Why You Can’t Run Government Like a Business

For years we’ve all heard politicians claim they should “run government like a business.” But of course government isn’t a business — and governance is not like selling software. You’d think he’d learn, but Governor Greg Gianforte just found out again that he can’t simply ignore the Montana Constitution’s right-to-know provisions by trying to keep secret information that was produced by public employees in public buildings being paid public funds.

The latest blunder by our “business” governor concerns reviews and opinions issued by his administration’s lawyers and agencies about the constitutionality of certain legislation during the 2021 legislative session. As most Montanans know, that dark session produced a record number of laws that have already been ruled unconstitutional by courts.

Now comes District Judge Kathy Seeley’s bluntly-worded Order in a lawsuit brought by Montana citizen Jayson O’Neill, who correctly believed that citizens should have access to the documents produced by our own government.

In a nutshell, and as reported, the Montana Constitution is crystal clear about what government may and may not keep secret from the public. Article II, the Declaration of Rights, reads: “Right to know. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.”

Obviously, the documents in question, produced by the Gianforte administration, are about pending legislation. There isn’t the faintest evidence that “the demand for individual privacy clearly exceeds the merits of public disclosure.”

Given the plain language of the Constitution, Gianforte tried to claim the documents somehow could be kept secret under “attorney-client” privilege. If you think you’ve heard that lame excuse before it’s because it was one of the losing arguments, along with “executive privilege” made by former president Trump in his numerous failed attempts to keep his dark and dirty deeds from being revealed to the public he swore to serve.

But as Judge Seeley wrote: “If Montana courts were to recognize the kind of privilege the governor has described, it is unclear whether any documents in the governor’s control would remain subject to disclosure. Recognizing broad executive privileges would effectively gut the right to know as it applies to the executive branch because every document may inform the governor’s decision-making in some way.”

Continuing, Seeley pounded the last nails in the coffin of Gianforte’s pitiful argument, writing: “attorney-client privilege raises special concerns when the client is a government entity,” and should not be used “for public bodies and government agencies to impede transparency” adding: “It obstructs the truth-finding process” and “creates a conflict between the executive and the people.” Nor, Seeley wrote, does Montana’s constitutional right to know “impede the governor’s ability to exercise his duties.”

Indeed, the governor’s “duties” are not to make a profit for himself and his corporate shareholders as he did in business. Rather it is to serve the people of the state and uphold his oath of office to protect and honor our Constitution.

Were Gianforte still in business, he’d be able to hire and fire, keep secret the advice he receives, and ignore the Montana Constitution’s right to know. But he is not. Montanans owe a debt of gratitude to Jayson O’Neill for bringing the suit and Judge Seeley for her incredibly clear ruling. When businessmen or women decide they want to seek public office, they should understand that the public is not their “customer” and the rules of business do not apply to governance. About time Gianforte got that straight — or went back to private business.

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