Montana: The story behind the score

By Dennis Swibold

More than a century has passed since copper barons like William Andrews Clark made Montana synonymous with corruption.

Clark’s flagrant bribery bought him a U.S. Senate seat at the start of the 20th century, a time when U.S. Senators were still picked by state legislatures. Although his behavior shocked the nation, he refused to apologize. “I never bought a man who wasn’t for sale,” he quipped.

Reforms followed slowly. In 1912, voters frustrated with a legislature and political system dominated by the Anaconda Copper Mining Co., seized the power to make laws, and among their first was a ban on corporate donations to candidates and political parties.

Bigger changes came six decades later, in 1972. Working beneath the Capitol’s copper dome and within strolling distance of Anaconda’s once notorious “watering holes” for legislators on Helena’s Last Chance Gulch, a grassroots convention framed a new constitution featuring one of the nation’s strongest “right to know” provisions.  A scandal that year prompted stricter disclosure of campaign finances and an ethics code for state employees. Tougher controls over lobbying soonfollowed.

Today Montana enjoys a reputation for open government, due in part to such laws and the scrutiny bred by intense political rivalries. It also may reflect the difficulty of keeping secrets in a state with fewer than 1 million residents and a state government workforce of fewer than 12,000 employees.

But the reality in Big Sky country doesn’t always match the image, in part because finding money to boost transparency is a tough sell in light of more basic needs like schools and services for the poor.

Partly as a result, access to public records varies by agency and sometimes lags behind advances in information technology. Weak disclosure requirements and inadequate staffing frustrate efforts to monitor lobbying and track the assets of officials responsible for overseeing public funds.

Ethics laws suffer from ambiguity and weak enforcement, and a rash of top-level hires by the current administration has raised questions of cronyism. Meanwhile, the state’s ban on corporate campaign contributions and its tough disclosure requirements for campaign financing are under legal attack.

And so Montana is not among the leaders in the rankings produced by the State Integrity Investigation. Far from it.  In fact, the state receives a letter grade of D+ and a numerical score of 68, ranking it 27th among the 50 states.

Access to public records

The Internet continues to shrink the vast distances that separate most Montanans from the state capital.  Citizen access to records, reports, audits and budgets has never been greater, but problems exist.

Journalists report generally good compliance with public records requests but efforts to obtain raw data, such as payroll and campaign finance information, often meet resistance.

When a conservative think tank recently offered to pay programming costs to analyze total compensation paid to state workers, officials balked, saying they had no obligation to re-program existing data to satisfy the public’s curiosity.

The denial prompted a successful lawsuit and criticism from the think tank’s president, who called Montana’s laws on electronic records outdated.

"They were written in the 1980s when fax machines were cutting edge," said Carl Graham, president of the Montana Policy Institute. "There's no teeth. You can get stonewalled very easily."

In other areas, the reality of public access to electronic records has barely sunk in. Slowed by a lack of funding and privacy concerns, Montana’s justice system has yet to develop a statewide database allowing uniform electronic access to records housed in dozens of far-flung county courthouses.

In fact, Montana’s Supreme Court recently suspended rules it had adopted four years ago to guide county officials in the consistent handling of public records requests.

Progress is slow but steady on other fronts. The state now offers searchable access to the financial reports filed by candidates, political committees, lobbyists and those who hire them.

But it still lacks a searchable database that would allow citizens to look up individual contributors or analyze the raw data. Efforts to require electronic filing by candidates for statewide and legislative offices might help.

Perhaps the state’s best effort at transparency and access has been the legislature’s expanding online presence. Citizens with broadband access can follow floor sessions and key committee hearings via streaming video and audio. They can track bills and votes; view schedules, minutes and agendas; and follow audits, budget reports and the work of interim committees.

Lobbying disclosure

The public’s window on lobbying is clouded by weak disclosure rules, enforcement that depends on actual complaints and Montana’s failure to monitor the lobbying of executive-branch departments.

Exemptions and narrow definitions of what constitutes lobbying effectively limit the practice to “face time” with legislators in the Capitol, an interpretation that excludes much of the real action.  

During the 2009 regular legislative session, members of the Senate Agriculture Committee were invited to a private dinner with representatives of the biotech giant Monsanto and a group calling itself “Growers for Biotechnology.” Both were opposed to a seed-testing bill that would eventually die in committee.

Monsanto never testified on the bill. Neither the company nor Growers for Biotechnology, which reportedly paid the check, were registered as lobbyists. Nor were they required to, unless each had spent $2,400 lobbying that session. The dinner never appeared as a lobbying expense.

The short-staffed agency responsible for overseeing lobbying has trouble monitoring the records it does have. This summer, while probing a two-year dispute over what defines lobbying by private citizens, officials discovered that the National Rifle Association had failed to register or report its lobbying for the 2009 legislative session.

Statehouse reporters and others veteran political observers were unanimous in their frustration with Montana’s weak lobbyist disclosure law and its inability to audit compliance. They have little confidence that lobbying reports accurately reflect the extent of lobbying that occurs during legislative sessions.

“It’s a joke,” said John Adams, who covers state government for The Great Falls Tribune.

Lee Newspapers reporter Charles S. Johnson, the dean of Montana’s statehouse journalists, reports on the top-spending lobbies after each legislative session. The numbers come straight from lobbying reports, but Johnson doubts their accuracy.

“The total (spending) reported by groups most likely pales in comparison to what they really spent,” he said.

The biggest omission in Montana’s lobbying law may be its failure to require the monitoring or disclosure of those who work to influence executive-branch officials. In a state whose part-time legislature is required to meet for just 90 days every other year, officials who write regulations and evaluate contracts and projects wield significant power.

Former state Sen. Steve Brown, a Helena attorney and expert in lobbying laws, said attempts to monitor such lobbying failed in the 1990s under heavy criticism from industry groups and nonprofits.

Ethics and disclosure

Montana boasts relatively strong ethics laws but weak disclosure and enforcement make it difficult to assess the ethical conduct of state officials and employees.

Crimes committed by state officials, though rare, do make headlines.  Over the past decade or so, state employees have been disciplined or prosecuted for actions ranging from negligent homicide and embezzlement to having sex with prisoners and probationers.

But prosecutions for official misconduct or abuse of office are rare, and so are formal complaints of ethics violations, most of which are filed by partisan rivals engaged in heated political campaigns.

Over the past two years, Montana’s Commissioner of Political Practices, the office responsible for investigating most ethics violations, has ruled against Montana’s Democratic governor and a Republican member of the elected commission that regulates monopoly utilities.

Successive commissioners had ruled that Gov. Brian Schweitzer used public funds to make public service announcements during a campaign, a prohibited practice. But the complaint was recently dismissed when a special “deputized” commissioner revisited the case and ruled the law banned only the use of public funds and not the use of  state facilities, equipment or workers’ time to make such ads.

In another case, Public Service Commissioner Brad Molnar was found to have solicited gifts from energy companies and used state equipment for campaign purposes. 

Both cases took years to investigate, due in part to the defendants’ vigorous legal defenses, which imposed similar costs on ethics investigators and those who filed the complaints.

The costs probably deter ordinary citizens and state employees from reporting ethical problems, said Mary Baker, a longtime employee in the political practices office.  The agency’s small staff and limited budget also prevent it from accepting and investigating anonymous allegations.

Located in a small house near the Capitol and staffed by a handful of employees, the office is also responsible for ensuring that top elected officials, legislators and department heads disclose their business assets, as required by law.

Veteran statehouse reporters described those disclosures as weak tools for gauging the material wealth or business connections of influential state officials. The law requires no asset disclosure of elected judges or officials who oversee investments or purchasing decisions. Officials who do who file are allowed to exclude their personal or household wealth.

Compliance with the requirement is solid but the quality of the reporting varies widely, journalists said. That’s unlikely to improve without audits, which the political practices office has neither the money nor staff to conduct.

Ethics and the legislature

Conflicts of interest are inescapable, given Montana’s tradition of part-time citizen lawmaking.  Legislators vote routinely on matters that affect their livelihoods. Public employees elected to the assembly sponsor bills that would raise their own pay. Farmers and ranchers regularly introduce and vote on agriculture bills; tavern owners rail against DUI laws.

State law requires that lawmakers disclose conflicts before voting, but they rarely do, statehouse reporters say. That’s due partly to language that requires the disclosure of only those conflicts in which lawmakers stand to gain a “direct and distinctive personal impact,” separate from what all ranchers or public employees might enjoy.

Each house has an ethics committee, but those panels rarely meet. Minutes show that over the past six legislative sessions the House Ethics Committee has met just three times, and only once to consider a legislator’s potential conflict. The Senate Ethics Committee hasn’t recorded a meeting since 1999.

Legislators rarely confront one another publicly over conflicts, and it usually makes news when they do.

In one 2010 case, then-Rep. Llew Jones, R-Conrad, successfully inserted funding for an energy study in budget legislation and then invested in a company that won the contract in a competitive bidding process.

Officials who awarded the bid said they did not know of Jones’ connection to the company. Jones said the legislature’s staff attorney told him the deal was probably legal.

“It may not be illegal right now, but it sure stinks,” House Republican Leader Scott Sales told the Associated Press.

Cronyism, favoritism, nepotism

Questions of cronyism and favoritism have dogged the administration of Gov. Brian Schweitzer, a Democrat, first elected in 2004.

The most notable cases involved the appointment of sitting legislators to top-paying executive-branch jobs. Most were Democrats, but one was a Republican state senator who promptly switched parties and threw control of the state Senate to the governor’s party.

The hires broke no ethics laws, and administration officials insisted they were merit-based, but the appointments drew protests from Republicans, political scientists and the press.

Johnson of Lee Newspapers called it the worst case of cronyism he’d seen in 40 years of covering state government.

“You don’t have to be a political scientist or a Republican to find this troubling,” added columnist Ed Kemmick of the Billings Gazette.

Similar questions dogged the governor’s hiring of his former college roommate to run the state’s fish, game and parks department. And the governor’s brother, Walter Schweitzer, made headlines early in the administration with reports that he was raising funds from lobbyists for the inauguration ball and wielding undue influence.

More recently, the director of Montana’s transportation department and a top aide resigned after being confronted with evidence that they had permitted the hiring of the director’s daughter. An outside audit of the department uncovered accounting errors, questionable contracting practices, the hiring of unqualified personnel and the lack of a formal process to address conflicts of interest.

Campaign finance law under fire

Since the end of the Anaconda era, Montana progressives have prided themselves on campaign finance laws that allow ordinary citizens to contribute meaningfully to state candidates while keeping elections relatively cheap and competitive.

That’s due largely, they say, to stingy limits on contributions by individuals and political committees, strict campaign disclosure laws, and Montana’s century-old ban on corporate contributions to candidates.

But Montana laws banning corporate political spending are facing serious legal challenges in the wake of U.S. Supreme Court’s Citizens United ruling in 2010.

The most notable lawsuits have been filed by a group now called American Tradition Partnership, which bills itself as a “grassroots organization dedicated to fighting the radical environmentalist agenda.”  Its lawyers argue that banning independent corporate campaign spending infringes on the U.S. Constitution’s guarantee of free speech.

Montana’s highest court has defended the ban, citing the state’s history of political corruption in the days of gaslights and copper barons.  But U.S Supreme Court recently blocked the state from enforcing that law while it decides whether to revisit the issue of corporate cash in campaigns.

As Montana’s campaign finance laws await their fate, the office that enforces them has experienced some turmoil of its own. Montana’s Commissioner of Political Practices Dave Gallik resigned in mid-January after his staff accused him of doing private legal work on state time, an allegation he denied.

The governor, a Democrat, was tasked with appointing Gallik’s successor, who will eventually have to win confirmation from the GOP-controlled state Senate. Republicans rejected Gallik’s predecessor last year and seemed poised to reject Gallik, a former Democratic state representative who was ultimately named to the job after lawmakers left town last spring.

After some political maneuvering over who would get the nonpartisan position, the governor made his choice:  a former labor leader with long ties to the state’s Democratic party.

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Photo credits: Montana State Capitol (Monty Johnson).
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