The other side of the Montana Constitution
For some time now I’ve watched efforts by Montanans to improve their state Constitution, and the anguished opposition by figures in Montana’s former political establishment, who exclaim, in essence, “How dare they?”
One example: Former Gov. Marc Racicot’s Feb. 1 capitol speech, in which he equated reform efforts with attacks on democracy, the republic and separation of powers.
But let’s get real: It is always the people’s prerogative to fix flaws in their government. And the Montana Constitution, like any human creation, has its flaws.
As a law professor at the University of Montana (1987-2010) and as chairman of Montanans for Better Government (1993-1997), I became intimately familiar with those flaws.
Moreover, in 2017-18, I extensively researched the constitution’s adoption. My findings were peer-reviewed and published in the British Journal of American Legal Studies. The findings include information every Montanan should know.
Some highlights:
Montana’s original constitution, adopted in 1889, contained important safeguards against cronyism and excessive taxes, spending and debt. These safeguards were the product of hard experience in other states.
In the 1960s, liberal special interest groups — such as the National Municipal League — began a campaign to create new state constitutions that removed restrictions on government. Montana was one of several states in their sights.
Montana liberal activists joined this campaign. They sought to give government more power to tax, spend and borrow and replace elected offices with appointed ones. There was no secret about this.
Although many fine people participated in the 1972 convention, the process was manipulated to achieve favored results. The information provided to the delegates was highly slanted. Additionally, sitting legislators were barred from running for election as delegates and the decision to sit delegates alphabetically impeded the ability of the conservative or skeptical minority to confer with each other.
Most of the delegates were not equipped to deal with this. None was experienced in constitution writing. Few knew that the information they were receiving was unreliable or biased.
Moreover, the timing and ballot form of the ensuing referendum were carefully structured to skew the vote toward approval. Public money was used to promote ratification. For example, Montana State University used public funds to send pro-constitution propaganda to tens of thousands of households.
In his capitol speech, Mr. Racicot claimed the voters approved the constitution.
That is doubtful.
Under the election rules then in effect, the constitution probably failed. In defiance of the rules — and over the objection of the Democratic secretary of state — the Democratic governor purported to “certify” a victory for the constitution. The Montana Supreme Court upheld his certification by only a bare 3-2 majority. This apparently reversed an earlier in-chambers tally of 2-3. Some have reason to believe there was improper political pressure on the swing justice.
The result: Many people’s ballots were not tallied as they were told they would be tallied.
That defective referendum is not reversible at this late date. Still, it is altogether appropriate for Montanans to address some of the constitution’s faults. These include insufficient control on taxes and spending, language insulating bureaucracy from popular control, and vague and contradictory language that encourages judicial lawmaking. Some of the state Supreme Court’s decisions in particular endanger democratic self-governance.
In his capitol speech, Mr. Racicot emphasized the need for civil discourse. I agree. But a prerequisite to civil discourse is for the Constitution’s celebrants to drop the sanctimony — and recognize that there is more than one side to this important debate.
Rob Natelson was a professor of law at the University of Montana. He is senior fellow in constitutional jurisprudence at the Independence Institute in Denver. He served on Gov. Stan Stephens’ tax advisory committee and was as a candidate for governor in 1996 and 2000.