'Capitol Talk': Daines VS Warren, DeVos Vote, Death Penalty In Montana

Sen. Daines shuts down Sen. Warren and votes to confirm Betsy DeVos. Will the special congressional election be a mail-only affair? A death penalty repeal bill narrowly fails at the Montana Legislature. Join MTPR's Sally Mauk and UM Political Science Professor Rob Saldin for analysis of these stories on "Capitol Talk," your weekly legislative analysis program.

Sally Mauk: Welcome to "Capitol Talk" our weekly legislative analysis program. I'm Sally Mauk and I'm joined this week by University of Montana Political Science Professor Rob Saldin. Our colleague Chuck Johnson will rejoin us next week.

Rob, Senator Steve Daines made national headlines and sparked protests at his offices in Montana this week when he told Senator Elizabeth Warren to take her seat during debate over the confirmation of Jeff Sessions as Attorney General. It was a moment of high drama, and it did not sit well with Senator Warren or many Montanans.

Rob Saldin: You know at stake here is what's called "rule 19" which governs debates on the floor of the Senate. And it says basically that you can't attack another Senator on a personal level. And I actually think the rule, on its own terms, the idea behind it is a good one for the Senate. It establishes an expectation of civil discourse and respect for people who see things differently, keeping the focus on issues rather than personal attacks, things like this. And it seems to me that now more than ever, we could use more of that, not less. But, in this incident, the Senate just seemed more to mirror our broader political culture rather than present a more refined version of it, which is what the founders originally intended the Senate to do. But on its own terms here, the real problem was the fact that Jeff Sessions was, at the same time, both a sitting Senator, and a nominee pending Senate confirmation. Warren's comments would've been a total non-issue in a normal confirmation debate in  which the nominee wasn't a Senator. But it's also the case that it's not totally unhinged to view her comments as a violation of Senate norms in the context of just everyday Senate business. And of course, as you say, Steve Daines got wrapped up in that this week.

SM: Here's the exchange where Senator Daines as the presiding chair of the Senate that day, interrupts Senator Warren. And if you listen very carefully you can hear Senator Daines being prompted what to say by a Senate staffer:

SM: Now Senator Daines Rob, has claimed that none of this was pre-planned, but that begs credulity.

RS: It does. I think in a way Daines may very well have been caught in the crossfire here between McConnell and Warren. Daines just happened to be presiding over the Senate at the time, at least this is very plausible. And by the way, presiding over the Senate is no great honor, it's basically viewed as grunt work that gets rotated around among the junior senators. I guess regardless of whether this was orchestrated ahead of time, we certainly shouldn't feel very sorry for Daines because following the incident he rushed to his twitter account to gloat about it, which seemed unfortunate and rather gratuitous. And once you do that, you kind of own it. And maybe he's okay with that. After all, Elizabeth Warren is arguable the closest thing to a party leader that the Democrats have in the post-Obama vacuum. And even if you had to pick right now, she'd might be the front-runner for the Democratic presidential campaign in 2020.

SM: Well he's also fundraising over this incident. He sent out a fundraising letter saying that, "he hopes his supporters continue to stand up to Elizabeth Warren, her special interest allies, and the mainstream media."

Now for Senator Daines, the media — like for President Trump — is the enemy.

RS: Right, and so whether this was something that Mitch McConnell and Daines planned ahead of time, or whether he just happened to be the one sitting in the chair when it happened, he's certainly looking to score some political points off of it. And I'm not sure it's going to work because there are a lot of bad optics on this. For one, this rule that Elizabeth Warren allegedly violated — it's been selectively enforced over time. In the past, it's operated much more as a norm, more of an issue of good manners rather than something you take a formal vote on which the Senate did this week. So it looks like McConnell at the very lease, and Daines by extension, were just kind of spoiling for a fight on this one, and then on top of that people understandably look at this and see it as something of an affront to free expression. On top of that, a lot of people have noted the gender dynamic. McConnell and Daines telling a female colleague to sit down and be quiet, it touches a nerve to say the least. And then finally I'd add that it's a bit hard to stomach having to watch Republicans get all pious and bent out of shape about decorum when most of them seem entirely unconcerned about the daily comments and tweets coming out of the White House.

SM: Well it's also sparked another boom in t-shirts with the "she persisted" comment from McConnell showing up.

RS: It seems to have sparked a bit of a backlash. I think what McConnell and Daines were hoping for was just a smooth and quick confirmation of Jeff Sessions, and of course Sessions did get confirmed, but the really kind of sparked — needlessly I would say — a backlash and Elizabeth Warren has been effective at capitalizing on it and so there we are.

SM: There were a lot of protester who went to Daines' offices in Kalispell, Missoula, and I think Billings. And also the editor of the Billings Gazette wrote a scathing editorial criticizing Daines and saying, "for Daines to play any part of this scheme is shameful, un-American, and needs to be condemned."

RS: I think on the merits there, some of the arguments weren't entirely compelling, and part of it goes back to what were were talking about at the very beginning in terms of the norms of the Senate and how it's supposed to, by design, be very different than say the House of Representatives. But nonetheless, I think what is remarkable is that this was in the Billings Gazette, which is considered a conservative newspaper by Montana standards, and it certainly a paper that Daines would presumably care much more about seeing an editorial like that than say if it appeared in the Missoulian.

SM: Well lost in the kerfuffle over Elizabeth Warren, Senator Daines also heard from a lot of constituents upset at his vote for Education Secretary Betsy DeVos, who has donated money to his campaign in the past. But with or without a campaign donation, Rob, it seems to me Senator Daines would likely support DeVos regardless. They have similar views of education. For example, they both support more charter schools, more private schools, etc.

RS: I think that's exactly right. We can sometimes get overly conspiratorial about trying to connect the dots with money on these things. The much more straightforward, obvious, and I think more accurate assessment is just that Daines, like almost all of the Republicans are at the very least sympathetic to DeVos' approach to handling public schools and seeking to increase funding towards charter schools, and are open to the idea of private schools.

SM: Hard to imagine he would not ever have voted for her.

RS: Right, yeah. Take the money out of the equation, he's still going to vote for her.

SM: In other Montana congressional news, the U.S. Senate is expect to confirm Congressman Ryan Zinke as soon secretary of the Interior next week. And that will prompt Gov. Bullock to call a special election to replace him. And local election officials want that special election to be by mail ballot only for two reasons: it's a lot cheaper and a lot easier than staffing poling places; and they argue it would enhance voter turnout. But Republican leaders are pushing against that.

RS: They say that they're concerned about fraud; the idea that someone would steal ballots if they were just sent out in the mail, or maybe just fill out somebody else's and send multiple ballots back. And it's true enough that there have been isolated cases of this kind of thing apparently happening. But there hasn't been any substantiated instance of any kind of systematic and widespread voter fraud, which is what the Republicans seem to be concerned about. Democrats say that look, given this absence of any systematic, widespread fraud, we should err on the side of ensuring that as many people as possible have the opportunity to vote. And as you mentioned plus, it's a lot cheaper than staging a normal election.

SM: Like a half million dollars cheaper statewide.

Well finally Rob, Missoula Republican Adam Hertz has introduced a bill in the state legislature to abolish Montana's death penalty. And such a bill has been introduced in every session in recent memory and never passed, although it's come close.

RS: As you say — and I think this would come as a surprise to a lot of people — the death penalty in Montana has been hanging on by a thread. You might naturally assume that in a state with large Republican majorities in the Legislature, and being situated in the mountain west which is something of a death-penalty-friendly region, that support for it would be solid. My hunch is that if this appeared on the ballot and was put to the voters that the death penalty would have wide support. But in the Legislature it has just been hanging on. For many years Dave Wanzenried, a Missoula Democrat had been the figure most associated with the push for repeal. And there were several legislative sessions in which his bills passed the Senate. Then two years ago, Wanzenried retired, but the Senate again voted to repeal the death penalty, and Representative Doc Moore, a Missoula Republican carried the repeal effort in the House, and that fell just one vote short of passing. This time, both of those guys are gone, but another Missoulian, Republican Adam Hertz this time has picked up the torch. And in a hearing on his bill this week, no one testified against it.

SM: Representative Hertz  made both the moral and the economic arguments in that hearing:

SM: And he's right that sentencing someone to life in prison is cheaper than putting someone on death row.

RS: Right, and that's one of the arguments against it. One of the interesting things about the death penalty legislation is that unlike a lot of issues where you more or less have a clear argument about why we should do this or that, when it comes to the death penalty, the arguments are all over the map. Some people approach it from kind of a social justice angle and a concern for the so-called root causes of crime. Meanwhile you have budget hawks like Hertz who point to the cost, and say look, it costs a lot more to execute someone once you factor in all the legal appeals and whatnot, then it is to have someone in prison for a life without parole. And then, you have some social and religious conservatives who draw a parallel between the death penalty and abortion, and who understand their commitment to the pro-life cause to be not just limited to the unborn, but to also include people who've committed even the worse types of crimes. So there are lots of different reasons.

SM: Representative Lola Sheldon-Galloway whose sister in law was murdered, for her the economic argument isn't strong enough:

SM: Basically she's saying you kill someone, you pay with your own death.

RS: Right, I think that's an argument that resonates with a lot of people. And to try to view this through an economic, budgetary lens totally misses the point, is her basic argument. It's not a matter of saving a few bucks when you have someone commit the worst type of crime, this is a reasonable punishment.

SM: Well Rob, it seems Montana may keep the death penalty as the House Judiciary Committee — by one vote, 10 to 9 — has voted to table Representative Hertz's bill to abolish it.

Rob, thanks, and well talk to you next week.

"Capitol Talk" is MTPR's weekly legislative news and analysis program. MTPR Senior News Analyst Sally Mauk is joined by veteran Capitol Reporter Chuck Johnson of the Bozeman Daily Chronicle and UM Political Science Professor Rob Saldin.

Tune in to "Capitol Talk" online, or on your radio at 6:35 p.m every Friday during the session, and again on Sunday at 11:00 a.m.