In Week 7 of the Montana Legislature: Privacy Protections, Voting Restrictions, Bison Bills and Pandemic Preparedness

Montana Constitutional Amendment would Establish Protections for Electronic Messages

The Montana Legislature is considering a bill proponents say will offer increased clarity and protections for privacy in the digital age.

Senate Bill 203, sponsored by Sen. Kenneth Bogner, R-Miles City, seeks to ask voters to amend Montana's Constitution to add language to Article II, Section 11 that would explicitly protect electronic data and communications from illegal searches and seizures.

At the bill's first hearing on Tuesday, Feb. 16, Bogner described the measure as a necessary and modern update to Montana's privacy protections, which were established in the 1972 Constitution.

"It's no longer just about our papers and effects," Bogner said. "The majority of everything we do now is electronic. This amendment will ensure that data privacy projections are always the default."

Article II, Section 11 of the Montana State Constitution currently reads: "The people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures." SB 203, if passed by Montana voters, would add "electronic data and communications" between "papers" and "homes."

Supporters of the bill said it was necessary to affirm that Montana's already strong privacy protection rights apply to electronic property, which is becoming increasingly relevant.

"Our privacy protections should not vanish because of technological innovation," said Patrick Webb, representing Americans for Prosperity Montana.

Brian Thompson, representing the Montana County Attorneys' Association, said the organization was "okay" with the bill, given that most in the law community believe the Montana Constitution already provides protections for electronic communications through interpretations of the word "effects." Thompson said clarifying those protections through explicit language would be appropriate.

Opposition came from Mark Murphy, representing the Montana Association of Chiefs of Police, who expressed concern over the bill's unprecedented nature in amending the criminal justice portion of Montana's Constitution.

"What I see in this change is potential for unintended consequences," Murphy told committee members. "If we can't predict the result, we shouldn't pass the change."

Sen. John Esp, R-Big Timber, brought up the example of undercover officers investigating potential crimes through online messaging services, saying those could be considered examples of protected communications under the amendment.

Thompson refuted the idea, saying he believed the internet does not carry the same "reasonable expectation of privacy" as one does in their home.

The committee gave unanimous approval to SB 203, which will head to the full Senate for additional debate.

Bills Limiting Voter Access in Montana Gain Traction

The Montana Legislature is moving quickly to advance bills applying new restrictions on voter registration and identification in the state.

After a contentious stint in the House of Representatives, House Bill 176, sponsored by Rep. Sharon Greef, R-Florence, is now in the Senate.

"The focus of House Bill 176 is not to burden. It is not to disenfranchise, and it is not to provide a forum for a historical debate, but it is to administer an election with complete fairness to all voters," Greef told the Senate State Administration committee on Monday, Feb. 15.

In its current form, the bill would close voter registration at noon the day before an election. When first introduced, the bill would have closed registration the Friday before an election, but a House committee amended the bill before passing it on to the full House.

During debate on the House floor, many Republicans expressed displeasure at the amendment, saying it walked back the original purpose of the bill, which was to provide for "election integrity" by eliminating long polling lines on election day and preventing fraud. There is no evidence in Montana, nor nationwide, supporting claims of substantial voter fraud.

One private citizen spoke in support of the bill during its Senate committee, and two people spoke against the measure, including an elections administrator.

"I wanted to be on the record saying this will not help me," said Audrey McCue, who oversees election administration in Lewis and Clark County. "We don't have problems with the integrity of our elections, and certainly none caused by election-day registration."

Also advancing through the Legislature, Senate Bill 169 would create new voter ID restrictions in Montana, also in the name of what proponents call "election integrity."

Sen. Mike Cuffe, R-Eureka, carried the bill on behalf of Montana Secretary of State Christi Jacobsen. Ninety other GOP Representatives and Senators signed on in support of the bill.

During the bill's initial hearing, Cuffe told members of the Senate State Administration it was intended to address a nationwide "cry" for election integrity, though it wasn't specifically addressing any perceived problems with Montana's elections.

"We believe our elections are conducted in a fair and honorable fashion -- we simply want to make a good process better," Cuffe said. "We want to make sure Montana avoids potential future problems."

The bill would alter Montana's existing voter ID laws to require additional identification when some currently accepted forms are used, such as student ID cards.

Jacobsen testified in the committee personally to support the bill, saying passing a voter ID law was her number one campaign promise to voters.

Some proponents of the bill echoed the nationwide outrage over unfounded claims of fraud in the 2020 election.

Helena resident Cindi Hamilton called the 2020 election "corrupt" and reminiscent of a "banana republic."

"I don't think it is too much to ask for any Montana voter to provide a photo ID in order to register and then in order to submit a ballot," Hamilton said. "I sure hope you all agree with that."

Opponents of the bill worried that the new restrictions would prevent some eligible Montanans from voting, including some tribal members whose cards do not have a picture.

"By preventing citizens from voting, Senate Bill 169 actually reduces election integrity, and is therefore harmful to our democracy," said Nancy Leifer, President of the Montana League of Women Voters.

The bill cleared the committee, later passing the Senate in a 31-19 vote. The House of Representatives is now considering the bill.

Montana Legislature Takes Up Bundle of Bison Bills

Bills altering the way Montana regulates its bison populations are gaining traction and drawing debate in the state Legislature.

The bills would make a number of changes if passed, including redefining the term "wild bison," requiring county approval before bison could be released in that county, lifting limitations on the transfer of bison to Native American tribes and allowing bison with brucellosis to be quarantined on tribal lands.

House Bills 311 and 312, both sponsored by Rep. Marvin Weatherwax, D-Browning, debuted in the House Agriculture Committee on Feb. 11.

"Bison are incredibly important to my constituents," Weatherwax, who represents portions of the Flathead and Blackfeet reservations, told committee members.

HB 311 would ease some of the regulations of the transfer of bison to tribal lands in Montana by allowing bison to be transferred to reservations from National Parks and out-of-state preserves without requiring permits and certifications from state health officials.

Weatherwax said the maintenance of Montana's tribal nations' bison herds requires the constant introduction of new bison to diversify the gene pool, and that paying for certificates and permits unnecessarily adds to the cost of importation.

"Easing regulatory burdens on Montana tribal bison herds promotes economic development, provides a sustainable food source, and strengthens tribal culture," Weatherwax said.

Tribal members who spoke in support of the bill echoed Weatherwax's sentiments that improved bison access for tribes would benefit members economically and spiritually.

"Tribal members see the returning growth of buffalo on our lands as a healing effort from the near eradication of these majestic animals on the plains landscape," said Lauren Monroe Jr., a member of the Blackfeet Tribal Business Council.

Opposition to the measure came from several agricultural organizations that said changes to the way Montana handles disease control in livestock would damage the state's ranches by exposing livestock to brucellosis outbreaks.

Raylee Honeycutt, representing the Montana Stockgrowers Association, said the bill would risk brucellosis escaping from designated surveillance areas where bison are monitored for the disease.

"Brucellosis can be transferred to wildlife, and wildlife does not know boundaries," Honeycutt said. "Therefore, there is potential for infecting cattle through wildlife."

Weatherwax also sponsored HB 312, which would prevent bison from being led to slaughterhouses after testing positive for brucellosis, instead allowing them to be transferred to tribal reservations for quarantine.

Two bills heard in the committee on Tuesday, Feb. 16, would add further restrictions on the transfer of bison throughout the state.

Rep. Kenneth Holmlund, R-Miles City, is sponsoring House Bill 318, which seeks to "clarify" the definition of bison by adding new stipulations that wild bison must never have been "reduced to captivity," or have been subject to livestock fees or owned by a person.

Holmlund said change would safeguard wild bison from potential brucellosis exposure from domestic bison carrying the disease by preventing their release into the wild.

Supporters of the bill included agriculture organizations and county representatives who said the bill would provide clarity. Opponents said the new definition is more restrictive and would hinder efforts to restore wild bison herds.

Chamois Andersen, senior representative of Defenders of Wildlife, said the changed definition would prevent bison previously managed on grazing lease lands from being transferred onto other public lands to be managed as wildlife.

"Bottom line: this bill limits the state's ability to manage bison as wildlife, which goes against what the majority of Montanans want," she said.

HB 318 passed out of committee in an 11-6 vote and will now head to the full House for additional debate.

The committee also heard testimony on House Bill 302, sponsored by Rep. Joshua Kassmier, R-Fort Benton. The measure would require that county commissioners give approval for the transfer of wild bison that are certified brucellosis free by the state onto county land, usurping the state's current authority to do so without approval.

Kassmier clarified that the bill would not prevent any entity from prohibiting the transfer of bison to tribal lands.

Proponents of the measure said the bill would provide a "check and balance" to the power of the state to move wild bison if counties do not want herds on their land.

"There's a lot of people that appreciate wild bison; they gain some form of utility from having wild bison out on the landscape," said Charles Denowh, representing United Property Owners of Montana. "But we have to remember there are costs, too, and those are born almost entirely by land owners."

Opposition to the measure came from conservation and tribal representatives who said the bill isn't reflecting the wishes of Montanans that value wild bison for tradition or ecological reasons.

"House Bill 302 directly undermines all the years of hard work Indigenous peoples have put into bringing bison back into our land," said Kelli Twoteeth from Montana Native Vote. "All land in Montana belonged to Indigenous people, and wherever you are, you represent Indigenous constituents."

Pandemic-Related Bills Debut, Advance in Montana Legislature

A slate of bills dealing with the COVID-19 pandemic and its fallout are working their way through the Montana Legislature, addressing everything from telehealth to preparedness plans for future health emergencies.

House Bill 388, sponsored by Rep. Ed Stafman, D-Bozeman, would create a health crisis preparedness working group under the Department of Emergency Services that would be in charge of preparing for health disasters, including the maintenance of a stockpile of personal protective equipment to last Montana hospitals 90 days.

Stafman said the bill came from conversations with his constituents, many of whom felt the state was ill prepared for the COVID-19 pandemic. Renowned science journalist David Quammen, who lives in Stafman's district, also helped him draft the bill. Quammen accurately predicted the basics of the COVID-19 pandemic in his 2012 book "Spillover: Animal Infections and the Next Human Pandemic."

"We can't get caught on our heels again," Stafman said. "We learned in this pandemic that we can't rely on the feds, that's for sure. Preparedness is an important job as we serve our constituents and the State of Montana."

The bill would require that the stockpile of equipment is kept from expiring by selling and replacing a portion of it each year.

Proponents of the measure included statewide medical organizations that echoed Stafman's comments about preparedness. Rich Rasmussen, CEO of the Montana Hospital Association, said the nation used 25 million N-95 masks in all of 2019. During the COVID-19 pandemic, that number rose to about two billion, he said.

CEO of the Montana Nurses Association Vicky Byrd said the bill would help ease the burden on nurses in future health crises, many of whom were forced to sanitize and reuse disposable PPE during the early months of the pandemic.

"Nurses are tired, but they're super resilient," Byrd said. "Let's learn from the recent and ongoing PPE challenges and let's keep our workers safe."

No one testified in opposition to the bill.

Meanwhile, a bill seeking to expand telehealth access in Montana is flying through the state house, passing unanimously out of the House of Representatives and now working its way through the Senate.

House Bill 43, sponsored by Rep. Rhonda Knudsen, R-Culbertson, would require that private and public health insurance providers cover all telehealth appointments and procedures that would normally be covered through a face-to-face appointment, regardless of the location of the doctor or the patient.

"I live in a very rural part of the state, and this bill speaks to my constituents," Knudsen said.

The Senate Public Health, Welfare and Safety committee heard the bill on Wednesday, Feb. 17, where it received glowing endorsements from government officials and insurance providers alike.

State Auditor Troy Downing requested the bill, and agreed with Knudsen's assessment that telehealth access is critical for Montanans who live in rural areas, sometimes hundreds of miles away from the nearest hospital.

Dan Brooks, representing the Billings Chamber of Commerce, told committee members that increased access to telehealth services would increase productivity and health outcomes for workers.

"A healthier workforce is a benefit to our business community, so we encourage your support on House Bill 43," Brooks said.

Like HB 388, HB 43 did not receive any opposition during its hearing.

Other bills introduced earlier this session seek to limit the powers of local health boards to issue mandates. House Bills 121 and 236 both passed out of their first House committees, but were referred back to the House Business and Labor Committee before they advance. The bills take differing approaches to ensure "accountability" in health officials' decision making: HB 121 allows local governments to modify or reject the mandates of health boards, while HB 236 would require that elected officials approve decisions from health boards and take away the boards' ability to issue criminal citations.

House Business and Labor Committee Chair Mark Noland, R-Bigfork, said the bills' sponsors will work to consolidate them into a singular piece of legislation.

The House also passed House Bill 257, sponsored by Rep. Jedediah Hinkle, R-Belgrade, which would prevent governmental entities and local health officials from issuing regulations or mandates that hinder private businesses' ability to conduct business.

During debate on the House floor on Wednesday, Feb. 17, Hinkle said 2020 was a trying year for businesses, and cited Gallatin County's "strict" health orders that he said caused several businesses to close.

"These businesses are the livelihoods and dreams of many of our residents," Hinkle said. "House Bill 257 seeks to remedy this problem by protecting businesses from retributive actions by government entities."

Democrats in the House spoke against the bill, saying it demonizes public health officials and negatively impacts the ability of the state to prepare for the next pandemic.

"My real concern with this legislation is, like is often said in the military, it's fighting the last war," said Rep. Tom France, D-Missoula.

The bill ultimately passed 66-33 and will now be considered by the Senate.

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. He can be reached at [email protected].