Where there's a will there's a way to chill it

Is it just me or do the Republicans in the Montana Senate seem a little schizophrenic? A couple of weeks ago they cut 15,000 kids from eligibility in the Children's Health Insurance Program (CHIPS) because they said they didn't have the money (they did), and last week they passed three bills that would help the mentally ill in crisis situations even though they didn't have the money (they didn't). Well heck, just use the money they took from the kids' health care piggy bank.

Last November citizen Initiative 155 - "Healthy Montana Kids" - passed with overwhelming support from Montana voters. It expanded CHIPS eligibility for an additional 30,000 children and is now Montana Law, but the authority to fund it, or for that matter any other citizen initiative, belongs to the Legislature and cannot be done through a popular vote. So when it came time for the 2009 Legislature to authorize the funding for the program, the Senate said, "nope" and reduced the program by half, cutting 15,000 kids from CHIPS eligibility. That freed up money for their own projects, such as giving $600,000 to a Kalispell company for doing environmental cleanup work.

Even if it can't appropriate money for a project, a citizen initiative can identify a funding source, and Healthy Montana Kids is funded by diverting taxes on insurance companies from the General Fund into a special account dedicated to Healthy Montana Kids. Now the Republicans in the Senate have un-diverted half of that money back into the General Fund. The legislature can do this; it can change any citizen initiative that is passed by the voters because it is just another law, and like any other law, it can be amended into oblivion, or in this case, halfway to oblivion.

It may not always be good politics to change a law right after the public has had to resort to the initiative process to take matters into their own hands, but it's done fairly often, and usually there is scant repercussion. There are basically two reasons the legislature would make changes to a law enacted by initiative; it's either "we don't like it" (which the public had already figured out, that's why they passed it), or it doesn't work with existing law (like trying to run a gas engine on diesel fuel) and changes need to be made to make it work.

Healthy Montana Kids is a prime example of why we have an initiative process - it's the will of the citizens to do something that the legislature is reluctant to do. But, because it is only a law, the legislature can undo it. If you want to make law that is "legislature proof" it's done by an initiative to amend the Montana Constitution. A constitutional change enacted by Initiative can't be changed by the legislature, only by the people.

Here's an interesting example of the difference between a citizen initiative to change law and a citizen initiative to change the Constitution. Voters in both Montana (1992) and Idaho (1994) passed term limit initiatives restricting the amount of time elected officials could be in office. In Montana the voters amended the Constitution, but in Idaho they amended the law, and just about the first order of business in the subsequent session of the Idaho legislature was to put the term limits law in the trash can. Legislative attempts to pass changes to Montana's law by initiative have failed.

Whether or not the Senate Republicans can escape adverse reaction by changing the Healthy Montana Kids mandate is something yet to be seen, but the 70 percent margin by which I -155 passed is an indication of Montanans' concern about the cost and availability of health care coverage, and not just for their kids. In the area of health care coverage the legislature will do only as much as the health insurance industry is willing to do, which is very little. And if they do anything at all it's a only sop to an angry public to keep the voters from doing more.

It's not good public policy, but it seems to be still working for them.

Jim Elliott is a former state senator from Trout Creek. He served in the Montana House 1989 to 1996 and the Montana Senate from 2001 to 2008.