Every bill introduced in the Montana legislature undergoes a legal review to determine whether or not it conflicts with existing state or Federal law, or the United States or Montana Constitutions. Most don’t, of course, but every once in a while one does, and in that case, our very busy and competent legislative attorneys write a “legal note,” attach it to the bill and post it on the legislative website. The idea, obviously, is to let the public and the legislators who will be hearing the bill know that, “Hey! There could be a problem here.”
Does that sound like a good idea to you? Do you think that if a qualified attorney says that a bill is potentially unconstitutional, the public and legislators, before they pass the darn thing, should know that? Yes? Well too bad for you, because yesterday the Montana Senate just tossed the whole process out the window.
What we did was pass, on a strictly party-line vote, a new rule that says that legal notes will be attached to bills and posted on the website only at the request of the bill’s sponsor. In other words, if a senator sponsors a bill to, say, blatantly restrict abortion rights, and a legislative attorney points out in a legal note that it conflicts with Roe v. Wade, no one will hear about it except in the unlikely event that the senator himself choses to tell them. True, if there is a legal note sitting in a file somewhere in the bowels of the Capitol, any member of the public and any legislator has a right to see it, but you have to figure out on your own that it exists, and then go look for it.
Why on earth would the majority force this rule change down our throats? Well, there was a lot of absurd talk about how other states don’t publish legal notes, as though a lack of transparency in, say, Texas, somehow justifies a lack of transparency here at home. And others reached the very grave conclusion that ultimately it was legislators that had to decide whether a bill was constitutional, which apparently they can do more easily if they don’t listen to the expert opinion of our pesky staff lawyers.
Let’s not kid ourselves. The legislators promoting this rule have brought bills in the past that were obviously unconstitutional and didn’t like it when the legal notes made that clear. So they’re killing the messenger.
But there’s another stunner here. Yesterday, I offered an amendment to the new rule that would have allowed not just the sponsor, but any member of the committee hearing the bill, or the majority or minority leader, to request that the legal note be posted and attached to the bill. I figured that anyone considering a bill would want to have the ability to assure that the public and other committee members were aware of legal problems with it, if there were any.
But no dice. Every single Republican voted against that amendment, and every Democrat voted for it. All I can conclude from that is that the Republicans don’t really believe that the Constitution is on their side.