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Should state agencies lobby the Legislature?

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They say politics makes strange bedfellows and I guess this column will go a fair ways toward proving that’s true. Last week Gary Marbut, of the Montana Shooting Sports Association, went to court to try to stop Montana Fish, Wildlife & Parks from lobbying the state Legislature. Whether he wins or loses his lawsuit, Marbut is not the first to attempt to keep state agencies from unduly influencing legislative policymaking, and he certainly won’t be the last. And his suit raises a legitimate issue that deserves considerably wider and more open public debate.

When and how government agencies and officials lobby the Legislature has long been a point of contention. Critics of the practice say public funds should not be spent to influence public policy, since public agencies are there to implement the laws, not make them—that’s the job of our citizen Legislature. Those who support public agency lobbying claim that without detailed information from the agencies about programs, budgets and priorities, legislators would be unable to make informed decisions. While there is more than a touch of truth to both sides of that argument, there can be little doubt about the influence public agencies and officials do in fact exert on the legislative process.

Marbut’s suit specifically targets only one state agency, the Department of Fish, Wildlife & Parks (FWP). According to the brief filed in support of a request for a Temporary Restraining Order to prohibit FWP from further lobbying the Legislature, Marbut cites a section of state law, 87-1-204 MCA, that seems to explicitly prohibit such activities by FWP employees: “While retaining the right to vote as he may please and to express his opinions on all political questions, no employee may use his official authority or influence for the purpose of interfering with an election or affecting the results thereof or for the purpose of coercing or influencing the political actions of any person or body.”

This week Judge Harkin, of the Fourth Judicial District Court in Missoula, refrained from issuing an immediate Temporary Restraining Order. But far from dismissing the case out of hand, Harkin wrote: “The Court’s review of Plaintiff’s brief and attachments suggest there will be few, if any, factual disputes critical to the determination of the case.” Harkin then went on to request that Marbut serve a “Complaint for Declaratory Judgment and Request for Preliminary and Permanent Injunction” on Fish, Wildlife & Parks “as soon as possible” and submit a proposed briefing schedule. In other words, Marbut’s claim is still in the game.

Whether Marbut wins or loses this very specific case, however, will not resolve the bigger issue of government agencies or officials, funded by public dollars, influencing public policymaking.

Back in 1997, then-Republican Majority Leader of the House, Rep. Larry Grinde, sponsored HB 394, which was co-sponsored by 48 other legislators from both parties, including Lt. Gov. John Bohlinger, former Senate President Bob Keenan, Public Service Commissioner Bob Raney and Missoula Sen. Vicki Cocchiarella. Quite a mix, but certainly indicative of the extent of the concern over the issue.

Under Grinde’s bill, state agencies would still have been able to lobby both the federal government and the state Legislature, but would have been required to receive issue-specific preapproval from the governor for any state or federal lobbying, be registered as a lobbyist, and file a written notice with the legislative finance committee listing the purpose and method of the lobbying and identifying the amount and source of the funding used. The bill would have further prohibited any use of “state time, equipment, supplies, or facilities to support or oppose state or federal legislation or urge others to support or oppose state or federal legislation.” The measure also required the legislative auditor to review agency lobbying expenses and report to the Legislature on the findings.

Grinde’s bill made it out of the House, but like so many other attempts to corral agency lobbying, it did not pass into law. This session, there’s yet another attempt to rein in lobbying by public agencies in HB 163. The so-called Fair Influence on Government Act takes a slightly different tack and requires that specific appropriations for lobbying be approved by the Legislature as part of the budget and expands the requirements to local governments as well as state agencies.

While the bill will probably face the same grim fate as its predecessors, it raises the important issue of lobbying by local governments—and lobby they do. Last week a hearing room was packed with local government officials testifying in support of the local option sales tax. One might wonder just how many of those testifying at taxpayer expense had the approval of the taxpayers to lobby for more taxes. My hunch is that none of them did. Nor, I suspect, did they have taxpayer approval to use taxpayer-funded equipment, supplies and facilities to lobby for more taxes. But make no mistake: with or without the public’s approval, they came to the capitol to lobby for more taxes.

Sooner or later, the issue will be forced to some conclusion.

It would be prudent for any municipal or county government to have, at a minimum, a citizen’s oversight committee to weigh legislative issues and determine which, if any, merit spending public dollars for lobbying activities. It might also be a good idea to limit such lobbying to “informational” testimony only, wherein public entities can inform the Legislature in however much detail is necessary on any given piece of legislation, but may not advocate or oppose in the public policy arena.

This Legislature may once again spurn attempts to regulate lobbying by government agencies, but the issue is not going to go away. If they don’t act soon, one of these days we’re going to see an initiative on the ballot to do it for them—and chances are the citizens will approve it.

Helena’s George Ochenski rattles the cage of the political establishment as a political analyst for the Independent. Contact Ochenski at opinion@missoulanews.com.

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