AG candidates have sharply different ideas of what the job should be
Helena Independent Record
September 12, 2020
Beyond the contrast in policy and plans, the candidates to be Montana's next attorney general offer broadly divergent views on the job description for the position they're running to fill this November.
The contest is between Democrat Raph Graybill and Republican Austin Knudsen.
For Graybill, the attorney general should be a structural safeguard against power and an advocate who uses the state’s Constitution to make real changes in Montanans’ lives.
“From the failure of the federal government to the cost of prescription drugs, attorneys general can do something about it. ... We have this really progressive, really interesting state Constitution that protects our rights in ways that are the envy of all the other states,” Graybill said in a recent interview. “Those are all just words on paper unless you go out and pick fights. We have to use the power of the courts to vindicate those rights."
Knudsen embraces the position's moniker as the state's "top cop."
“The focus of the attorney general’s office needs to be enforcing the law,” Knudsen said in late July. To him, much of that enforcement should be related to the abuse of methamphetamine.
“Violent crime is up, and it’s up pretty dramatically in Montana in the last five years. Those involved in law enforcement will all tell you the same thing — it’s a result of illegal drugs. Meth use leads to meth trafficking, sexual assaults, rapes, murders, human trafficking, prostitution," Knudsen said. "That’s what’s driving up the violent crime trend in Montana.”
Graybill is Democratic Gov. Steve Bullock’s chief legal counsel. Prior to that, he was a lawyer at a firm in Seattle, which came after clerking for the 9th U.S. Circuit Court of Appeals in Billings. He went to college at Columbia University, where he was an auxiliary police officer, followed by Yale Law School and the University of Oxford. A fifth-generation Montanan, Graybill grew up in Great Falls.
As the governor's top attorney, Graybill has fought high-profile legal challenges for the administration. He's notched wins defending a conservation easement program and on the disclosure of dark money in politics. He wrote the state's net neutrality executive order and another banning foreign money in state elections. He also unsuccessfully argued in front of the U.S Supreme Court for a rule the state Department of Revenue wrote that would have stopped scholarships from tax credits going to religious schools.
“My experience and my background as an attorney is using the power of the law and the protections we are supposed to have to make real changes in people’s lives,” Graybill said. “I know how to build complicated cases and go to court and win.”
Knudsen is also a fifth-generation Montanan who grew up on his family’s farm and ranch outside Culbertson. He served four terms in the state Legislature, including two as the Speaker of the House. First elected to that post at 33, he's one of the youngest to ever hold it. Before that he worked in private practice, first at a firm in Plentywood and then running his own in Culbertson.
After leaving the Legislature, Knudsen was elected to be Roosevelt County Attorney in 2018. He is a graduate of Montana State University and received a law degree from the University of Montana.
“I’ve had my own small business, I’ve paid self-employment tax,” Knudsen said. “I’ve represented farmers, ranchers, small business, neighbors, just about any kind of legal issue you that you can think of, I’ve probably dealt with outside of a few specialized areas.”
When Knudsen entered the race, he said it was in part because of what he saw as the failings of termed-out Republican Attorney General Tim Fox to do enough to repeal the federal Affordable Care Act. Knudsen has long opposed the law and at the state level voted against Medicaid expansion, which is allowed for under the ACA and passed the state Legislature in 2015.
The U.S Supreme Court will hear a case in November, after the election, in which it could strike down the entire ACA. Before the court set its schedule, Knudsen said he didn't expect Montana's next attorney general to have much of a say in that case, predicting it would be argued before January. Graybill said if given the opportunity, he would make Montana's position in the proceedings much more assertive.
The cost of the U.S. Supreme Court ending the ACA is too high for Montana, Graybill said, pointing to the 7,500 jobs Medicaid expansion created here and the corresponding $600 million boost to the state economy. That's not to mention the 85,000 Montanans who have gained health insurance.
“There’s no more stark of an example,” Graybill said, between the candidates than on health care.
An aggressive attorney general who engages in lawsuits to advocate for Montanans when it comes to issues like prescription drug price fixing is the “difference between getting our money back and continuing to get ripped off," Graybill said, pointing to multi-state litigation that Montana could join or lead over the pricing of generic drugs.
Graybill would take the same approach to protect Montana’s existing campaign finance laws as well as look for cases that tee up a greater discussion at the federal level.
“There is a coming reckoning in this country that will be fought out through the courts on what is the role of money in politics,” Graybill said. “Montana can provide real national leadership on the issue of how free speech relates to people conducting free elections.”
While Knudsen wouldn't focus on engaging the state in litigation on health care or campaign finance, he does see an opportunity to take a leading role in lawsuits related to the U.S. border with Mexico.
“I think that is such a huge issue with our drug and violent crime problem in Montana, and I think there’s a clear nexus for Montana to get involved in that,” Knudsen said. “It’s not hyperbole when I say the drug cartels are truly fueling the violent crime increase in Montana.”
Another place where Knudsen does see Montana engaging in some sort of federal legal challenge is around the Second Amendment.
“Any attempt from a federal level to restrict a Montanans’ ability to keep and bear arms, I’m going to take that very seriously,” Knudsen said. “I’ll be one of the first ones to line up and bring suit.”
Fitting with his view of the office, Knudsen wants to focus less on waging broad, sweeping legal battles and more on what he said he's observed since becoming a county attorney in 2018 — a lack of funding and resources for prosecution and law enforcement in communities around the state.
“I want to work with the Legislature, and I want to get more funding out to county attorneys,” Knudsen said. “That’s No. 1.”
That could mean adding deputy county attorneys to keep up with increased prosecution or helping sheriffs afford a drug dog, what Knudsen said is one of the single best tools for drug interdiction.
Knudsen envisions a decentralized Department of Justice, moving away from what he calls a “hulking bureaucracy” that’s not well-equipped to be a good partner with local communities. Even before the novel coronavirus pandemic created what is expected to be an exceptionally challenging budget for the 2021 Legislature to manage, Knudsen said he had been discussing reductions to an agency he said has become bloated.
“We’ve had some of the conversations around House Bill 2 (the state budget) and reducing the size of the DOJ where we can do that, where we can shift some money to local law enforcement, but candidly it’s hard to have those specific conversations when we don’t know what the makeup of the Legislature’s going to be,” Knudsen said. “ … I’m concerned about how big the DOJ has gotten in the last eight years. There should be some reduction there.”
Knudsen also raised concerns about some of the restrictions in place to slow the spread of the coronavirus.
“I think there are a lot of county and local health boards that are dancing dang close to the unconstitutional precipice with some of this stuff,” Knudsen said. “I’ve seen and heard of local health officials trying to mandate people, telling them they have to quarantine, and in my opinion we don’t have that authority. Certainly an un-elected public health official does not have that authority.”
The powers of local health boards in Montana Code Annotated include appointing health officers and ameliorating public health conditions through measures such as testing, isolation and quarantine (MCA 50-2-116).
While directives from local governments or the governor have enforceable remedies, Knudsen said those same measures are not available directly to the health department. Rather, health officials should go through law enforcement and due process should apply, he said.
“We’ve got some local health officials that don’t understand the legalities. I think their heart is in the right place and they’re probably doing what they think is the right thing to protect the public, but there’s a delicate balance there between protecting public safety and ensuring people’s civil liberties are not being infringed,” Knudsen said. “This is one we have to keep a very close eye on during this pandemic.”
Graybill, who has drafted many of the governor's directives, pushed back on Knudsen's read of the law.
“It’s disappointing to see some county attorneys, including Austin Knudsen, repeating legal theories that belong on Facebook and not in our courts,” Graybill said. “It puts everyone at risk.”
Following the fatal shootings of Black men and women by law enforcement officers, this summer has been one of demands for a re-evaluation of the role law enforcement plays in communities across the country, including Montana. That has also spurred counter movements, also in Montana.
While not under the purview of the state attorney general, the level of funding for local law enforcement has become a part of the attorney general race.
“When we’re talking about some of the major municipalities in the state wanting to get rid of school resource officers and divert funding away from law enforcement and toward more social programs or counseling, frankly that’s just pie-in-the-sky idealism,” Knudsen said. “That’s not grounded in reality.”
Having worked closely with law enforcement in his time as county attorney, Knudsen said he’s stunned and saddened to see Montana communities debating shifting funding from law enforcement and to other programs.
“This is driven by blind idealism and driven by people who don’t know what they’re talking about. They’re getting caught up in a movement that has nothing to do with Montana. This is not a Montana issue and to attempt to bring this into the state of Montana in an attempt to score political points or try to move the political needle one way or the other by an uninformed city council, I just think this is incredibly dangerous.”
Graybill said while Republicans have tried to cast Democrats as universal backers of shifting funds away from policing, he does not fall into that category.
“I do not support ‘defund the police,’” Graybill said, pointing to his time as an auxiliary officer. “I am ready to have a serious conversation about mental health in Montana. I’m ready to have a serious conversation about addiction and substance abuse and how we can relieve first responders of the burdens they face now and how we can be smart about law enforcement.
"Of course you have to be tough on traffickers, of course you have to be tough on violent crime. But to say you must be for abolishing the police or locking everybody up in sight, we are better than that. We are smarter than that. We have more experience than that. And that’s fundamentally the wrong way to approach those kinds of questions in the AG job.”