Inside influence: Should state agencies lobby the Legislature?

(Note: Rest assured that if a 'non-governmental organization' with the other view of this issue were pursuing similar avenues, Ochenski would likely be either voicing glowing approval or remaining silent. Both articles bear thoughtful reading. See: for more on this admirable effort by Gary Marbut.)


February 8, 2007


By George Ochenski

Vol. 18, No. 6

The Missoula Independent

115 South Fourth Street West

Missoula, Montana 59801


Fax: 406-543-4367

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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 [email protected], 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 pre approval 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.


Copyright 2007, Missoula Independent. 


Additional related reading:


Bill lets agency lengthen special status for prairie dogs


January 13, 2007


No author provided at originating website address/URL


The Great Falls Tribune

Great Falls, Montana

To submit a Letter to the Editor: [email protected] 


Helena, Montana - The Montana wildlife department wants the option of continuing conservation status for prairie dogs, a rodent previously a candidate for protection under the federal Endangered Species Act.

A proposal to erase next fall's termination of a prairie-dog law drew support Thursday from people who spoke about the creature's place in the ecosystem, and criticism from those who consider prairie dogs destructive varmints that compete with livestock for forage. The 1- to 3-pound animal in the squirrel family is the subject of a bill taken up by the Senate Fish and Game Committee.

The measure was introduced at the request of the Montana Department of Fish, Wildlife and Parks, which told the committee that Montana's special status for prairie dogs shows the state is committed to managing them.

In the past there was concern that lack of an active role by Montana and some other states would foster prairie dogs' listing under the species act, and bring burdensome federal restrictions on land use and other activities.

Passage of the bill would allow the continued designation of prairie dogs as non-game wildlife, a designation authorized by the 2001 Legislature and set to expire this October.

The commission overseeing Fish, Wildlife and Parks used the 2001 law to adopt regulations that classify prairie dogs as "non game wildlife in need of management" and regulate shooting of the animals on public land.

Supporters of the bill Thursday included the World Wildlife Fund, Montana Audubon and the National Wildlife Federation.

In 1998 the [National Wildlife] Federation petitioned the U.S. Fish and Wildlife Service to list black-tailed prairie dogs as a threatened species, a listing the service found warranted but precluded because other species had higher priority.

Sterling Miller of the federation's Missoula office spoke Thursday about the interdependence of species and told the committee that prairie dogs are a staple in the diet of black-footed ferrets, "probably the most endangered mammal in North America."

Critics of the bill included Montanans for Multiple Use, the Prickly Pear Sportsmen's Association and the Montana Shooting Sports Association

"A giant hoax" led the Legislature to support prairie-dog legislation in the past, said Gary Marbut [email protected] of the shooting sports group.

"Prairie dogs don't need to be managed," Marbut said. "They're doing just fine."

Miller, a wildlife biologist, said they occupy about 1 percent to 2 percent of their historic range, but Marbut said information he received indicates distribution is much greater.

"The only threats to prairie dogs in Montana are maybe my crosshairs," he said.

Shooting or poisoning prairie dogs on private property in Montana is permitted. Management work by Fish, Wildlife and Parks involves public land and private landowners interested in prairie dogs' well-being, said Chris Smith, the agency's chief of staff.

Critics of the bill told the Fish and Game Committee they object to Fish, Wildlife and Parks spending money on prairie-dog work.

The committee did not act on the bill.


Copyright 2007, Great Falls Tribune.