In Montana’s Right to Participation, the Seeds of a Better Democracy
Ideas to improve our democracy often pop up in unexpected places. The initiative and referendum, for instance, were first enacted in South Dakota in 1898 thanks to the leadership of Father Robert Haire, who “made his way on foot, horse, buggy, and train” across his expansive parish to preach a gospel of people-powered governance. Today, more than half the states empower their people to exercise their democratic voice through initiatives or referendums. Momentum to directly elect U.S. senators caught on thanks to William U’Ren, an Oregonian who fiercely advocated for new democratic tools that held representatives more accountable to the people. Within a few years, U’Ren’s advocacy, amplified and acted on by like-minded reformers, resulted in the ratification of the 17th Amendment and a constitutional guarantee that all citizens can directly vote for their senators.
The next wave of democratic reform might be hiding in the Montana Constitution.
In 1972, Montanans ratified a new constitution that included the “Right of Participation.” This unique right affords Montanans “the right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law.” No state has since copied the provision, though some have considered it.
The drafters of the provision had bold aspirations. They intended it to operate, in part, as a “constitutional sermon designed to serve notice to agencies of government that the citizens of the state will expect to participate in agency decisions prior to the time the agency makes up its mind.” A narrow interpretation of that sermon would emphasize the right’s limited applicability to decision-making by state administrative agencies. In other words, the drafters merely wanted agencies to provide the public with notice of proposed rules and an opportunity to comment on those rules.
Sermons, though, tend to lend themselves to more expansive readings, and the democratic preachers who delivered the right to participation homily didn’t disappoint. One delegate, Bob Harbaugh, remarked that the committee responsible for drafting the right intended it as a “commitment at the level of fundamental law to seek structures, rules, and procedures that maximize the access of citizens to the decision-making instructions of state government.”
Building on that notion, another delegate emphasized that the right to participation aligned with a much loftier principle: “that the public and the people are actually the boss of the government and the government is the service of the people.” He interpreted the provision as a straightforward application of that principle — permitting “the boss” or “the people” to monitor and direct “the employees” or “the government.”
The Montana Supreme Court appears to have missed that part of the sermon. Despite adopting a rule of constitutional interpretation that rests on the intent of the drafters — “the intent of the Framers controls the Court’s interpretation of a constitutional provision” — the court has construed the right of participation as stagnant and insignificant.
Consider that in the 2006 case of Jones v. County of Missoula, the court concluded that a county commission fulfilled citizens’ right of participation and complied with the state statute intended to effectuate that right when, prior to voting to amend the county’s health insurance program to provide coverage for domestic partner benefits, the following occurred: a local paper published an article stating the county would reach a decision on the issue sometime in the next month, the county posted a notice that the issue would be discussed at a specific meeting, the county emailed the agenda of that meeting to the local paper, and the commissioners voted on the issue during that scheduled public meeting.
The dissent, however, picked up on the sermon’s obvious undertones. Justice James Nelson looked to notes from the state constitutional convention and highlighted that the framers introduced the right of participation based on “increasing concern of citizens . . . that government’s sheer bigness threatens the effective exercise of citizenship.” He then added facts glossed over by the majority: the agenda item at issue was in small typeface, it was indistinguishable from other items on the agenda of far less public import, and it was posted on a physical bulletin board outside of the commission’s office. Nelson also pointed out that, per the facts before the court, it was unclear if the agenda was even posted to the commission’s website.
Simple steps, per Nelson, could have increased the odds of meaningful public participation, such as listing the item in bold text, specifying the time at which it would be heard, and placing the item in a special part of the agenda. Even those small steps, though, would be a sin in the eyes of the priests of participation. It’s hard to imagine Delegate Harbaugh, for instance, agreeing that merely changing the format of the agenda would “maximize the access of citizens to the decision-making instructions of state government.”
The framers of the Montana Constitution planted a seed for the idea of an evolving right of participation that permitted meaningful public oversight of agencies, the “fourth branch” of state government. The concerns of 1972 Constitutional Convention delegates — that state administrative agencies are not “materially affect[ed]” by elections nor subject to sufficient “political pressure . . . to juvenate response to public need” — remain true today. Yet, despite new means of encouraging and actualizing public participation, Montana state agencies are fulfilling this aspirational right with minimal effort and limited use of modern tools ranging from deliberative polling to citizen assemblies. Many other states have similarly held back from regularly employing such participatory tools.
That said, disciples of U’Ren, Haire, and the Montana delegates have achieved some success. Consider that South Carolina and Oregon — two states with very different political leanings — have used deliberative citizen forums to guide government action. This bicoastal, bipartisan recognition of new ways to empower the people to guide their democracy hints at a new era of public participation and oversight.
The right of participation deserves more attention and more litigation. What starts in Montana, like what started in South Dakota and Oregon, may spread to other states and initiate a step forward in democratic participation.
Kevin Frazier is an assistant professor of law at the Benjamin L. Crump College of Law at St. Thomas University. He previously served as a clerk on the Montana Supreme Court.