February 21, 2023

The executive committee of the Montana Republican Party voted last week to rebuke former Republican Montana Gov. Marc Racicot, declaring that as a result of his recent outspoken opposition to Republican candidates, the state party no longer considers him a Republican. 

Racicot shared the resolution with the press over the weekend through former Republican Montana Secretary of State Bob Brown, another frequent party-line dissenter who was also involved in litigation challenging laws passed by the Republican-led Legislature last session. 

The resolution, approved Feb. 15, says Racicot “has taken active and aggressive action to undermine MTGOP endorsed and supported candidates.” 

Racicot, a former state attorney general who served as governor from 1993 to 2001, said he’s never been a party-line voter, but found more commonality with the Republican platform than the Democratic platform on fiscal issues. He began bucking Republican endorsements in 2016, when he came out in opposition to then-candidate for president Donald Trump.

“I knew in 2016 … that that probably was not something that would be universally embraced by all of my comrades,” Racicot told Capitolized on Tuesday. “But I was genuinely concerned for all of the country by his character — and frankly I think my assessment was vindicated.” 

In 2020, he went a step further, announcing his support for now-President Joe Biden over Trump. 

“In 2020, not only could I not support him, I had to support the best candidate who could try to do the most for the good of this country,” he said. 

In 2022, he endorsed Democratic congressional candidate Monica Tranel over Ryan Zinke in Montana’s western U.S. House district, as well as Justice Ingrid Gustafson over GOP-endorsed Public Service Commission President James Brown in their nominally nonpartisan race for the state Supreme Court. 

In a letter to the editor responding to Racicot’s endorsement of Tranel, Flathead County Republican lawmaker John Fuller referred to the former governor as a member of the “narcissistic elite.” 

The resolution rebuking Racicot expresses concern that he “retains an elevated profile in Montana and has spoken in assemblies without denying that he still considers himself a Republican and therefore may be believed by some to be considered as speaking for Montana Republicans.”

Racicot, despite his recent embrace of Democratic politicians and critique of some Republicans, is hardly a bleeding-heart liberal. While governor, he denied the appeal of a man on death row. He signed highly controversial — and now generally viewed as disastrous — utility deregulation legislation in 1997, and continued to defend it after leaving office. He chaired the Republican National Committee from 2002 to 2003, when he joined the George W. Bush presidential re-election campaign. He worked at a lobby shop where Rudy Giuliani’s name was on the door. 

Asked whether the Bush presidency has something to do with the calcification of conservative ideology in the modern GOP, Racicot acknowledged that the administration made mistakes, but pointed to two other inflection points in recent history as proximate causes: the speakership of Newt Gingrich and his “Republican Revolution” and the advent of social media. 

“You could see the tone of communications,” he said. “It was hand-to-hand combat.” 

Racicot maintains that his political philosophy hasn’t changed. His party, though, has changed its governing philosophy, he said. 

“It’s now all a matter of forceful imposition of power,” he said, calling out examples like the ongoing feud between legislative Republicans and the judicial branch. “And it will come back to haunt them.” 

In a statement, a spokesperson for the Montana GOP said the vote to rebuke Racicot was unanimous. 

“Concerns over his endorsements were conveyed to the former Governor ahead of the passage of the resolution,” the statement said. “Out of respect for Governor Racicot, Chairman [Don] Kaltschmidt called and texted the Governor following the decision before it was circulated to the media."

The party’s executive board comprises 11 elected members and two appointed by the party chair: 

The resolution approved last week was not the first the executive committee considered. A previous version obtained by Capitolized and confirmed with Republicans in the Capitol contained similar language but rebuked both Racicot and Brown, who in 2020 declared independence from a Republican Party he said has been reshaped in the image of Trump. 

—Arren Kimbel-Sannit

Bill Report

House Bill 284, a measure sponsored by Rep. Jerry Schillinger, R-Circle, that seeks to restore monopoly utility companies’ ability to ask regulators to sign off on expensive power generation projects prior to building or purchasing them, passed second reading on a 77-22 House floor vote. Missoula District Court Judge Jason Marks in May stripped NorthWestern Energy of its access to such “preapproval” when he struck a nearly 20-year-old law on the grounds that it amounts to unconstitutional “special legislation” benefiting one company exclusively: NorthWestern. HB 284 would circumvent that issue by opening access to preapproval to the state’s other large regulated power company, Montana-Dakota Utilities, which supports the measure.

House Bill 378, sponsored by Rep. Jim Hamilton, D-Bozeman, died on the House floor Tuesday, an abrupt reversal after 28 Republicans had sided with Democrats to support the measure on an earlier vote. HB 378 sought to remove political candidates from the ballot if they fail to meet campaign finance and business disclosure deadlines, and to prohibit political parties from appointing replacements for candidates disqualified on those grounds. Hamilton argued that the bill was necessary to crack down on what he called “placeholder candidates” — people from either party who, after getting on the ballot, refuse to file disclosure forms and withdraw at the last minute to make way for a party-named replacement. Despite its initial bipartisan showing, HB 378 lost the support of all 28 Republicans, going down on a 32-65 vote.

Legislator lawsuits

Rep. Bill Mercer, R-Billings, brought a pair of bills to the House Judiciary Committee Tuesday morning that would allow lawmakers to either bring or intervene in lawsuits involving laws passed by the Legislature. 

The first, House Bill 518, would establish that the Legislature has standing to file or defend a lawsuit on its own behalf under certain circumstances. 

The bill envisions two such scenarios: either when the constitutionality of a statute is subject to litigation, or when a state agency is not executing a statute, “thereby impeding compliance with legislation, session law, or a statute.” 

“This bill stands for the fairly simple proposition that the Legislature should not be a potted plant,” Mercer testified. “It should not be an entity that says we put something on the books, the governor agrees with it, it’s part of our statutory structure, and we’re powerless to do anything to make sure that there is compliance with that provision.” 

Mercer’s testimony focused almost entirely on the second possibility, though it’s hard to detangle that first provision from the litany of constitutional challenges to laws passed in the 2021 session. Republican lawmakers have brought several legislative proposals this session that would amend judicial procedures, standards of conduct and more. 

Nonetheless, Mercer came prepared with an example of when an agency ignored legislative direction. 

In 2003, he said, then-Sen. John Cobb, R-Augusta, successfully carried Senate Bill 160, legislation requiring the Department of Public Health and Human Services to develop strategic plans containing various performance measures. But 20 years later, when Mercer sent a letter to DPHHS asking which of those measures the department was actually tracking, he received a response indicating the agency was largely ignoring the law, he said. 

But the Legislature under current statute doesn’t have standing to litigate such a matter, Mercer said. 

He posed a hypothetical: If the Department of Environmental Quality issued a permit out of compliance with the Montana Environmental Policy Act, an injured party could challenge the permit in court. The Legislature could not, he said.

“The problem when we get into the area that I’m talking about with SB 160 is there isn’t someone out there that’s going to be able to demonstrate standing,” Mercer said.

The bill also lays out different scenarios for authorizing litigation by the Legislature.

A legislative staff legal note attached to HB 518 flags a few potential issues with the bill. Case law, the note says, has landed on both sides of the question whether an individual lawmaker or a group of lawmakers can bring litigation. The key consideration is whether the injury in question constitutes a "concrete injury" or an "abstract institutional injury.” 

Additionally, the note says Mercer’s bill may not conform with the Montana Constitution’s separation of powers doctrine. 

“The Montana Supreme Court has stated that the purpose of the separation of powers doctrine is to constitute each branch as an exclusive trustee of the power vested in it, accountable to the people alone for its faithful exercise, so that each may act as a check upon the other and may prevent the tyranny and oppression that would be the result of a lodgment of all power in the hands of one body,” the note reads.

Mercer’s second bill, House Bill 512, is similar, but specifically authorizes the Legislature to intervene in ongoing lawsuits. It has no legal note. 

Neither bill received a vote Tuesday. 

—Arren Kimbel-Sannit

Eye in the Capitol

U.S. Sen. Steve Daines, R-Montana, discusses his brief Twitter ban at a joint session of the Legislature on Feb. 20. He produced an enlarged image of the Twitter profile photo that led to his suspension. The poster was large enough to essentially obscure House Speaker Matt Regier, R-Kalispell, seated to the left.

Heard in the Halls

Background Reading

Americans can choose better than Trump: Read this Marc Racicot op-ed in the Washington Post decrying Donald Trump’s 2016 presidential bid. (Washington Post)

Montana’s federal delegation addresses state Legislature: Read for an account of the federal delegation’s addresses to the Legislature on Monday — plus a bit of political prognostication. (MTFP)

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