Think tank policy and the 67th Montana Legislature

Jun 09, 2021

Montana Free Press

HELENA — Over the past six months, lawmakers across the country have transformed their respective legislative chambers into battlegrounds over emergency management and emergency powers — a charged response to the restrictions numerous governors put in place in bids to contain the COVID-19 pandemic. 

Just last week the Texas Legislature deadlocked on a bill requiring that the governor obtain legislative approval, via a special session, to extend a state of emergency beyond 90 days. A week before that, Pennsylvania voters approved constitutional amendments pushed by Republican lawmakers that limit emergency disaster declarations to 21 days and grant the Legislature exclusive authority to extend or end such declarations by a simple majority. According to the National Conference of State Legislatures, at least 14 states have enacted measures addressing legislative authority in emergency situations, including North Dakota, Idaho and Wyoming.

In Montana, the effort materialized in a slate of bills aimed at broadening legislative oversight. House Bill 230 granted the Legislature more authority to terminate, extend or modify a state of emergency declared by the governor, while House Bill 122 required that rules proposed by local health boards be approved by a local elected body. Both were signed into law, and were among a raft of bills this session that mirrored recommendations and model policies pushed by national third-party organizations with clear-cut political agendas. 

Emergency powers is just one of several issues that connect Montana’s recent session to a wave of Republican-backed policy proposals that has crested in statehouses across the country. Georgia, Alaska, Iowa, Florida, Arizona, New Jersey — nearly every state in the union has seen legislation touching on at least one of a long and diverse list of topics including local government control, transgender rights, voter access and the ongoing impacts of the pandemic. 

Last month, the investigative news outlet Mother Jones obtained leaked video of a presentation delivered by Heritage Action for America Executive Director Jessica Anderson to a private group in Tucson. In the video, Anderson explains how her organization, which is an affiliate of the national conservative nonprofit Heritage Foundation, helped lawmakers in Iowa and Georgia shepherd a swath of election administration bills through the legislative process. The effort was tied to a February Heritage Foundation report on “election integrity” and resulted in both states passing restrictive new voting laws. Those laws have since generated several legal challenges in both states from Democrats and voting rights advocates.

“They go for a few days and they’re in these hotels together with corporate lobbyists, discussing policies and voting as equals with these corporate lobbyists or trade association lobbyists or whatever. Their constituents do not get that same type of access, and these representatives and senators are not voted into office by special interests, they’re voted in by their constituents.”

David Armiak, research director at the Center for Media and Democracy

The same is true in Montana, where two separate lawsuits have been filed over recent changes to state election law. Those changes terminate same-day voter registration, narrow photo identification requirements for registrants, and mandate annual updates to county voter rolls. All three provisions are squarely in line with recommendations issued in the Heritage Foundation report.

While frustration among conservatives about Donald Trump’s 2020 defeat may have fed the proliferation of such proposals elsewhere, Sen. Steve Fitzpatrick, R-Great Falls, told Montana Free Press that particular conversation has long simmered in the halls of the state Capitol. He said he’s seen bills aimed at moving up the voter registration deadline “as long as I’ve been in the Legislature,” a tenure that stretches back to 2011. Fitzpatrick couldn’t say for sure whether outside influence played a hand in Montana’s new election laws, but he described their passage this year as the byproduct of a new Republican administration and “a reflection of the times.”

“This is nothing new in the Republican Party, to be concerned about voter identification, absentee ballots, late registration,” Fitzpatrick said. “President Trump put such an emphasis on it, but all he did was accentuate a talking point or a concern I think has been in the Republican Party for at least the last 10 to 15 years.”

Fitzpatrick was similarly skeptical about the level of influence this session of another well-known conservative agenda-setter: the American Legislative Exchange Council, or ALEC. The organization goes a step beyond many of its ally groups — a list that includes the Heritage Foundation and the Koch-funded advocacy nonprofit Americans for Prosperity — in that it has a long history of crafting model policy for dissemination and use by legislators who join its ranks. Scores of interest groups and associations take a similar approach, including the National Academy for State Health Policy and the National Association of Insurance Commissioners. The difference that watchdog groups frequently criticize is that ALEC bill models are developed in meetings of task forces made up of state lawmakers and industry lobbyists.

“They go for a few days and they’re in these hotels together with corporate lobbyists, discussing policies and voting as equals with these corporate lobbyists or trade association lobbyists or whatever,” David Armiak, research director at the Wisconsin-based watchdog nonprofit Center for Media and Democracy, told MTFP. “Their constituents do not get that same type of access, and these representatives and senators are not voted into office by special interests, they’re voted in by their constituents.”

ALEC is no stranger in the Montana Capitol. According to the Center for Media and Democracy’s ALEC Exposed project, dozens of Montana’s Republican lawmakers have joined the organization in the past, with several attending national ALEC conferences. Some of ALEC’s key policy goals have sprouted in past sessions as well, though few managed to bud. 

Pinpointing exactly which Montana lawmakers participate in ALEC events or on task forces is challenging, since the nonprofit does not disclose its members list publicly. Insights have only been gleaned through materials leaked to watchdog groups and public-facing ALEC activities such as letters on national issues voluntarily signed by member legislators.

“This is nothing new in the Republican Party, to be concerned about voter identification, absentee ballots, late registration. President Trump put such an emphasis on it, but all he did was accentuate a talking point or a concern I think has been in the Republican Party for at least the last 10 to 15 years.”

Sen. Steve Fitzpatrick, R-Great Falls

Heather O’Laughlin, co-director of the Montana Budget and Policy Center, said one consistent discussion point at past conferences has been calling for a convention of states to amend the U.S. Constitution. ALEC has specifically floated the notion as a way for state lawmakers to place fiscal restraints on the federal government, rein in federal power and impose term limits on members of Congress.

That issue has come up in the Montana Legislature repeatedly over the years, most recently in the form of two failed resolutions in the House and Senate this spring. O’Laughlin couldn’t say how engaged ALEC currently is on that particular issue, but added there has often been a clear connection between Montana lawmakers who attended ALEC conferences and in-state legislation calling for such a convention.

“Montana has voted down that resolution for the last four sessions,” O’Laughlin said. “But I think that was probably our first introduction to the work that ALEC has done in engaging individual legislators and moving legislation that is identical across many states.”

Two bills tackling alleged threats to religious and political free speech on college campuses this session crossed into territory that’s been well trod by ALEC. House Bill 218 aimed to eliminate so-called free speech zones on university campuses in Montana, while House Bill 349 prohibited universities from limiting a student group’s access to funding and campus facilities based on its activities or beliefs. Both bills were passed into law, and both echo portions of an ALEC model bill dubbed the Forming Open and Robust University Minds (FORUM) Act. HB 349 has since been challenged in court by the Montana Federation of Public Employees and a coalition of other organizations and individuals.

The sponsor of HB 218 and HB 349, Rep. Mike Hopkins, R-Missoula, did not respond to an interview request. But a week after the Montana Senate’s passage of HB 218, ALEC trumpeted the victory in a blog post claiming the bill was based on its own model. A review of emails exchanged during the drafting process for HB 349 revealed no direct mention of ALEC or the FORUM Act. However, the emails did show that the Montana chapter of Americans for Prosperity was heavily involved in the crafting of the bill, with one AFP email referencing a model policy and providing a definition of “harassment” identical to the definition contained in ALEC’s FORUM Act. 

“Last week, the Montana Senate unanimously voted to protect the First Amendment rights of students at public colleges and universities in the state by passing HB 218, legislation based on ALEC’s Forming open and Robust University Minds (FORUM) Act model policy.”

Andrew Handel, American Legislative Exchange Council

Last year, ALEC pivoted quickly to address pandemic-related issues through its model policy library. Among those new model bills was the Liability Protection for Employers in a Declared Disaster or Public Emergency Act. Proposed liability shields popped up in legislatures in Florida, Connecticut, Indiana and numerous other states, all promising varying degrees of legal protection to businesses and other private entities in the event someone was exposed to COVID-19 on their premises. Fitzpatrick succeeded in passing Montana’s own liability shield, Senate Bill 65, which Gov. Greg Gianforte had identified as a necessary and critical step in reopening the state. The spirit of the new law may echo ALEC model policy and the nationwide proliferation of such legislation, but Fitzpatrick said SB 65 was largely homegrown.

“I worked with the [Montana] Chamber [of Commerce] on it, there were some other business people who looked at it,” Fitzpatrick said, “but it was mostly driven by, I think, local interests, hospitals, doctors, health care providers, all the people that came and testified. They were concerned about COVID liability and how that’s impacting businesses.”

Fitzpatrick added that he did look to COVID liability legislation in other states for guidance, ultimately using language similar to a bill introduced in Iowa. That practice isn’t outside the norm for Fitzpatrick, who said that, as an attorney, studying other states’ laws affords him an opportunity to learn how courts have interpreted those laws and craft more stable legislation for Montanans. As for ALEC, Fitzpatrick said he’s not a member and did not utilize the organization’s model policy in drafting SB 65.

Rep. David Bedey, R-Hamilton, and Rep. Matt Regier, R-Kalispell, both said the same of their efforts on emergency powers. ALEC put out a model bill last year dubbed the Emergency Power Limitation Act, which broadens legislative oversight of executive orders and actions taken in response to emergency situations. Regier’s HB 230 accomplished exactly that, including barring the governor from sidestepping the law by declaring another state of emergency “based on the same or substantially similar facts and circumstances” as the first — a provision also contained in ALEC’s model. And emails between Regier and the Legislature’s Legal Services Division during the drafting process indicate Americans for Prosperity was involved with the crafting of HB 230 as well. But Regier said there was no model policy or national blueprint behind his bill, and that he has “not worked closely with [ALEC] at all.”

“A lot of legislators, including myself, were getting calls from businesses that had been shut down saying, ‘Why is my business not essential?’ and there was no answer to that,” Regier said. “Beyond whether they should have been essential or not, it was like, yeah, why does one guy get to unilaterally decide all this? Good government, whether it’s a pandemic or normal times, has checks and balances and more than just one guy’s input.”

Bedey said he worked with Regier to pick up where HB 230 left off, focusing more on the local level by sponsoring HB 121. He did, however, unsuccessfully carry another bill, House Bill 122, to similarly restrict the governor from declaring a state of emergency for longer than 60 days without legislative approval. Here again, Bedey said his motivation to take up policy proposals directed at pandemic-related concerns was inspired solely by his constituents and his experiences attending local health board meetings.

“None of my work was influenced by ALEC whatsoever,” Bedey said. “I worked that out independently based upon my own knowledge of what’s going on and talking to people in my own county.”

It’s impossible to determine definitively whether the similarity between several major proposals of the 67th Legislature and policy recommendations offered by national third-party groups is intentional, coincidental or merely a sign that Montana isn’t alone in facing the political collision of the pandemic, the 2020 election and a widening ideological divide. But the similarities do cut across a wide range of banner Montana issues, from transgender rights to the environment, and ALEC appears to have taken notice of the state’s embrace of its agenda, as evidenced by a recent announcement that ALEC staff will be traveling to Montana this summer to “discuss the issues that matter to you and your communities.” From what the Center for Media and Democracy’s Armiak has seen, the trend of model policy pushed by conservative groups nationally has far outpaced similar efforts on the left, and makes it more difficult for constituents to identify the true sources and agendas of laws impacting their lives.

“There’s a lot of right-wing think tanks which are producing model legislation or cookie-cutter legislation and pushing it out,” Armiak said. “So it’s become more difficult to sort of figure out where exactly some things are … where their exact origin might be. But once you see, once you think about what their purpose is, then you can have a better idea and narrow down where it might be coming from.”

Montana Budget & Policy Center

Shaping policy for a stronger Montana.

MBPC is a nonprofit organization focused on providing credible and timely research and analysis on budget, tax, and economic issues that impact low- and moderate-income Montana families.