Plans for COVID-19 oversight multiply

Legislation to rein in the authority of county officials to make public health declarations in times of crisis without added oversight from other elected officials moved out of a House committee this week with a surprising level of support from Democrats.

On a nearly unanimous vote, the House Local Government Committee passed an amended version of Rep. David Bedey’s House Bill 121,  giving local governing bodies — in this case, a county or city commission — the ability to overrule or modify a “directive, mandate, or order issued by a local board of health in response to a declaration of emergency and/or disaster by the governor” following a public comment period. Just one Democrat voted no.

Bedey, a Republican from Hamilton, is not the only lawmaker with the goals of limiting the powers of those boards and of the governor to ensure that economic concerns get “a fair hearing.” Rep. Matt Regier, R-Kalispell, another, is willing to go further, opponents warn. 

A series of key differences between the bills have medical associations and public health officials scrambling to convince the Legislature to take a measured approach in their desire to shift and diffuse the balance of power in this and the next pandemic — and to that effect, some Democrats are looking for a horse to back to try to shape the legislation.

Karen Sullivan, health officer for Butte-Silver Bow County, said one of Regier’s bills would impede “me and my colleagues around the state from taking the necessary steps to prevent the spread of disease in our communities.”

When first proposed earlier in the session, HB 121 provoked pushback from health officers who were concerned about what they said was the infusion of good public policy with politics and the creation of needless red tape. 

And yet, two weeks after, the top Democrat on the Local Government Committee, Rep. Mary Ann Dunwell of Helena, referred to the bill as a form of “harm reduction,” with Jean Branscum, the CEO of the Montana Medical Association, calling it a “middle ground.”

The backing from Democrats of Bedey’s bill, a reversal, may be an indication that the differing proposals concerning the pandemic and emergency powers might create an odd political alignment within the fractious body. 

Bedey has made two efforts to delegate the power to make health orders to other elected officials. Aside from HB121, his HB122 would give lawmakers the option to issue a joint resolution terminating or modifying a governor’s declaration of emergency or disaster, and when not in a special or regular session, would predicate continuation of such a declaration on the approval of a majority of lawmakers as measured in a poll sent to each representative and senator. It passed out of the House State Administration Committee, albeit on party lines. 

Regier had two bills this week pass on party line votes in the House Judiciary Committee that are, at least in the broad strokes, quite similar. 

“This adds the balance of power back to the state government scales,” he said Thursday.

Regier’s HB230 would also create a mechanism for legislative oversight on the governor’s emergency powers, but it would further allow lawmakers to not just extend but also modify or terminate the declaration, all through the same polling mechanism that Bedey outlined. The poll could also be triggered by a request from 15 legislators, an idea which Regier said he got from current statute allowing for objections to administrative rulings.

Rep. Tom France, D-Missoula, said in committee Thursday that he was concerned about the constitutionality of such a provision, and the ramifications to government transparency of taking action “without the benefit of a hearing.” 

But Regier’s response has been to reframe those concerns around the executive, who he contends acted with similar levels of opacity.

“We heard some objection this morning when they were asking about a legal note, specifically, ‘How can we make decisions without hearing and public testimony?’” Rep. Derek Skees, R-Kalispell, asked Regier, a political ally. “Is it not your assertion, sir, that that’s exactly what our governor (Steve Bullock) did?”

“Yes, that’s exactly what he did,” Regier responded.

HB230 would also provide for “religious freedom” by preventing any public authority from interfering with “a person’s physical attendance at or operation of a religious facility.”

Public health officials were especially concerned by an additional provision preventing the quarantining or isolation of people “that do not show signs or symptoms of a communicable disease or that do not have a confirmed case of a communicable disease.” 

A similar provision exists in HB236, redefining isolation and quarantine to only apply to those confirmed to have such a disease, a significant departure from current practice.  

“This fundamentally modifies the definitions of quarantine and isolation,” testified Sullivan, with Butte-Silver Bow County. 

The rest of the bill would require approval from a governing body for a county health board to carry out the majority of their functions as they relate to communicable diseases, including conducting inspections, enacting quarantine or isolation orders, removing incarcerated people with contagious diseases from prisons, and so on. 

It’s for these reasons that there’s been some political realignment behind Bedey’s HB121. 

“I think you all know I have major concerns with (the bill),” Dunwell said, explaining her “harm reduction” comment. “I consider it not a good bill. We also know we have a handful of other bills like it coming through, a couple of them are much worse. This chips away at public health, those other ones would completely destroy it.”

Even beyond Regier and Bedey’s bills, there are additional efforts, a reflection of the widely held belief among conservatives in the Legislature that there need to be more “checks and balances” over the decisions and directives of either the governor or of unelected health officers amid times of both epidemiological and economic distress.

Rep. Paul Fielder’s House Bill 145, for example, would essentially reduce the role of public health boards to a purely advisory one, requiring them to make recommendations to the governing body instead of orders themselves.

Rep. Bill Mercer, meanwhile, is working on draft legislation — the details of which he declined to discuss on the record — concerning both the governor’s and county health board’s orders. 

Then, there are similar proposals in the Senate, plus House Bill 144, existing legislation that’s already passed in the House (with some Democratic support) to hold legally harmless law enforcement officers who refuse to enforce orders from state or local health officers. It’s something that Regier’s proposal on county health officials would also seek to accomplish.

In short, several varieties of essentially the same idea are emerging through the legislative process at roughly the same time. 

Regier’s bills will have to wait until next week until seeing action on the floor. Bedey’s HB121 also awaits floor action, whereas HB122 was supposed to go up for a vote this week before being pulled. Fielder’s HB145 was tabled in the Local Government Committee on the same day 16 of the committee’s 17 lawmakers approved HB121. 

“A lot of things are parallel,” Regier said. “If they all pass, we’ll sit down in a conference committee and hammer out the details.” 

It’s for this reason that HB122 was pulled, said Skees, one of the House majority whips. 

Regier said he thinks there’s enough agreement on the underlying issue that he doesn’t believe there will be a need for votes from Democrats. But the factions within the GOP that became apparent at the end of last session haven’t totally dissipated under Republican Gov. Greg Gianforte — a vote on a pay increase for state employees favored by Gianforte that united Democrats with some political moderates in the majority this week is testament to that fact. 

Lawmakers like Regier and Skees tend to fall further to the right than people like Bedey, or Rep. Llew Jones, R-Conrad, whose bill to limit the amount of emergency funds that the governor can spend without legislative oversight passed with near unanimity in the House this week. 

The Democrats, finding themselves out of step with the state’s executive for the first time in 16 years, could also see some benefit in slapping guardrails on the new Republican governor as they did with Jones’ bill — or at the least throwing their weight behind the least severe proposals that emerge. 

“I think the Dems will be looking at a reasonable way to make sure the public has the right to speak,” said Rep. Kathy Kelker, D-Billings, the top Democrat on the Judiciary Committee in the House, referring to the health bills. 

A spokesman for the House GOP, Dylan Klapmeier, said in a text that party leadership was working with the various lawmakers involved to “consolidate” their proposals. 

Still, any variation on the bills would constitute a significant change in the way health orders are passed down, especially at the county level. 

“HB 121 is the least restrictive or harmful to public health,” said Justin Murgel, the county health official in Lewis and Clark County. “But it still adds layers to the process that could and would impact overall public health…it still pits politics versus science.”