Each member of the legislature shall receive compensation for his services and allowances provided by law. No legislature may fix its own compensation.

History

Sources

1884 Proposed Montana Constitution

"Each member of the first Legislative Assembly, as a compensation for his services, shall receive five dollars for each day’s attendance, and twenty cents for each mile necessarily traveled in going to the seat of government from his residence and in returning from the seat of government to his residence by the usually traveled route, and shall receive no other compensation, perquisite, or allowance whatsoever. No session of the Legislative Assembly after the first, which may be sixty days, shall exceed forty days. After the first session the compensation of the members of the Legislative Assembly shall be as provided by law: Provided, That no Legislative Assembly shall fix its own compensation." Mont. Const. of 1884, art. IV, § 5 available at http://courts.mt.gov/portals/189/library/docs/1884const.pdf

1889 Montana Constitution

"Each member of the first Legislative Assembly, as a compensation for his services shall receive six dollars for each day’s attendance, and twenty cents for each mile necessarily traveled in going to and returning from the seat of government to his residence by the usually traveled route, and shall receive no other compensation, perquisite or allowance whatsoever. No session of the Legislative Assembly, after the first, which may be ninety days, shall exceed sixty days. After the first session, the compensation of the members of the Legislative Assembly shall be as provided by law; Provided, That no Legislative Assembly shall fix its own compensation." Mont. Const. of 1889, art. V, § 5 available at http://courts.mt.gov/portals/189/library/docs/1889cons.pdf

1972 Montana Constitution

"Each member of the legislature shall receive compensation for his services and allowances provided by law. No legislature may fix its own compensation." Mont. Const. of 1972, art. V, § 5 available at http://leg.mt.gov/bills/mca/title_0000/article_0050/part_0010/section_0050/0000-0050-0010-0050.html

Constitutional Convention Occasional Papers - Legislative Council Report on the Montana Constitution

The 1971 Legislative Assembly created the Constitutional Convention Commission and directed it to assemble and prepare essential information for the 1972 Convention. The Constitutional Convention Commission prepared a series of research reports under the general title of Constitutional Convention Studies. One of these was the 1968 Montana Legislative Council report on the Montana Constitution. Montana Constitutional Convention Occasional Paper No. 6: Legislative Council Report on the Montana Constitution, PREFACE (1968).

In this report, the Council declined to comment on the adequacy of Section 5, but they did propose an amendment. Id. at 20. The Council's comment on Section 5 from the 1889 Constitution was as follows:

Two of the six constitutions used for comparative purposes contain provisions on compensation similar to the first and third sentences of this section; three provide for annual salaries; one provides only that the compensation and expense allowances shall be set by law. All six constitutions used for comparative purposes provide for annual sessions, and five do not impose any limit on the length of regular sessions (Alaska imposes a thirty day limit on special sessions). One constitution (Hawaii) sets the session limits at sixty days for regular sessions in odd numbered years and thirty days for budget sessions in even numbered years. A proposed amendment which will be voted upon in 1968 would amend this section to read as follows:

"Section 5. No session of the legislative assembly shall exceed eighty (80) days. The compensation of the members of the legislative assembly shall be as provided by law; however, no legislative assembly shall fix its own compensation. Per diem and expense payments to members for days in session shall not be made for more than eighty (80) days."

Because of the proposed constitutional amendment, the Council declines to comment on the adequacy of this section. Specification of a certain number of legislative days, however, would allow the legislature wide discretion in determining the length of sessions. Id. at 22.

Constitutional Convention Studies - New State Constitutions

In addition to producing research reports, the Constitutional Convention Commission published a collection of recent state constitutions so they would be available to all delegates for review at the 1972 Convention. Montana Constitutional Convention Studies No. 6: New State Constitutions, iii-iv (1968). This collection included six recent constitutions adopted by the people: Alaska, Connecticut, Hawaii, Illinois, Michigan, and Virginia. It also included two recent constitutions proposed to the people but not adopted: Idaho and Maryland. The sections similar to Montana's Section 5 are as follows:

Alaska

Legislators shall receive annual salaries. They may receive a per diem allowance for expenses while in session and are entitled to travel expenses going to and from sessions. Id. at 6.

Connecticut

The salary of the members of the general assembly and the transportation expenses of its members in the performance of their legislative duties shall be determined by law. Id. at 36.

Hawaii

The members of the legislature shall receive allowances reasonably related to expenses and a salary, as prescribed by law. Any change in salary shall not apply to the legislature that enacted the same.

There shall be a commission on legislative salary, which shall be appointed by the governor on or before June 1, 1971, and every four years after the first commission is appointed. Within sixty days after its appointment, the commission shall submit to the legislature recommendations for a salary plan for members of the legislature, and then dissolve. Id. at 49.

Illinois

A member shall receive a salary and allowances as provided by law, but changes in the salary of a member shall not take effect during the term for which he has been elected. Id. at 84.

Michigan

The compensation and expense allowances of the members of the legislature shall be determined by law. Changes in compensation or expense allowances shall become effective only when legislators commence their terms of office after a general election. Id. at 125.

Virginia

The members of the General Assembly shall receive such salary and allowances as may be prescribed by law, but no increase in salary shall take effect for a given member until after the end of the term for which he was elected. No member during the term for which he shall have been elected shall be elected by the General Assembly to any civil office of profit in the Commonwealth. Id. at 180.

Idaho

Legislators shall receive the salary and allowances prescribed by law, except that any change in the amounts thereof shall not apply to the legislature that enacted it. Id. at 208.

Maryland

A member of the General Assembly shall receive the salary and allowances prescribed by law. A salary increase enacted during one term of office shall not become effective before the next term. No senator or delegate shall be paid daily living expenses during regular sessions of the General Assembly. Id. at 229.

Drafting

The current Section 5 is derived from and similar to Article V, section 5, paragraph 3 of the 1889 Montana Constitution. Larry M. Elison & Fritz Snyder, The Montana State Constitution: A Reference Guide 110 (2001). The changes made in 1972 were mostly grammatical, although the 1972 provision includes "allowances" in addition to "compensation" as provided by law. Id.

The debates that took place in both the 1889 and 1972 conventions show the importance of the policy determination to compensate the Legislature rather than have an unpaid, voluntary Legislature. Id. The delegates appreciated the role of the Legislature, and wanted to allow Montanans from all walks of life to serve. By leaving the amount of compensation and allowances to the discretion of the Legislature, increases and decreases may occur as dictated by changing economic conditions and political determinations. Id. All changes in compensation must be prospective, commencing after the session during which the change was made, illustrating the delegates' understanding of the inherent distrust of politicians and the sense that a constitution should guard against the greed of those in power. Id.

1889 Convention

At the 1889 Convention, the Standing Committee proposed the same language that was ultimately adopted. However, there was some debate when it went to the Committee of the Whole. The debate, in part, was as follows:

MR. COLLINS, OF CASCADE: I move to strike out the words "six dollars" and insert "ten dollars". Proceedings and Debates of the Constitutional Convention, Held in the City of Helena, Montana July 4th, 1889, August 17th, 1889, pg. 601, State Publishing Company, Helena, Montana, 1921.

MR. ROBINSON, OF DEER LODGE: I desire to stoke the word "six" and insert "five". I desire to strike out the word "twenty" and insert "ten", and add "that where passes on railroads have been received by members that those members shall have no mileage whatever. Before they get their per diem they shall make affidavit." Id.

MR. BURLEIGH, OF CUSTER: I would like to ask the gentleman if he will insert one other provision there which will commend it to my consideration, and that is that he shall include in that affidavit the fact that he has not also drank any free whiskey on the trip. Id.

MR. BICKFORD, OF MISSOULA: I would ask the gentleman to insert that he shall also swear that the conductor did not fail to collect his fare. Id.

MR. COLLINS, OF CASCADE: I am in favor of increasing the per diem of the members of the Legislature over the amount reported by the committee. I believe that every gentleman on this floor will admit that the members of the Legislature have not been aid as they should be for their services. We are getting out of this idea that members of the Legislature should serve for nothing. That branch of the law-making power should be better paid, in fact, than the Executive or Judiciary for the services rendered, and if we pay them better, it seems to me you will have purer and better laws. Id.

MR. GODDARD, OF YELLOWSTONE: If the compensation of the members of the Legislature is to be fixed according to the value of the services rendered, I believe that the last two or three Legislatures that have convened should not have had anything. I think that six dollars will pay the legitimate expenses of any member of the Legislature. If he wants to indulge in the luxuries of life outside of that, let him pay it out of his own pocket. Id. at 602.

MR. ROBINSON, OF DEER LODGE: It is not the amount of money that induces the best class of men to come. That is not the consideration at all. Id.

MR. DURFEE, OF DEER LODGE: I hope that motion will not prevail. I have made a little computation here of what the cost of our State government will be. Where are we going to get the money from to pay for the expenses of our government? Id. at 603.

MR. CALLAWAY, OF MADISON: The gentlemen have left one important item of taxable property out of their calculations. When Montana becomes a State we will have 820 miles of railroad that will be taxable that is not taxed now. Id.

When all of these amendments were put to a vote, they were all declared lost.

1972 Convention

Delegate Proposal No. 140

On February 4, 1972, the Legislative Committee proposed a new article. Within this article, section 4 addressed legislative compensation: "(1) Each member of the legislature shall receive an annual salary and such allowances as may be prescribed by law; provided that no legislative assembly shall fix its own compensation. (2) A salary commission shall be created by the legislature, to establish legislators' compensation." Montana Constitutional Convention 1971-1972, Enabling Act, Convention Rules, Delegate Information, Delegate Proposals, Committee Proposals, Vol. I, pgs. 274-75, Published by the Montana Legislature in cooperation with the Montana Legislative Council and the Constitutional Convention Editing and Publishing Committee, Helena, Montana, 1979.

This proposal was ultimately adopted in part. Id. at 417.

Delegate Proposal No. 141

Also on February 4, 1972, delegates Grace Bates, William. H. Artz, Chet Blaylock, and Lloyd Barnard proposed amending article V, § 5 to state: "(1) Each member of the legislature shall receive an annual salary and expense allowance as provided by law. No legislature may fix its own compensation. (2) The legislative salary shall be at least two thousand five hundred dollars ($2,500) a biennium and the expense allowance shall be at least twenty dollars ($20) a day. The salary and expense figures may be adjusted by a salary commission established by the legislature." Id. at 280-81.

This proposal was ultimately rejected. Id. at 417.

Majority Proposal

The majority proposal for section 5, as set forth by the Legislative Committee was nearly identical to Proposal No. 140 and stated: "(1) Each member of the legislature shall receive an annual salary and such allowances as may be prescribed by law; provided that no legislature shall fix its own compensation. (2) A salary commission shall be created by the legislature to recommend legislative compensation." Id. at 395.

The comment on this section of the majority bicameral proposal stated, "The language and explanation of this section are identical to those of section five of the unicameral article." Id. at 402.

Minority Proposal

Magnus Aasheim, Miles Romney, Torrey Johnson, and Richard Nutting set forth Minority Proposal No. 4 which sought to amend the majority bicameral proposal as follows: "Each member of the legislature shall receive compensation for his services and allowances as may be prescribed by law. No legislature may fix its own compensation."

The comment explaining this proposal stated the following: "The complications of trying to specify a particular method of payment that would meet conditions for years to come lead us to believe that the methods must be left up to legislative decision. This provision does not tie the legislature to any particular method of determining amounts or methods of setting pay but will allow them to adjust as they deem necessary. A complication arises in PERS if the annual salary is less than $7200. A daily wage might satisfy those legislators desiring to come under PERS." Id. at 413.

Debate on Proposals, In Part:

DELEGATE SKARI: The question here is how are we going to pay our legislators. Right now we are simply considering subsection 1, annual salary. I am going to read a quote from the Sometime Governments by John Burns: “The size of a legislator’s salary is generally demeaning enough. It should at least be based upon an annual rate.” We do not mention a minimum salary in here. We do not set any salary because of the danger of a salary floor being placed in effect. The last salary remained in there for 50 years and we do not mention it for that purpose. We feel that compensation should be relevant to the total demands of a legislator’s time. I think a good point that can be made also, that the salary is also relevant to the dignity of the office. Another point is that an annual salary will help to discourage a legislative body from procrastinating. Thirty-seven states now use an annual salary. I think there is a growing realization that the complex problems of state governments in this age demand considerable time from a legislator and it is on a year around basis, whether they are in session or not. Verbatim Transcript, 573 (February 19, 1972).

DELEGATE NUTTING: Mr. Chairman, as a substitute motion, I move that minority report on page 56 be accepted. The minority report merely replaces Section 1 and 2, and we do not tie in that there will be annual salaries; whether there are annual salaries or not will be left to the opinion of the legislators. It does not require a wage commission. However, under the minority report a wage commission could be established. In other words, we feel that we are opening up the situation and leaving it to legislative decision as to how the salaries should be paid, and whether they should be annual, whether they should be by the day. And we feel this is, for the long pull, this would be a much better article than to tie any particular things in such as annual salaries or requiring a wage commission. Id.

DELEGATE ARBANAS: Would Delegate Nutting yield to a question? Verbatim Transcript, 574 (February 19, 1972).

DELEGATE NUTTING: Yes. Id.

DELEGATE ARBANAS: I have been given to understand that one of the reasons our legislators’ salaries are so low and why they’re always behind things is the fact that they have a rather public embarrassment of voting a raise and their fear of the voters in this matter. Is that a true fact or not? Id.

DELEGATE NUTTING: I think when you elect legislators you should elect legislators with integrity. If they feel that they are right, they have the right to vote an increase in their salaries. If they feel that a commission is the proper way to go to establish salaries, they should have that right to establish a commission. Id.

DELEGATE ARBANAS: I’d like to speak against the motion. It seems to me that it leaves them in that limbo they are in now and that the original motion provides a guarantee of improvement. Id.

DELEGATE HARPER: Mr. Chairman, I think if you’ll note what subsection 2 here says – it says a salary commission shall be created by the Legislature to recommend legislative compensation. The recommendation comes back to the Legislature. The Legislature establishes legislative compensation. The commission is in no way granted the full responsibility and privilege of setting exact figures here. It’s to be an impartial citizens’ help to the Legislature so that when this commission of citizens comes out and says, this is what we think our legislators ought to be getting, the Legislature, in enacting some more sensible salary scale, can say this was recommended by people who took a look at the situation from an objective, impartial view. An annual salary would free them from the stigma of having to extend legislative sessions day by day in order to increase their own compensation. I am thoroughly in accord with the majority committee report. Id.

DELEGATE KAMHOOT: Mr. Chairman, I rise in support of the substitute motion. I fear that this could lead to a professional Legislature that would be hired yearly from now on. I can remember when these legislators got $10 a day up here. Granted, that probably wasn’t enough, but I think the quality of the Legislature that we had in Montana at that time was every bit as good as the quality has been when they were receiving a total of $45 a day. I’m not questioning whether the men are worth that, or whether worth more than that, or less. I think this is a duty and an obligation to the people of Montana, if they’re interested in their state, and I certainly think this should be left as it is to the Legislature and I support the minority proposal. Verbatim Transcript, 575 (February 19, 1972).

Chairman Graybill then conducted a vote: The vote is closed. 47 having voted Aye and 40 having voted No, the substitute motion of Mr. Nutting’s prevails.

DELEGATE BLAYLOCK: Mr. Chairman, I move to amend the adopted minority report to add what was subsection 2 of the majority report: “A salary commission shall be created by the legislature to recommend legislative compensation.” Verbatim Transcript, 576 (February 19, 1972).

DELEGATE BLAYLOCK: I was down in the Governor’s conference room when Governor Anderson spoke to the Executive Committee and one of the statements that he made was, what was wrong with the Legislature at the present time is that the members do have some timidity in increasing their own salaries. I think this type of arrangement has worked very well for Congress, where a salary commission recommends a salary, and then if it is not turned down by Congress, it becomes law, and I think that in order to get good legislators for our government here in Montana, that this would be a good idea. Id.

DELEGATE ARBANAS: I’d like to know the reason why you didn’t go the stronger way, rather than just plain recommend, which I fear still puts the Legislature maybe in an embarrassing position. Verbatim Transcript, 576-77 (February 19, 1972).

DELEGATE SKARI: We felt that a commission of responsible citizens that was created, would study the problem, do this research, take into consideration many factors, such as the amount of work and all, the type of people we wanted to attract to the Legislature and, in other words, a very broad representation of people, not limited to those of private means. We felt that they would make a fair appraisal of what would be needed and that the Legislature, in all likelihood then, would go by their recommendation, but we did leave the final appropriation of that money up to the legislature. Verbatim Transcript, 577 (February 19, 1972).

DELEGATE HARPER: We said, for example, we wanted everyone to run from single member districts because we want, for example, the people of a poor economic area to have a chance to run. And then in line with that, the committee thought, well, let’s make it possible to have a citizens’ Legislature instead of a Legislature which can be composed only of those of independent means. And now we seem to be tending toward keeping the very people out that we wanted in the first place to vote in. At least let’s give them a commission which we have mandated them to set up to recommend salaries to them, so that this whole area of adequate compensation can be dealt with in a way that will allow us to have a citizens’ Legislature. Id.

After all of this discussion on the Salary Commission, the delegates eventually moved it from Legislative to General Provisions because a Salary Commission relates to more than just the Legislature. The Salary Commission would be assessing Executive and Judiciary salaries as well.

Ratification

1972 Voter Information Pamphlet

After the delegates signed the proposed constitution on March 22, 1972, it was to be submitted to the voters on June 6, 1972. As required by Chapter 296, 1971 Laws of Montana, the Legislature paid for a guide to explain the changes to the voters.

The description in the Voter Information Pamphlet regarding Article V, Section 5 simply stated: "No change except in grammar." Proposed 1972 Constitution for the State of Montana Official Text With Explanation, available at https://www.umt.edu/law/library/files/1972voterspamphlet

Interpretation

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Commentary

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