HELENA — It was supposed to be a simple organizational meeting of the Senate Judiciary Committee on Jan. 5, but already, confusion arose over how to best allow public access to the legislative process in a session unlike any other.
Senate Judiciary Chairman Keith Regier, R-Kalispell, opened the first meeting of his committee with a unilateral decision: no remote or electronic testimony would be permitted during the committee’s bill hearings.
“For 130 years, people have been coming to this building to testify on bills,” Regier said. “They rode their horse, drove a Model T, but they have been physically in the Capitol.”
Pushback from committee members was swift.
“This is not a normal year. We’re not saying, ‘forever and ever allow Zoom testimony,’” said Sen. Bryce Bennett, D-Missoula. “But I think for this specific session, we have compelling arguments as to why we don’t want people to come crowding in here.”
Shortly after the committee adjourned, Regier reversed course, deciding to allow remote testimony after all. In an interview, Regier said he simply hadn’t been aware of an online registration process to testify via Zoom, which remedied his concerns about out-of-state influencers having their voices heard in Montana’s legislative session.
As the 67th Montana Legislature got underway amidst an unprecedented public health crisis, House and Senate leadership decided to conduct a hybrid session for the first time in history, allowing Montanans to have their voices heard both inside the Capitol and from home. But with the rules governing remote testimony far from settled, the first week of the session saw confusion and speed bumps. Some lawmakers expressed concern about public access, as members of the public wonder whether they’ll truly be heard if they choose to testify remotely, or if it’s worth the health risks to be heard in-person.
Many lawmakers are not observing recommended guidelines on wearing masks and social distancing, and the Legislature reported its first positive test toward the end of week one.
In December, members of the Joint House-Senate Rules Committee, a panel in charge of shaping rules of conduct for the Legislature, spent hours hammering away at how best to allow the public to participate in the session, even as they accepted testimony from remote Montanans via Zoom, an online video conferencing service.
One of those to testify was Beth Brenneman, an attorney with Disability Rights Montana, an advocacy group that pushes for expanded rights for Montanans with disabilities.
Speaking to committee members over Zoom on Dec. 16, Brenneman pleaded with lawmakers to swear in on Jan. 4 and then postpone the session until a vaccine was widely available.
“I know that from working with so many of you, that you really care about people with disabilities, and you want to know how your legislation impacts them,” Brenneman said. “But I am going to say, without some sort of safety measure in the building, you’re not going to see those people. These are the people who are legitimately in fear for their lives.”
Lawmakers eventually decided to conduct the entire session in a hybrid format, allowing legislators and members of the public to access the Capitol in person or electronically, and the session gaveled in on Jan. 4 as scheduled.
As Democrats on the committee pushed for increased precautions inside the Capitol like mandatory mask-wearing and distancing, Republicans opted to form a COVID-19 Response Panel made up of leadership from both parties — six Republicans and two Democrats. The panel has broad authority over aspects of the session impacted by COVID-19, including in-person involvement in the session by legislators and members of the public alike.
On Jan. 8, a day after news broke that a lawmaker, Rep. David Bedey, R-Hamilton, tested positive for COVID-19, the panel met for the first time with members of the public testifying remotely, some highlighting disparities between in-person and remote testimony and many begging legislators to follow public health guidelines
Missoula resident Grace Benasutti, who spoke via Zoom, pointed out that those who testify remotely are not seen, since video cameras are turned off for public testimony.
“Therefore, the process is not equally accessible to both in-person and virtual testimony providers,” Benasutti said.
Others wished the panel would require mask wearing and social distancing inside the Capitol to protect the health of those who want to be heard in person.
Julie Williams, a teacher from Shepherd who lives with Multiple Sclerosis, encouraged the panel to make the entire Legislature go virtual, as she said her students have done throughout the pandemic, but recognized that was unlikely. “I want to continue participating in the process. I also want to continue living,” Williams said.
The joint House-Senate rules temporarily adopted by the legislature currently say the COVID-19 panel “may provide for the ability of a committee to receive oral testimony from members of the public through electronic means.”
However, at one point in the drafting process, “may provide” was “must provide.” Republicans brought the change to “may,” arguing the word “must” would not allow committee chairs to adjust for technical difficulties and connection errors among Zoom participants.
But Rep. Robert Farris-Olsen, D-Helena, vehemently opposed the change, believing it would give committee chairs the ability to block Zoom testimony “at their whim.”
“It hurts the democratic process,” Farris-Olsen said.
Senate Majority Leader Cary Smith, R-Billings, said in an interview that the current wording of the rules grants some flexibility to committee chairs, while continuing to follow rules outlined by the Constitution and tradition.
Sen. Smith said committee chairs have the discretion to decide the order of speakers, the time they’re allowed to speak, and whether in-person testimony or Zoom testimony will be prioritized — though committee chairs have always been allowed to determine the order of speakers. Some committee chairs have even requested that remote attendees adhere to Capitol dress codes.
“As the majority leader, I want to make it just as similar as if you were coming to one of our hearings and testifying right there in the committee,” Smith said.
But in the process of meeting Montanans where they are, those who wish to remotely testify have some new hoops to jump through. Under the “Have Your Say Montana” initiative on the Legislature’s website, Montanans wishing to testify on a bill remotely must register by noon the day before the bill is heard. Additionally, they are only able to register to speak on bills scheduled for hearings over the next three days.
The page also requests that members of the public submit written testimony in the event technical difficulties occur.
But the system raised some issues in the first week of the session.
Sen. Jen Gross, D-Billings, requested that Sen. Regier’s Judiciary Committee move back hearings on three bills to Jan. 12. Originally set to be heard Jan. 7, Gross said she was concerned members of the public wouldn’t have enough time to organize and register before Wednesday’s 12 p.m. registration deadline for the hearing arrived. Regier agreed to the move.
“We believe that this will give folks enough time to get familiar with the new platforms that we’re using,” Gross said in a voicemail. “We just wanted to make sure we have time for the public to sign up and make their voices heard.”
But for Beth Brenneman and Disability Rights Montana, public access to the legislative session has always been about much more than showing up to speak in committee hearings.
“The way that they’re starting to open up public access during hearings is really promising,” Brenneman said. “But Zoom is not the same as physical presence in the Capitol.”
Brenneman, who has worked with her organization since 2005, described the importance of quick conversations with legislators in hallways before and after committee meetings and floor sessions, saying face-to-face interaction is critical to communicating policy goals, especially for the Montanans her organization represents.
With many legislators roaming the halls maskless and the House and Senate chambers packed without distancing, Brenneman said that, for some, setting foot in Montana’s Capitol is simply off the table.
But, as she noted in her December testimony to the Joint Rules Committee, that doesn’t mean it’s off the table for everyone else.
“I’ve been talking to a lot of other advocates who I really respect, and a lot of them, even though it’s a risk, have basically conceded that in order to do their jobs this time, and to really represent their clients, they’re going to get sick,” Brenneman said. “And I don’t think that should be the price of admission for participating in our government.”
In the struggle to decide whether to testify in person or remotely, contract lobbyist John MacDonald said it’s no easy choice.
MacDonald appeared before the House Judiciary Committee Jan. 6 to testify against a gun rights expansion bill on behalf of the City of Missoula. MacDonald echoed Brenneman’s sentiments about the importance of face-to-face interaction with lawmakers, which is why he chose to testify in person.
“I went up there because it was an important bill for Missoula, and I was not completely confident that testifying on a Zoom platform in that scenario was going to work,” MacDonald said in an interview. However, witnessing the Zoom testimony over the rest of the hearing convinced him it could work.
But MacDonald was conflicted over the Capitol’s COVID-19 safety measures, expressing appreciation for capacity limits in hearing rooms and concern over interactions in the hallways.
Mike Batista, the director of government affairs for AARP of Montana, knows the value of hallway conversations, something his lobbyists will largely lose this year.
The population Batista serves at AARP is one highly vulnerable to the coronavirus, and his volunteer team of advocates won’t be able to enter the Capitol during the session.
“The type of work that goes on at the Legislature is a relationship business,” Batista said in a phone call. “We won’t have the same kind of access and interactions as in the past.”
Regardless of the storm of questions still unanswered about how public access to Montana’s legislative process may evolve this session, leadership for the Republican majority insists the public will be heard.
“The COVID-19 pandemic has forced us all to adapt, and that includes the Legislature,” Senate President Mark Blasdel, R-Kalispell, said in a Jan. 6 press release. “This session, Montanans will have more opportunity to make their voices heard than ever before in the history of the Legislature.”
The statement came a day after Sen. Regier’s walk back of his original decision to disallow remote public testimony in the Senate Judiciary Committee. Sen. Diane Sands, D-Missoula, is a member of the committee, and celebrated the confirmation the public would be heard, whether in the Capitol halls or in their own homes.
“The constitution has a very clear mandate for the right to participation,” Sands said in an interview. “This early in the session, I think that’s a major accomplishment.”
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Austin Amestoy is a reporter with the UM Legislative News Service, a partnership of the University of Montana School of Journalism, the Montana Broadcasters Association, the Montana Newspaper Association and the Greater Montana Foundation.