On Feb. 3, 2020, President Trump declared a Public Health Emergency. On March 12, 2020 Governor Bullock declared a Montana Public Health Emergency. Both orders remain in effect. This “Public Health Emergency” is likely to last well over a year. A 50-state combined federal emergency has never occurred in America before, let alone one that will last more than one year.
Why does this matter? States of Emergency are accepted in the law as a rationale or pretext for suspending rights and freedoms guaranteed under the Constitution. For example, President Abraham Lincoln used an emergency declaration to suspend habeas corpus, the requirement that an accused individual be sent to the court for a fair trial.
Keeping the public safe requires a quick decisive response to natural disasters, wars, pandemics, and other emergency events. This necessitates the granting of some special executive emergency authorities. The current Coronavirus could have been as deadly as Ebola, or the nation could have faced a nuclear attack. However, there is increasing evidence that too much constitutionally-granted legislative authority and too many constitutionally guaranteed public rights were ceded to the Executive (Governor) under the prolonged COVID-19 emergency declaration.
Consider the emergency authority allowing the Executive to spend money without oversight:
•On March 27 the first Cares Act became law. Cares Act 1 distributed $1.25 billion federal dollars of aide to Montana, an amount larger than 50% of the entire state General Fund.
•Approximately $100 million was distributed under Executive direction by June 30, 2020, representing the rapid response.
•The remaining $1.15 billion is still trickling out, all with no legislative oversight and limited public input.
Under non-emergency situations, Montana’s Constitution vests all Appro-priation power in the legislature, thus providing opportunity for voices from across Montana to be heard.
Article VIII Section 12
of the Montana Constitution:
The legislature shall by law insure strict accountability of all revenue received and money spent by the state and counties, cities, towns, and all other local governmental entities.
Yet, due to the emergency declaration granting enhanced executive authority, the legislature never had the opportunity to weigh in on the $1.25 billion spent.
The extended nature of the Coronavirus emergency revealed flaws in our current emergency response designs. I am proposing HB 159 to ensure that the Montana public never again cedes too much purse string authority to the Executive. The goal is to put the public voice back at the table.
HB 159 requires that the Executive engage the legislature if an emergency requires the expenditure of amount greater than 5% of the General Fund (approximately $110 million).
The Executive will still be able to act quickly with up to $110 million, but subsequent spending will require that the Executive present an appropriation plan to the legislature for approval. The process defined in the bill sets up a rapid procedure where the public can testify, and the legislature can weigh in via poll.
This resets the balance of power, providing the Executive sufficient initial funds and authority to deal with most fire, water, flood, earthquake, and other such emergencies quickly, while ensuring that, on extended events such as the Covid 19 Pandemic, elected representatives and the Montana public are provided the opportunity to weigh in.
It is critical that we ensure the freedoms and rights guaranteed under the Constitution are protected.
Thank you for allowing me the honor of being your voice in the Montana Legislature.