What's good enough for the people of Montana should also be good enough for our state lawmakers.
Here's what we mean: The Montana Constitution guarantees the public the right to observe the deliberations of the government. In other words, you should be able to see what your lawmakers and representatives are doing.
That right is so important that its enshrined in the state's constitution.
Journalists and news organizations, like The Billings Gazette, have fought hard to make sure the public's right to know has been preserved. We've fought for transparency and to make it easier to get information from the government, not harder.
But, new rules that have already been passed by the Montana State Senate and are heading to the House could make it harder for citizens to observe the government. It could also create more work for an already burdened state court system.
Currently, many bills go through a legal review process by the Legislative Services division. These staff attorneys, who are hired by the Legislature, review the proposed bill language and note any potential conflicts of law as a service to a citizen legislature that may not have the legal expertise to spot the potential pitfalls.
This is not so unlike the fiscal services division which adds "fiscal notes" to bills estimating the cost of all proposed legislation. It's important to note that fiscal notes attached to many bills become death warrants as fiscally conservative lawmakers sometimes blanch at the price tag of some proposed legislation. And, fiscal notes attached to some of the bills are also speculative.
In this way, legal notes and fiscal notes serve the same function, and both are imperfect and based on assumptions. They're meant to give an expert opinion.
But, the Senate has proposed eliminating the legal review notes from proposed legislation. The rule-change sponsor, Sen. Keith Regier, fears that too much input might unfairly bias lawmakers.
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What Regier characterizes as biased input may indeed be sage legal advice. We believe the House would do well to thank Regier and his Senate colleagues for their suggestions, but keep the legal notes attached online for the public to see.
While the legal notes that are attached to bills are simply opinions, they're important. It's a good example of government trying to protect against itself. By that we mean, it stops overzealous legislation which, if passed, could result in clogging the courts with more lawsuits. It saves taxpayers the headache of having to spend money to fight against the government. If conservatives are really so concerned about government overreach, then they should advocate leaving the legal review in tact as the analysis could stop unwitting legislators from creating too many rules that would only spin off lawsuits.
We also believe that information about the Legislature should be as easy to access as possible. The more people who can easily access the information, the better the input and the more likely citizen participation. Because of that, lawmakers who value good, open government should reject what looks like a simple piece of administrative housekeeping. This change would unarguably make it harder for citizens to understand the possible legal implications of any bill under consideration.
Regier, as he testified before the Senate Rules Committee, said the compelling reason to stop attaching the legal review notes was that it may discourage lawmakers and, besides, not all states have such a public process.
In Montana we should celebrate our transparency. And, we would like to point out that if legal analysis helps stop bad bills from becoming bad law, then Montanans win.
More information about a bill as it's being considered should mean there's more robust conversation.
Finally, Regier seemed to think that a legal review of bills would subject the legislative branch to a review by the judicial. Unfortunately, we think Regier has his civics incorrect. The lawyers who review the bills work for the Legislature on its behalf. These are not lawyers employed by the judiciary. Instead, they're staff attorneys who are trying to help lawmakers pass the best bills possible.
Ultimately, we elect our state representatives and Senators based on their ability to lead. We wouldn't want to think that they're so timid and uncertain that a concern raised by a staff attorney would render them unable to legislate.
At a time when there seems to be more distraction and less participation in government, we need more transparency, not less.