The Right to Know and the Montana Constitution

Dorothy Eck | Constitutional Convention Delegate

My political life in Montana really started in the late 40's when my husband was hired to teach architecture at the University in Bozeman. We had come from Washington with two small children and absolutely loved Montana. We loved the mountains and the rivers and we liked to fish and go camping and we found that the schools were wonderful and it was a good place to be a part of the University community.

But as soon as a political campaign started, I found Montana really did have a problem. We were known as the state that wore the Copper Collar. We were controlled by the Anaconda Company.

I soon heard all of these stories about how politics worked in Montana, about how the company, along with Montana Power, worked together to recruit candidates from both parties for all kinds of public offices and were usually successful in getting them elected. There were also all types of wonderful stories about how, for favorable votes, these companies would cable money over to elected officials’ hotel rooms, or how their lobbyists would sit in the balcony at the Legislature and indicate thumbs up or thumbs down for how they wanted officials to vote.

It didn’t matter which party was in control, Republicans or Democrats, because really the corporations were in control.

People in Montana accepted that. I can remember our discussions. They said, “Well it is hard to know how we can shake this collar off. We tend to live with it. We spend our energies on other things.”

Additionally we put up with the newspapers, which were mostly all controlled by the Anaconda Company. I can remember in the middle of campaign season the front page of the newspaper would have great pictures and stories about who was running for prom queen, but almost nothing about who was running for the Legislature or other public offices.

I countered this in a way and joined the League of Women Voters. The League at that time chose political issues to study. Yet it really wasn’t easy getting information on our chosen issues. In those days the bills came running off the mimeograph machine and you would have to pick up a pile of bills, skim through them, see which of them were relevant to the League’s positions, and then decide to act accordingly. We also found that we could show up at committee hearings and members would listen to us. However the Executive Committee meetings of the various committees were all closed, no public allowed. No minutes were taken. There was no idea of who voted for or against the bills you were interested in.

That was a problem.

We managed to find colleagues who would sneak us little bits and pieces of information about what was going on in these committees. But it was even more troublesome when the bills came to the floor of the House or Senate for debate. There wasn’t really a lot of debate, but there was some. When it came to voting, their votes would flash, briefly, up on the board in front of each legislator but then they disappeared. And there was no record taken on how each vote was cast. If there was a bill that we really cared about we would have to recruit dozens of individuals to watch five or six legislators and record if they voted red or green. With this tactic we could come up with some semblance of a record.

But it was really in many ways a secret society. It was closed as much as they could close it.

So when the issue came before the Legislature to have a Constitutional Convention, or maybe a better way of amending the old Constitution, we lobbied heavily for its passage. After the Legislature agreed to a study, they concluded that over half of the old Constitution really didn’t work. It didn’t work for the Legislature, it didn’t work for the Executive, and certainly there was no transparency.

Various groups then supported the idea of calling a Constitutional Convention as the best way to solve these problems. After months of work, when the vote finally came up in November, we were ecstatic to realize that the vote passed. It passed easily. We really were going to rewrite Montana’s Constitution.

Once the Constitutional delegates were elected, and I was elected as one of the delegates, I was assigned to the Bill of Rights Committee. It was right where I wanted to be. I knew that through my political history in Montana that the Right to Know had always been important, especially since it wasn’t included in the old Constitution. 

So I introduced the part of the Bill of Rights that dealt with the Right to Know. I would like to read that to you. This is basically the original wording:

“No person shall be deprived of the right to examine documents, or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demands of individual privacy clearly exceeds the merit of public disclosure.”

That exception caused trouble. I had always thought that the strongest supporters of the Right to Know provision would be the press. Because it wasn’t just the League of Women Voters who were having trouble getting information throughout the years, the press did as well. State agencies, the Legislature, none of these groups had to give out information. They let out whatever information they wanted out.

However the press objected. They did not like the exception that individual privacy could overcome the demands of public disclosure. So we worked hard with the press and came to a pretty simple solution. That was the word ‘clearly.’ When individual privacy clearly demanded non-disclosure of information, then the press was satisfied.

From then on there wasn’t any problem getting the Right to Know provision included as a part of the Bill of Rights. It was pretty well accepted by everyone and during the campaign to ratify the Constitution it was never an issue. The corporations were of course out in force to defeat the Constitution. They had not participated much in the deliberations, and our deliberations were very much a participatory process. We had the public involved as much as we could. We had big hearings with people from all over the state coming in to testify about what they wanted to have in the Constitution. Every single suggestion was assigned to a committee and considered individually. Some of them didn’t get much consideration but they at least came up.

In the end the Constitution passed. It became law. And it became obvious that we now needed to know how to implement these new laws. Because although we had a new Constitution with many changes, the people didn’t recognize that and neither did people working in government. Take county commissioners for example. They used to operate with usually three commissioners like we have here in Gallatin County and they would come to the office most days and meet on the spur of the moment, either because a friend or colleague cajoled them or they had a letter asking the commissioners to do something, and they would call themselves into order and take an official action.

However they couldn’t do that anymore.

It took them a long time to recognize, and maybe a few court decisions, that they now had to announce meetings ahead of time, a few days at least. This announcement had to include the time, place, and an agenda. And only those items on the agenda could they take official action on. This secured the public’s right to know.

An issue that was more difficult was that Commissions now could not meet by themselves and discuss issues ahead of time. This meant that if they were going to go to Helena, they could not ride in the same car, because it would be hard to ride in the same car and not discuss the issues they had in front of them.

This type of situation happened in many different types of government. School boards have really had a hard time grasping what they could and could not do under the Right to Know provision in the Montana Constitution. Additionally the press frequently took action. They even challenged the Legislature, and won a Supreme Court case, that stated party caucuses during the Legislature had to be opened. They couldn’t close the caucuses any more. Everyone was somewhat surprised that the court ruled in that fashion. But they did. And all of these small procedural changes have made a difference over the years. I think everyone who works with public issues, runs for office, and is elected to office recognizes that the Right to Know has made a big difference.

All in all, I think our system has worked well.

However today we are faced with a number of relatively new issues so far as the Right to Know is concerned. One of them is the Patriot Act. While it does more to squelch the Right to Privacy, it also means that we voluntarily give up some of our freedoms associated with the Right to Know. Additionally there are issues of corporate disclosure of information that is valuable to the public, such as disclosure of possible pollutants related to community or environmental health.

With issues like these I think the people of Montana need to always remember that the Right to Know is not absolute. They have to look at what is happening to the provision, to resist the limitations that are being suggested by various groups in the name of opposing terrorism or securing trade secrets. In the years to come we really need to look seriously at the Right to Know and how we can keep that right.

 In order to have a society where citizens are able to make informed decisions with the information they need to know, they need to be sure they have a right to know.

Thank you.