A rule to keep the Montana Legislature website from publishing legal notes flagging potentially unconstitutional bills cleared the Montana House Feb. 5 after a vote to strip the language from a broader rules package failed on largely partisan lines.
Legal notes are prepared by the Legislative Service Division in response to bills that raise potential conflicts with the state constitution or federal law. They’re currently posted along with bill text, fiscal notes and voting records on the Legislature’s LAWS website.
That’s likely to change, however, now that the Montana House has followed the Montana Senate’s lead in endorsing rules that say legislative staff can only publish legal notes at a bill sponsor’s request.
A push for keeping the legal notes on the legislative website, led by Rep. Tom Woods, D-Bozeman, failed on a 44-56 margin Feb. 5. All House Republicans voted against legal note publication except Neil Duram, R-Eureka, and Forrest Mandeville, R-Columbus.
Rep. Derek Skees, R-Kalispell, defended the measure by arguing the notes are intended to provide feedback for bill sponsors. It’s confusing, he said, for the notices to remain attached to bills as they move through the system even if sponsors have addressed the issue they raise.
“A lot of folks don’t understand the inside baseball that we play,” he said on the House floor. “We want to keep it to an internal function for us so we can fix our problems ourselves before somebody else can beat us up on something that we’ve fixed.”
Democrats have criticized the measure as an anti-transparency move. Legal notes, they say, should be treated like fiscal notes, which evaluate bills’ financial effects and are routinely referenced by legislators, media and the general public.
“The fact is that legal review notes are based on the law. And the law doesn’t care if you’re a Republican or a Democrat or an independent or no party,” said Rep. Kim Dudik, D-Missoula. “It’s an analysis about what the constitutional protections are and if there are constitutional issues in the bill.”
“There’s no reason that information should not be readily accessible to everyone,” she said.
Dudik, an attorney, also said that one of the bills she introduced this session, a measure aimed at regulating election mailings, was flagged with a legal review note she disagreed with.
“Everybody got to read it because it was publicly available,” Dudik said. “That’s what transparency in government is for.”
Nonpartisan staff attorneys for the legislature worried that Dudik’s measure, House Bill 139, would run afoul of the U.S. Constitution’s First Amendment speech protections. The bill died on its second reading in the Montana House Jan. 29.
Legal notes are prepared for comparatively small numbers of bills and don’t have a direct impact on how a bill moves through the House and Senate. The Legislature has the power to pass laws of dubious legality if it chooses, but in doing so opens the state to potential lawsuits.