When the Legislature Leaves Town, Litigation Follows

Anyone who’s ever seen a circus roll through town can tell you there are a lot of “droppings” to clean up behind the elephants. Montana’s legislative circus and the GOP elephant parade left town late last week and there are so many unconstitutional “droppings” it’ll take years for the lawyers and judicial system to clean ‘em up.

History will likely find the 2021 Montana legislative session passed more unconstitutional bills — and Gov. Greg Gianforte signed them into law — than any session in recent memory. In some ways, it’s understandable that the solid Republican majorities — and the GOP’s sweep of statewide elected offices — imbued them with the impression they had been given a mandate to do whatever they wanted. Add in the rage over having their head elephant tossed out of the White House by the American voters who’d had enough of his reality TV presidency, and it was a potent mix for some extremely poor judgment.

Unfortunately, that rage found its outlet in a host of measures that amount to little more than personal grievances given the power of law — at least for a little while. What they really could have used, however, was a serious tutoring in how government works in the United States, the reality of federal supremacy, and the necessity to adhere to the rights and limitations enumerated in both the state and federal constitutions.

It also wouldn’t have hurt for this particular session to have shown some respect for the real voice of the people as reflected in the electorate’s votes on citizen initiatives. Take the recreational marijuana initiative, for instance, that got more votes than Governor Gianforte. One might think, since they’re so fond of talking about mandates, they might have decided to put their personal biases against marijuana use aside and honored the “mandate” of citizen-approved distribution of tax revenues from its cultivation and sale. But no, despite the fact the citizens said they wanted significant sums to go to public lands, access and conservation, the “we know better” crowd diverted revenues to other uses.

Unfortunately, the marijuana initiative wasn’t the only one to suffer at the hands of GOP majorities. The nuclear initiative approved more than 40 years ago to ban nuclear power in Montana without a vote of the people was also brushed aside as if it never existed. They did the same to the decade-old initiative in which Montana’s citizens decided they didn’t want guaranteed big game licenses for out-of-staters, which wound up as road kill when the tone-deaf and voter-disrespecting GOP majorities rolled through.

Then, of course, there’s the bizarre idea that if the state passes an initiative, as it did with recreational marijuana, the legislature can simply decide it’s a law that can be nixed by a couple of county commissioners if the majority of the voters in their county didn’t approve it. The same couple of county commissioners can tell private property owners they can’t have bison on their property, whether they want them or not. Then there’s the GOP’s “heavy hand of government” interfering in private corporate contracts to “save” Colstrip’s outmoded and uneconomical coal plants.

And finally, these same politicians, who are so opposed to “federal intervention,” have actually invited it with their degradation of water quality laws, “nullifying” local law enforcement from implementing federal gun laws, voter suppression measures and discriminating against trans-sexuals.

The ink was barely dry on the bills Gianforte signed before the lawsuits started getting filed. Rest assured, there will be many more to come. And this, sadly, is what passes for Republican “leadership.”

George Ochenski is a columnist for the Daily Montanan, where this essay originally appeared.