties, respective primaries, and the top candidate from each advances to the general election. So in some races, that has included a Democrat, a Republican and a Libertarian. Hertz's bill would say that instead, only the top two candidates who receive the most votes overall can advance regardless of party. That bill went on to pass the full Senate on a narrow 27 to 23 vote.

Mara Silvers: Let's back up a second. You said this bill will only affect the 2024 U.S. Senate race. Why is that?

Shaylee Ragar: That's right. And 2024 is going to be a huge election year with every statewide and federal race on the ballot. But this bill is narrowly tailored to just one. Senator Hertz argues that this would be a whole new primary system for Montana, and it requires a test run. So he only applied it to one seat up for election and tacked on a 2025 sunset date. He also points to the six year term that U.S. Senators serve and says they should have to win more than 50% of the vote to get to those seats.

Sen. Greg Hertz: We want to make sure that the winning U.S. Senator has more than 50% of the support of the people of Montana.

Shaylee Ragar: But Democrats aren't buying that, as Montana will host one of the most competitive, most watched Senate races in the country in 2024.

Mara Silvers: And to be clear, we're talking about U.S. Senator Jon Tester, who's running for reelection in that year and doesn't yet have an identified challenger.

Shaylee Ragar: Yes. And Tester is the only Democrat still holding statewide public office in Montana. He's up for reelection. His seat has been identified by political analysts as one of three vulnerable to a Republican flip, which would end Democrats' majority in the U.S. Senate. Tester is running in a state that is leaning harder and harder to the right, but is seen as a strong incumbent who Montanans have been electing to office for more than two decades now.

So during floor debate in the state Senate, Democratic legislators argued that Hertz's bill is targeting Tester. It would likely leave Libertarian candidates off the ballot, who often pull voters from the Republican Party. In 2012, Tester was elected to the U.S. Senate with less than 50% of the vote because a Libertarian was also in the race. But Democrats argue that the same is true for Republican Congressman Ryan Zinke, who won in 2022 against a Democrat and a Libertarian. But the U.S. House races aren't included in Hertz's bill.

Senator Ryan Lynch, a Democrat from Butte, did not mince his words when speaking in opposition.

Sen. Ryan Lynch: Let's just call this bill what it is. It's nothing but a partisan power grab.

Mara Silvers: Senator Hertz has another bill that would change the election process to right.

Shaylee Ragar: He does. That's Senate Bill 656. And this bill would increase the number of signatures a minor party candidate needs to collect in order to get on the ballot. A recent example of this would be U.S. House candidate Gary Buchanan, who got on the ballot as an independent in 2022, challenging incumbent Republican Representative Matt Rosendale in the Eastern District. Hertz says the bill raising the threshold to get on the ballot will curb what he calls the weaponization of minor party candidates to try to edge out major party candidates.

Like I mentioned previously, Libertarian candidates have been known to pull voters from the Republican Party. That bill also narrowly passed out of the Senate 26 to 24, meaning all Democrats and some Republicans voted against it. Democrats argued it's unfair to third party voters and further entrenches a two party system in Montana. Both of Hertz's bills will now move on to the House of Representatives for consideration, so I'll be tracking them there.

And Mara, last but not least, there has been a ton of movement on bills affecting LGBTQ people and civil rights in the last couple of weeks. Can you catch us up to speed on those?

Mara Silvers: Yeah. Let's start with Senate Bill 99, which is maybe one of the most high profile bills in this category, this session. It would ban gender affirming care for transgender minors, including puberty blockers, cross-sex hormones and for older adolescents, some surgeries that might help with their transition like mastectomies or top surgeries. That bill cleared both chambers in the legislature, largely along party lines and is en route to Governor Gianforte's desk.

We really don't know where Governor Gianforte stands on this issue. He and his staff have mostly declined to comment on the specifics of the bill and whether or not he intends to sign or veto it. But reporters did get to ask him a few questions about it during a march news conference, and we eventually got to this answer.

Gov. Greg Gianforte: You know, I've met with transgender parents, transgender children. We need to make sure everybody's voice is heard as we make a decision on this bill. When it gets to my desk and we're still collecting that input.

Shaylee Ragar: There are a few other bills to talk about here, too. A ban on trade shows and a bill to define sex based on a person's reproductive system. What's going on with those?

Mara Silvers: Yeah, the first of those House Bill 359 was up for a hearing last week in the Senate Judiciary Committee, and there was a big disparity in turnout from proponents and opponents. We only saw seven proponents speak in favor of the bill and 59 opponents who turned out against it. One of those people was Donald Stucker, who said as a drag performer and a producer of drag shows in Montana that this bill would really negatively impact the LGBTQ community, and especially minors who are looking to connect with their community.

Donald Stucker: Drag is for everyone. It's not harmful, and legislating anything to the contrary sends a clear message to queer youths that they need to hide who they are. It's a dangerous message for youth in my community to see, which is why I am opposed. And I would encourage you to vote this down.

Mara Silvers: Now, the sponsor of the bill, Republican Representative Braxton Mitchell of Columbia Falls, disputes that. He told the committee that drag is generally inappropriate for minors and that he doesn't believe there is such a thing as family friendly drag performances. He also said that drag can give minors inadequate perceptions of gender roles that can be confusing to their social development. We haven't yet seen a vote on that bill, but it could happen early this week.

And on Senate Bill 458, the bill to define sex, that has passed out of the Senate but hasn't yet had a hearing on the House side. It has been referred to the House Judiciary Committee. There are some rumblings from Democrats and lobbyists about trying to get enough votes to move it to another committee where it might have a better chance of being killed or tabled. But I will say that was also a strategy with Senate Bill 99 earlier in the session, and the motion to re-refer ended up failing on party lines. So we'll see if Democrats decide to try something similar in the coming days.

Mara Silvers: Before we go, we've seen another procedural deadline come and go. So any constitutional amendments and any bills that appropriate money that haven't advance from one chamber to another are effectively dead. No new bills can be introduced. More deadlines are also coming up for amendments to general policy bills and for study bills to advance. And lawmakers voted last week to extend those deadlines and the whole session by a couple of days. We'll leave it there for now. This has been The Session, a preview of the policy and politics inside the Montana State House. Thank you, Shaylee and Ellis, for joining us.

Shaylee Ragar: Thanks.

Ellis Juhlin: Thank you.

Mara Silvers: We'll talk to everybody next week.