Sometimes in the realm of politics and public policy, it’s time to step back, take a deep breath and admit to ourselves that something is not working.
In the eyes of many policy makers, that time has come for the office of the Montana Commissioner of Political Practices. Since it oversees the election process, it’s always had to deal with contentious issues, but it did a decent job right up until 2011. That’s when Governor Schweitzer, followed by Governor Bullock, began nominating highly-partisan political operatives to fill the post of Montana’s top election cop. Previous governors on both sides of the aisle recognized the need for balance and non-partisanship in such a highly-charged role. They nominated political moderates, and those moderates were confirmed by a state Senate controlled by both Republicans and Democrats; that is, until 2011, the year the train left the tracks.
Governor Schweitzer’s nomination of a highly partisan operative caused Republicans to balk, and she became the first nominee to fail confirmation since the office was established in 1975. Undaunted, Governor Schweitzer then put up two more nominees who failed confirmation. In 2015, Jonathan Motl became the first nominee to be confirmed in four years, but his confirmation was not without controversy. He was also viewed by Republicans as highly political, and they, again, refused to confirm. Motl was only confirmed when a small cohort of liberal Republicans joined with Senate Democrats to provide the necessary votes. Motl was confirmed to fill the last two years of the six-year term that began in 2011. Democrats then filed suit last year, claiming that Motl was entitled to a full six-year term and should be allowed to serve until 2019.
Montana Attorney General Tim Fox then filed a motion asking the court to allow him to intervene and move the case directly to the Montana Supreme Court. He argued that time was of the essence and the Court needed to rule quickly while the 2017 legislature was still in session. The motion was approved, and yesterday the Supreme Court issued its decision saying that Motl’s term did, indeed, expire at the end of 2016, but allowing him to remain in office until a replacement is “qualified,” whatever that means. The strange wording set off another round of debate with Motl saying he would stay in office until a replacement is confirmed, while Senate Republicans say he needs to leave once a nominee is named.
Nothing’s ever easy in this business, and the whole exercise may be moot anyway, since the conventional wisdom is betting that Governor Bullock will nominate Jamie McNaughton, the current number two in the Office of Political Practices, who would then hire Jonathan Motl back as her number two, so that the office never changes.
So what should we do? Clearly, it’s time for a real solution. Other states have political practices offices made up of three or five-member panels so that the power can’t be consolidated in the hands of one political activist. Others don’t even have an office of political practices. A solution set forth in the current Montana legislative session is House Bill 340, which is scheduled for a hearing before the House Judiciary Committee tomorrow morning at 8 a.m. This bill would eliminate the office of political practices and shift the election reporting duties to the Secretary of State’s office, and the enforcement duties to the Attorney General’s office. Whatever the solution, it’s clearly time for a change, because the present system is not working.