From legislative secrecy to Constitutional sunlight
The main stairway to the third floor of the Montana Capitol building is seen on Wednesday, February 12, 2025. (Nathaniel Bailey for the Daily Montanan)
Only a handful of us who served in the legislature under the old 1889 Montana Constitution still survive. That constitution reflected the dominant power of the copper mining industry when Montana achieved statehood. It was also ridiculously verbose and prescriptive, and by the late 1960s a consensus had developed that the time had come for our 1889 Constitution to be replaced. Among the people's major concerns was the secrecy by which laws were made within the Legislature.
It was 1971 when, at 23, I took my seat in the Montana House of Representatives – the youngest member. The House chamber was overwhelming in its grandeur. What I didn't know then was that what went on in that grand place was far less grand than its setting.
Legislative bodies are organized around committees. One of my earliest experiences in a Montana Legislative committee was having the committee chair excuse all nonmembers from the committee room except two gentlemen whom I soon learned were lobbyists. They were hired by a special interest to protect that interest's affairs in the legislative process. Behind those doors, closed to citizens, these selected lobbyists freely interacted with committee members as they voted on the bills before the committee. With no experience, I simply assumed this was fine. Certainly, as the legislature's greenest newbie, I wasn't going to question it.
Fortunately, a few legislators were starting openly do so. One, was Flathead Representative James E. Murphy. Murphy had served in the Missouri legislature before relocating to Montana after World War II. He led the Montana House Judiciary Committee and was also Montana's representative on the Republican National Committee. I greatly admired Jim Murphy.
Murphy thought the 1889 Constitution was far outdated and needed to be replaced. A prime example of what needed changing was my first experiences with the public's lack of access to legislative decision-making and the open role of lobbyists in orchestrating law-making decisions behind closed doors.
Well, the committee procedure I witnessed in the 1971 legislative session could not happen in the Montana legislature of today, thanks to Montana's 1972 Constitution. It requires legislative meetings as well as other government meetings to be open to the public. No longer can lobbyists, but not the public, be allowed to meet with and impact decisions of committees behind closed doors.
Under the 1889 Constitution, legislation was routinely passed or killed by either the Montana House or Senate, with few recorded votes and no way for the folks at home to really know how their legislators had voted. Since 1972 they always can. It is constitutionally required.
Once in 1971, we house members were startled by a camera flash from the back balcony of the chamber. A photographer had taken a picture of the voting board of a vote that the 1889 Constitution allowed to be non-recorded, 'off the record,' even though that vote essentially determined the outcome of an important bill. The Speaker immediately called for the Sergeant-at-Arms to apprehend the photographer's film. But the photographer was too fast and escaped, film intact, from the capitol building. When the state papers carried the picture of the voting board the following day, the votes of all legislators on that bill were revealed.
Such a dramatic act to inform the people is not needed now, thanks to the 1972 Constitution, which stipulates that any vote in the House or Senate, including committees, that could result in a bill being passed or killed must be publicly recorded.
These true-life examples directly show how much more open to the people the Montana legislature is since the adoption of our 1972 Constitution.
Bob Brown is a retired Whitefish history teacher who also serves as a Board Member of Friends of the Montana Constitution. A member of the Montana Legislature for nearly 30 years, he was also Senate President, Montana Secretary of State and Candidate for Governor. Bob also served on the Board of Trustees for the Montana Historical Society. This column on the Montana Constitution produced for this publication by the 'Friends' organization.
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