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Montana Legislature Hears Flurry Of Bills As Mid-Session Deadline Approaches

Montana's two senators are split on their support for the first Native American to be nominated to a Cabinet post. And the state Legislature is hurtling towards its mid-session break with a flurry of bills addressing abortion, transgender surgery and tax cuts, among others.

Listen now on Capitol Talk with Sally Mauk, Holly Michels and Rob Saldin.

Sally Mauk Rob, Montana's two senators are predictably split on how they plan to vote on President Biden's nominee for Secretary of the Interior, Deborah Haaland. Senator Tester will vote yes. Senator Daines says no because she's too, "radical." Haaland would be the first Native American to hold a cabinet seat. And this is a very big deal to Native American tribes around the country and in Montana.

Rob Saldin Right Sally. Yeah, and certainly not a surprise that Tester's supporting her and not really a surprise that Daines is opposed either. Haaland's position on fossil fuels is probably the most substantive reason for his opposition.

Daines has positioned himself as a leading defender of the oil and gas industry and has received over $1 million in campaign contributions from it. He's also talked about the loss of 60 temporary construction jobs associated with the shutdown of the Keystone pipeline, and things like this.

But there's also been this attack on her personally, one the Daines has perpetuated. One of the charges is that she's overly partisan and an ideologue, but that seems to be a little overdrawn. As a member of the House she actually has a strong record of bipartisanship working with her Republican colleagues.

Another concern we heard a lot from Daines is that she's, to take another one of his words, "divisive." And that allegation is just a little harder to take very seriously, given that Daines, you know, literally found nothing that was concerning or divisive about the previous administration.

But you're right, Sally, this is a historic nomination. Haaland will be the first Native American cabinet secretary and Daines' prominent opposition is probably going to be noted in those communities. And those are actually communities where he has enjoyed some support in the past, particularly with the Crow Tribe, and given his work on that water compact up in the Flathead with the Confederated Salish and Kootenai Tribes. But that is certainly not his base. And he also just won reelection, so he's got nearly six years before he has to face the voters again. And by the time that rolls around, this will have been long, long ago.

Sally Mauk Holly, there are several bills designed to limit a woman's access to legal abortion, and they appear on their way to the governor's desk. And it's expected that he will sign some, if not all of them.

Holly Michels Yeah, there were four bills that passed an initial reading in the Senate on Thursday. And like you said, during his State of the State address in January, Gianforte did tell lawmakers he supported specifically two of those bills. One of them is a bill that would ban abortion after 20 weeks gestational age.

The other is the so-called Montanans Born Alive Protection Act. That was actually a referendum. So Gianforte wouldn't sign that bill, but it would go to voters in 2020 and ask them to approve or deny this proposal that says infants born from a failed abortion would have to be given medical care. Important to point out, there are already laws against infanticide, and abortions after 21 weeks gestational age are incredibly rare. There's one wrinkle with that bill. Republican Senator Dave Howard this week introduced another bill that would do the same thing as the referendum, but it would be through a bill that would be effective upon its passage and signing by the governor, not as something voters would weigh in 2020 on.
And Gianforte's policy director did speak in support of that bill when it had its initial hearing this week. The other two bills that are moving through; one would require women be informed of the opportunity to have an ultrasound before an abortion. And the last one would require informed consent, which would have doctors be required to inform women of the risks associated with an abortion that's induced by medication. Supporters of those measures say they would help women. Opponents are arguing that they would just put additional hurdles in the way of accessing an abortion and that women can already be trusted to make their own decisions without additional input. That referendum was amended in the Senate. So it's going to head back to the House, which is where it started, to approve those changes. But the other three are going to most likely end up on Gianforte's desk.

Sally Mauk Well, also in the house, Holly, there's another attempt to limit some medical procedures for transgender youth after a first attempt at this failed. And this bill would penalize doctors who perform gender affirming surgery on trans minors. Republican John Fuller is sponsoring the bill and had this to say.

"Children should be free from either parental, peer or cultural pressure to deal with their gender confusion by starting down a one-way road to lifelong medical intervention."

Sally Mauk And this bill is opposed by many in the medical community, including Dr. Aaron Grantham, who said this:

"Trying to legislate medical care in an area as complicated as this can be a little bit dangerous."

Sally Mauk Well, dangerous or not, Holly, this bill is passed the House and is on its way to the Senate.

Holly Michels It is. And it's interesting, like you said, it is a redo of legislation that the House had previously voted down. The main difference is this iteration, it doesn't have provisions that were in the defeated bill that would have also blocked puberty blocking medications and hormone treatments. Fuller said for both bills that his intent is to protect children. He was an educator for years and he's saying he doesn't think minors are able to make these types of decisions because they're not mature enough, so the state has an interest in stepping in.

But like we heard from that doctor and many other opponents to this bill; One, these types of procedures just aren't performed in Montana. They're also not best medical practice for minors. And overall, gender affirming surgery is not very common, even among adults. About a third of transgender people do end up having some sort of surgery.

Opponents also raise concerns that because of the penalties for doctors that are in these bills, it would stop doctors from providing certain types of care in situations that the bill isn't even targeting.

Other people, we've heard some pretty intense personal stories that people are sharing in opposition to these bills, that included one person who talked about someone who attempted to die by suicide, specifically because this bill was revived. So this, we've gone through this once before. Now this bill is on the way to the Senate. We haven't heard from the governor on how he'll act if this bill clears the Senate and heads to his desk. So we'll be watching it as it moves through and see if it makes it all the way across the finish line.

Sally Mauk Meanwhile, Rob, the U.S. House this week passed the Equality Act, which prohibits discrimination based on gender identity. So one has to wonder how, if that becomes federal law, -- and it's a big if -- how Montana's bill would hold up.

Rob Saldin Yeah, right, Sally. It would add that to the 1964 Civil Rights Act. And so there's no doubt this is playing out in this larger national context. It does look to me like the Equality Act doesn't have much of a chance in the U.S. Senate, but notable nonetheless that it was passed in the House.

One of the more interesting aspects to it is that I do think it exposed something of a split within the Republican Party over why they're opposed to it, right. we got a little insight into that. You have some who I think are, you know, in the case of the Montana legislation, for instance, just genuinely concerned that young people might be making decisions about this stuff that they haven't really thought through and that they'll come to regret later, and so it's therefore wise to at least have these individuals wait until they reach legal adulthood before making such consequential decisions. More generally there are also some good faith concerns about implications for religious liberty. But then you also have increasingly this emboldened wing of the Republican Party that's kind of epitomized in this Congresswoman Greene, who put up a sign outside her office door in Congress kind of trying to get in the face of one of her colleagues across the hall who has a transgendered child. And so you see these kind of cheap, performative theater things showing up increasingly. And it's not something that has necessarily a clear policy end game, right? This Congresswoman Greene isn't trying to engage on the level of public policy, but it's more just these performative gestures. But that does tell you a little bit about where these people are coming from. And so we do see this tension that has been noted in a lot of areas, again, between sort of people who do have these policy concerns that you may agree or disagree with them on that. But then there are also these, just kind of, people who are concerned about 'owning the libs.' And so that is a little bit of a divide that surfaced within the GOP over this.

Sally Mauk Holly, a series of tax cut proposals the governor favors are moving through the Senate. And here's how Republican Senator Greg Hertz described the purpose of these bills.

"The objective there is to attract more businesses into Montana with higher wage jobs."

Sally Mauk But Democrats like Senator Edie McClafferty say the cuts will only help people who are wealthy, not the majority of Montanans.

"At a time when Montana families desperately need help, this bill does nothing for them."

Sally Mauk The Republicans are winning the argument, Holly. These bills are passing on party-line votes.

Holly Michels Yeah. These three major parts of the governor's tax cut proposal, like you said, are sailing through with mostly Republican support. This first one would drop the state's top marginal income tax by 0.15 percent. And it's legislation Republicans are saying will save taxpayers about $30 million and touch about half the taxpayers in the state. Gianforte's argument is that Montana's income tax rate is not competitive and that's deterring people from locating here compared to other states in the region. But it is worth pointing out those states have much different tax structures, mainly that they often have sales taxes, and we don't. Like we heard from McClafferty, Democrats say that a lot of these proposals, like that income tax reduction, won't really have a huge effect on lower and middle income people. We heard on the Senate floor that a person earning $34,000 a year would see a tax cut of about $12.

The second piece of this package is a pretty complex trigger bill that would also institute more cuts to that top income tax bracket in situations where there's surplus state revenues, and then if there's a series of tests that are met that measure the state's financial well-being. Gianforte's made clear that he wants to cut that income tax rate much more than he's proposing in the first bill, but that he recognizes that we're in a pretty tight budget situation this year because of the pandemic. So that triggers bill is a way to sort of get at that over time. The bill, it's kind of interesting, expires in 2025, but any cuts made under it would remain permanent. Democrats, again, are arguing that that would benefit the wealthy and also saying it would put the state in a position where if there's an unexpectedly bad revenue year and we have cut income tax rates, we wouldn't really be able to pull out of that.

The last bill is one that would exempt some businesses from paying capital gains taxes if they meet certain measures for starting an operation in the state want to sell after a certain amount of time. This is another thing Republicans are saying would be a lure for job creators. Democrats and people opposed to the bill are arguing that the data really doesn't show that such measures actually attract people to Montana. That's more our outdoor recreation opportunities and lifestyle. We do keep hearing with all of these measures comparisons to states, specifically Kansas, which took much more drastic measures to cut taxes and saw some pretty huge negative outcomes from that. The Republicans are countering that Montana's approach is much more measured, so we won't see that same fallout here. Democrats try to flip that argument by saying that because the changes here are more incremental, there won't be as much benefit to them. So I think it's fair to say these bills are moving through with a Republican majority likely expected to get to Gianforte his desk.

Sally Mauk Next Wednesday, March 3rd, is the deadline for non-money bills to be transmitted from one chamber to the other. And that's always a hectic rush, Holly. But, boy, they've really been jamming a lot of bills through hearings and floor sessions this week, and will be first half of next week as well.

Holly Michels Yeah, to be honest, it's pretty exhausting this week up here. On Monday morning we started at 7 a.m. with the House Judiciary Committee that heard 20 bills and one day; Started at 7 and went to almost 7 at night. And there's been aggressive schedules like that all week to get things through on transmittal. I think it's important to be talking about that. There's a lot of bills, but there's also some really major policies that are moving through. Some of it's pretty heavy stuff that is fairly unlikely, even if it wasn't heard on such a tight timeline, to clear, just because of how the Republican majority and their appetite for some of this legislation. But some of it's some pretty weighty changes to how the state responds to pandemics. That is happening on a pretty tight timeline up here.

Sally Mauk The session is careening toward its mid-session break and we'll talk about that more next week. Holly and Rob, thanks.

Capitol Talk is MTPR's weekly legislative news and analysis program. MTPR's Sally Mauk is joined by Lee Newspapers State Bureau Chief Holly Michels and UM Political Science Professor and Mansfield Center Fellow Rob Saldin. Tune during the legislative session Fridays at 6:44 p.m.,via podcast or listen online.
Copyright 2021 Montana Public Radio. To see more, visit Montana Public Radio.

Retired in 2014 but still a presence at MTPR, SallyMaukis a University of Kansas graduate and former wilderness ranger who has reported on everything from the legislature to forest fires. She also taught broadcast writing and reporting in the University of Montana journalism school.
Holly Michels
Rob Saldin