Johnson reflects on Con-Con

By CHUCK JOHNSON

Fifty years ago, at age 23, I covered the Montana Constitutional Convention for the Associated Press. It was a dream assignment.

I was pretty wet behind the ears, although I’d already had summer jobs with the AP and two newspapers and internships for both a U.S. and a state senator.

Sixty-five percent of Montanans voted in 1970 to call a Constitutional Convention in 1972. The state’s 1889 Constitution, passed as a condition of Montana being admitted as a state, was a wordy, creaky document that provided for a weak state government. It treated the copper mining companies well. Copper King William A. Clark was the convention’s president.

By the early 1970s, the political mood in Montana had transformed. Reform was in the air. The women’s movement was in full force, with the League of Women Voters of Montana playing a vital role. The first Earth Day came in 1970, and Montana had a budding environmental movement. The legal voting age had dropped. Organized labor’s power here was at its peak.

In an important decision, the 1971 Montana Supreme Court ruled that existing officeholders such as legislators, mayors and county commissioners could not also run to be Con-Con delegates. If they won, they would be holding two elective offices simultaneously. Some legislators were furious.  

This ruling opened the door for anyone else to run for delegate, and they did in droves. A total of 515 candidates filed in the primary for the 100 delegate seats: 247 Democrats, 232 Republicans, 32 independents and four New Reform candidates.

Delegates were chosen at a special election in November 1971. With the divided 1971 Legislature and Democratic Gov. Forrest H. Anderson at loggerheads for months, they agreed to put the parties’ alternate tax solutions on the same special election ballot as the delegate selection and let voters decide. By a 70% to 30% margin, voters crushed the Republicans’ sales tax solution.  

The voters’ defeat of the sales tax propelled Democrats to a huge majority at the convention. Democratic delegates outnumbered Republicans, 58-36, and six independents were elected. 

Nineteen women were elected, a sharp increase over the two women among the 159 legislators in 1971. By occupation, there were 24 lawyers, 20 farmers and ranchers, 17 business owners, 13 housewives, five clergymen, four media employees, a beekeeper and a retired FBI agent. All in all, it was a pretty darned good mix of Montanans. Conspicuous by their absence were any American Indians, who were penalized by the existing districts. 

Before the convention began in January 1972, delegates made two critically important decisions to minimize partisanship and promote bipartisan harmony.

Leaders of the big Democratic majority agreed to share power with the leaders of the Republican minority, something that happens in the Montana Legislature only if a chamber is evenly split by party. Democrat Leo Graybill of Great Falls was elected president. Republican John Toole was picked as vice president. Other offices and committee chairmanships were evenly divided between the parties, with vice chairs who were of the opposite party of the chairs.

Delegates decided to sit in alphabetical order, from Magnus Aasheim of Antelope to Robert Woodmansey of Great Falls. In contrast, the Legislature still sits with Republicans on one side of the center aisle and Democrats on the other, like warring factions. I suggested in newspaper columns several times that lawmakers ought to follow the convention delegates’ good example, but it fell on deaf ears.

As a legislative intern in 1971, I had seen how the Legislature operated. It wasn’t pretty at times. When committees went into their critical executive sessions to vote whether to pass, amend or reject bills, the meetings were closed to the public. Key second-reading floor votes, which followed debates, were never recorded, although the final, third-reading votes were. Lobbyists had access to the lawmakers on the House and Senate floors every day after a waiting period when the House and Senate concluded work. Businesses and interest groups that hired lobbyists never had to disclose how much they spent wining and dining lawmakers to try to influence them. 

Convention delegates took a far different approach. All legislative committee meetings were open. (Well, not all of them. Great Falls Tribune reporter John Kuglin, a fierce Montana open-government advocate, decided to put the openness to a test. He crashed an early morning leadership meeting in Graybill’s office but was booted out. Graybill ordered him to take his “damn coffee cup” from the president’s desk with him on his way out. For a few days, other reporters nicknamed him “Coffee Cup” Kuglin.)

Delegates welcomed reporters and made time to talk to us. In fairness, that’s pretty much how it was when I covered the Legislature.

All Con-Con floor votes were recorded. Lobbyists were never allowed on the House floor. Anyone spending money to lobby delegates had to file a financial disclosure report with the state. It took a voter-passed citizen initiative in 1980 to require legislative lobbying expenses to finally be disclosed.

After passage of the Constitution, the Legislature had to open its closed committee meetings and record all floor votes.

A big rub at the Legislature over the years has been closed-door party caucuses. 

Led by John Kuglin, media groups achieved a state Supreme Court victory in the late 1990s to open party caucuses. We kind of won the battle but lost the war. Caucuses became boring press conferences attended by the rival party’s staffers. The real caucuses were moved off the Capitol campus. The latest trick, recently upheld by Montana Supreme Court, is for legislative party members to meet in numbers less than legal quorum to evade the open-caucus ruling. 

The Con-Con had only a few caucuses, including an open Democratic caucus in which Graybill emerged the winner from a field of 13 Dems running for president.

Delegates invited and encouraged Montanans to submit their ideas, which were heard by committees, just like delegates’ proposals. I covered one emotion-packed hearing on an Alberton woman’s idea to create a constitutional right to die with dignity, as her ailing father wanted. My story went national on the AP wire. The right-to-die idea was rejected.

Delegates invited some eminent speakers to address them some evenings. Peace advocate Jeannette Rankin, who as a Montanan was the first woman elected to Congress, proposed a new method of ranking and choosing presidential candidates in primaries. Famed aviator Charles Lindbergh, whose son lived in Greenough, east of Missoula, urged delegates to provide strong environmental protections.  

Unlike Montana legislators, convention delegates weren’t trying to score points for their next campaigns. In a way, delegates answered to a higher calling, to borrow from the slogan for Hebrew National’s kosher hot dog. 

Whatever the delegates proposed as the new constitution, it had to pass muster with Montana voters to take effect. It barely did. Montana voters ratified the Constitution in June 1972 by a razor-thin margin of 2,532 votes, or 50.55% to 49.45%.

It wasn’t all roses and lollipops during the convention. Delegates had fierce debates over issues such as the right to a clean and healthful environment and to maintain a ban on taxpayers’ funds going for religious schools, which held up until the U.S. Supreme Court overturned it in 2020. But when each day ended, for the most part, delegates seemed to patch up their differences and enjoy each other’s company. That doesn’t always happen at the Legislature.

The legacy of the Constitutional Convention on reporters afterward was to push us to get into more closed meetings and seek more government documents. They had seen how a mostly open Constitutional Convention had worked and wanted to push it with future Legislatures and elected officials. It’s been a mixed bag. 

John Kuglin, later the AP bureau chief for Montana, and many news organizations formed the Montana Freedom of Information Hotline in 1988. Since then, it has retained a lawyer to offer advice to the public and reporters about how to gain access to meetings and documents.

Ironically, we sometimes were vexed by the 1972 constitutional provision that called for open government meetings and public documents unless the right to individual privacy exceeds the merits of public disclosure. Many lawsuits have been filed over these issues. Soon after the Constitution took effect, citizens and media were winning many of the challenges. In recent years, courts often have been less friendly to right-to-know cases.