Another Unconstitutional Republican Law Bites the Dust

One year ago the Republican-dominated Legislature cemented its place in history by passing more unconstitutional bills than any Legislature in recent memory. So far, more than 20 of the measures they passed and Republican Gov. Greg Gianforte signed into law have faced court challenges.

Late last week, Helena District Court Judge Mike Menahan ruled against Gianforte and Attorney General Austin Knudsen on SB319, sponsored by Republican Sen. Greg Hertz, tossing two provisions as unconstitutional and, as they say in the old song, “another one bites the dust.”

One has to wonder, given their record of ignoring the provisions of Montana’s internationally lauded and copied Constitution, whether the Republican legislative majorities consider the foundational document of our state’s governance to be simply words on paper. Certainly we’ve already had one of those legislators, Whitefish Republican Rep. Derek Skees, say “we need to throw out Montana’s socialist rag of a constitution.”

Skees and his like-minded pals are now finding out there’s a difference between their desires to gut the Montana Constitution and the reality that it has existed since 1972, continues to exist, and contains ironclad provisions for governance that may not simply be ignored to please clueless legislators who pass bills contrary to those provisions — and have a constitutionally-clueless governor sign them into law.

All of this is even more ironic when one considers that the article about the law being tossed as unconstitutional hit print on the same day its sponsor, Sen. Greg Hertz, had an op-ed column claiming the “GOP protects your rights and freedoms.” Truly, you can’t make this stuff up.

This would be the same Greg Hertz who recently admitted that the Legislature should have done something about the looming property tax increases that will clobber Montanans due to the skyrocketing increase in home values. “We probably haven’t reviewed them at the legislative standpoint that we should have,” Hertz told reporters when faced with the looming prospect of a constitutional initiative to freeze property taxes at 2019 levels.

Well, he sure got that one right. But instead of doing what “we should have,” Hertz and Co. were busy slapping amendments on HB319 in a Free Conference Committee in which no public testimony is allowed. So much for protecting our rights to, say, have a voice in the formulation of the laws under which we must live.

Moreover, not only weren’t the amendments related to the title of the bill, they were antithetical to Hertz’s claim of “protecting our rights.” As reported, one amendment “banned voter registration, signature collection, voter turnout and other activities by political groups in certain areas of university campuses.” The other “required a judge to recuse themselves if they received at least of half of the maximum individual contribution from a lawyer or party during the previous six years.” In short, they banned Montanans’ rights to support the judges we want or conduct political activities on college campuses — the exact place where lively debate on public policy should be taking place.

Perhaps after supporting the former president’s proclivity to tell more than 30,000 lies in his term, Montana’s Republicans think they can get away with simply telling us whatever they want and we’ll believe it.

But fortunately, the Montana Constitution also sets up a very real and intentional mechanism of checks and balances in governance. And in this case, like those before it and undoubtedly more to come, the judiciary still exists as an independent protector of our Constitution — and ensures when the Legislature passes unconstitutional bills they “bite the dust.”

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