Montana’s legislators voted on hundreds of bills this session that would directly benefit the businesses they run outside the state Capitol. Yet many do not see that as a problem.
More than a dozen state leaders said it is not unethical to bring bills that would advantage their professions or properties so long as others received the same gain and the link is openly shared. Most lauded the fact Montana has a part-time, citizen Legislature where farmers sit on agricultural committees, lawyers craft state criminal laws, teachers tweak education policy, and business owners set industry regulations. Experience makes them experts, they say.
But the nonpartisan Center for Public Integrity gives Montana an "F" grade for its conflict disclosure laws, which make it difficult for the public to spot self-serving votes or sanction those who enrich themselves in public office.
Moreover, Lee Montana has found that legislators flout rules requiring them to disclose financial interests and that gaps in the complaint process make it difficult for the public to trigger penalties if they spot an abuse of power.
Some potential conflicts this year hit the public spotlight.
Billings Republicans Rep. Peggy Webb and Sen. Roger Webb, who jointly own several rental properties, collectively carried 15 bills to modify tenant-landlord laws or other state provisions that would have affected their business.
“I will disclose before the committee: I am a landlord,” the senator said in March as he introduced a bill that would have made it harder for tenants to trigger investigations of their landlords for illegal retaliation against them. It was among four of the senator's bills to be vetoed. Another that died in committee would have allowed police to charge people with theft if they leave a rental without notice.
“If any of you are landlords, as I am, you might have had to deal with someone living in or on your property without your permission,” Rep. Webb said in March while introducing a bill that would have rewritten trespassing laws to make it easier to remove squatters. Critics said it went too far and would have harmed legitimate tenants. It also was vetoed by Bullock.
Halfway through the legislative session, Roger Webb said he and his wife had received “very, very, very nasty” emails and voice messages from people who accused them of abusing their power.
“I get upset, but you know what? We look at it, we listen to it. I’m going to guess they probably didn’t vote for me anyway. I don’t care,” he said.
Webb argued it makes sense to have landlords – or tenants – craft changes to those state laws because they know it best and are more willing to work through any backlash to find fixes. Politically, he said it might be easier to avoid touchy subjects altogether, but then some of the state’s thorniest problems would go unsolved.
“If we don’t fix it, who does?” Webb asked. “These are issues, or we wouldn’t be bringing these bills.”
Also in March, Sen. Ed Buttrey, a Republican who owns a Great Falls bar and casino, amended “the brewery bill” in a way that effectively reversed its intent and would have blocked growth of some craft beer tap rooms.
Critics on social media wondered whether a conflict of interest inspired Buttrey’s changes. The original bill would have allowed breweries to expand production without closing tap rooms that sell pints to customers during limited hours. In gutting the bill with his amendments, critics suggested Buttrey was trying limit the growth of his competitors.
“None of which has any truth to it whatsoever,” Buttrey said, laughing. “I do own a small beverage license, and that has been disclosed multiple times. It has absolutely nothing to do with personally benefiting myself or any other tavern owners.”
Instead, he said his amendments were following through on a 2015 promise made by craft brewers with leaders of the three-tier system – alcohol manufacturers, distributors, and retailers – that no changes would be made without consensus from all parties. Brewers, he said, reneged on that deal.
Nonetheless, Buttrey was the target of public criticism.
“(He) wants to quash his ‘competition’ at the expense of economic growth,” wrote one Missoula man on Facebook. Another commented, “Conflict of interest much?”
The brewery bill amendments were soon reversed as the industry's key players brokered a compromise, perhaps spurred by pressure from the public. The governor's vetoes of tenant-landlord bills similarly might have been influenced by the public spotlight.
Many legislators argue actual conflicts are rare despite the social media posts and emails that accuse some lawmakers of self dealing.
“There’s not been a large volume of complaints, to be honest with you,” said Rep. Jeff Essmann, a veteran Republican legislator from Billings who previously served as Senate President.
In the 2015 session, one complaint was filed and dismissed as meritless without convening the Senate Ethics Committee. In 2017, two complaints filed against House members were similarly dismissed. One involved a legislator’s former work as an Uber driver, and another was about the use of official state letterhead to send thank-you notes for a community fundraiser.
“If there was a reasonable question of validity, we’d get together and discuss that,” said House Ethics Chairman Bill Harris, a Mosby Republican.
Gordon Witkin doesn't buy the explanation that Montana leaders are simply more moral than colleagues in other states. The executive editor of the Center for Public Integrity pointed to years of reporting on abuses of power that repeatedly show state legislators are not forthcoming about potential conflicts without strong rules requiring it. And even then, most do not recuse themselves from decisions that personally benefit them.
“If you have none of the systems in place that would reveal or root out ethical violations, then you can’t expect any ethical violation cases to emerge,” he said. “That is a quaint, head-in-the-sand kind of attitude.”
On Facebook in March, one man urged friends to contact legislators about Buttrey's amendments to the brewery bill and to file an ethics complaint with the Commissioner of Political Practices. A Billings woman similarly asked her friends to file complaints against the Webbs over their landlord-tenant bills.
Any complaints would have faced two problems.
The actions of the Webbs and Buttrey do not fit Montana's narrow legal definition of a conflict of interest. Also, the Commissioner of Political Practices has no involvement in legislative ethics complaints even though the office investigates similar allegations against other elected officials, such as the governor.
Montana law defines a conflict of interest by a legislator as an act that would have “a direct and distinct personal impact,” usually financial. If other members of their profession or community also benefit, that doesn’t count.
For instance, the Webbs’ bills on rental laws are not an illegal conflict because they broadly affect landlords, not just their specific properties. Similarly, Buttrey’s amendments, seen by some as pro-tavern and anti-brewery, were not a violation because his bar was not going to benefit any more than another.
If an interest does create the kind of direct benefit banned in law or if there is an “appearance of impropriety,” legislators must disclose the conflict at least once per session in a public meeting. Even then, a legislator may still cast a vote unless the legislative ethics committee has met and ruled against it, which has not happened in recent memory.
If someone is advised to abstain from a vote, legislators said leaders usually recommend it informally without convening the committee. That would take up time and draw undue public attention to what is likely a minor judgment lapse, many said.
It is rare for legislators to abstain from a vote after disclosing a potential conflict. But it's nearly impossible to know exactly how often it happens without reviewing video or audio from every meeting. Transcripts of those recordings do not note abstentions or conflict disclosures, only final vote tallies. And the vote tallies don't distinguish between abstentions and run-of-the-mill absences.
Legislative rules focus on public disclosure rather than abstaining from votes as the primary deterrent for abuses of power.
That emphasis was highlighted in 2001, the last time an ethics committee met.
Twenty Democrats filed a complaint against Rep. Keith Bales, R-Otter, for sponsoring a coal-bed methane bill that would have personally benefited him. At public hearings, he admitted as much. He “passed out maps, with his own property circled, showing the area of the state affected by the bill,” but later avoided questions about it, according to reports by Lee Newspapers at the time. The complaint was dismissed unanimously by the committee because hundreds of other landowners also could have benefited and Bales had disclosed the conflict.
One day in January also serves as an example of the emphasis on disclosure rather than avoiding votes.
When one of Webb’s tenant-landlord bills reached the House floor, several buzzed in to speak and disclosed that they own rental property. So many people were queued that the Speaker of the House suggested to the chairman that a mass disclosure would be simpler.
“Could everyone in the beloved House of Representatives who owns rental property raise their hand?” Rep. Dennis Lenz said, chuckling at the lectern.
At least 20 hands went up among the 100 House members. None abstained a few minutes later when their votes advanced the bill, 63-37. The House Journal, the official record of legislative actions, includes no note that conflicts had been disclosed.
Regardless of conflict, House rules encourage and Senate rules require members to vote on every bill. The premise is that legislators are representing their district, not themselves, each time they push the green or red button on their desk.
Most legislative leaders say conflicts are an unavoidable characteristic of a citizen Legislature.
Members often describe pride at working in the communities and industries they govern rather than serving as career politicians, who are seen by many legislators as out of touch and vulnerable to the half-truths of lobbyists.
Sen. Chas Vincent, a Libby Republican whose family has long worked in the timber industry, is named by some colleagues as their go-to guy to understand forest management or water issues, saying he will present all sides of the debates as he sees them.
Vincent echoed others in celebrating Montana’s form of lawmaking, conflicts and all.
“The Legislature was purposely constructed with citizen legislators to create those situations, so they actually had people that would live under those issues. To be able to bring issues to Helena and then be able to live under the rules and laws that they passed,” he said. “It was designed specifically as a conflict, really. Where do the farmers go? They go to the ag committee. Where do the lawyers go? They go to judiciary. It’s meant to be that way.”
Another legislator joked, “You can’t swing a dead cat in the Capitol without hitting somebody’s conflict of interest.”
Veteran Butte Democrat Sen. Jon Sesso said apparent conflicts actually can strengthen the Legislature.
“I ran specifically to represent local government,” the Butte-Silver Bow planning director said. He ran for office to leverage his 25 years of experience as a professional planner to advance fixes for cities and towns — or to at least make sure changes are thoroughly vetted.
At times, Sesso has sought to compromise with Rep. Forrest Mandeville, a Columbus Republican and land use planner who consults for developers. They work in the same field but on opposite sides, one public and one private. Sesso thinks any approved bills are stronger for their insights and fights despite the appearance they both have of conflicts of interest.
“You cannot not have some part of your life that is directly related to the bill in front of you,” Sesso said. “It just goes without saying, if you’ve got a job.”
“I have carried a lot of bills that would smooth out the subdivision process or give a little more clarification to it. I never saw it as a financial benefit to me. It’s mainly just to answer questions I get from clients or other people in the field,” he said.
Mandeville said to keep the public’s trust, legislators just need “to make sure that’s not a secret.”
Sunlight Foundation Executive Director John Wonderlich said good accountability systems can be built around disclosure rather than vote recusals, but they only work if there is strong enforcement.
"Legislator financial disclosures are notoriously inaccurate, filed too late, or insufficiently detailed to give meaningful oversight," said Wonderlich, who leads the country's primary nonpartisan nonprofit that advocates for open government and the public's right to know.
Montana is no exception: No one monitors those forms for completeness.
"That's absolutely not a sufficient system," he said.
Tomorrow: No one monitors financial disclosure forms for violations.