HELENA, MT—On a rainy morning in March, Derek Skees sat in a Helena hotel explaining his beef with the federal government. It was as big as all Montana.
Skees, a building contractor from the Flathead Valley, surfed the Tea Party wave last November to a seat in Montana’s House of Representatives. He thinks Washington has stolen powers reserved for the states, strangling individual rights in the process. Polite and affable, he wore a nameplate in the shape of his state, a teapot lapel pin and the inscrutable smile of a guy sitting on a secret. He peppers his arguments with allusions to the Magna Carta, the Federalist Papers, Plato and de Toqueville, and at one point whipped a copy of the Constitution from his jacket pocket to bolster a point. “Jefferson gives me goose bumps,” he says. “Most of my heroes have been dead for 200 years.”
In the age of Obama, it’s not unusual to hear Tea Partyers pine for a sepia-toned past. What’s unusual is the solution Skees proposes. The freshman legislator, 42, is at the forefront of a nascent nullification movement, which argues states can fight government oppression by refusing to follow unconstitutional federal laws.
With Congress mired in the slog of divided government, the hottest battles in the war against Washington are taking place in the states, and the weapon of choice is a dusty legal theory with a checkered past. Twelve states have introduced bills to nullify President Obama’s health care law. Others, like Kentucky and Texas, tried to declare themselves sanctuaries from Environmental Protection Agency regulations. The tiny town of Sedgwick, Maine–population 1,000—passed an ordinance nullifying any law that interferes with local food production and processing. In May, the Texas House of Representatives voted to ban TSA pat-downs, spurring the Department of Justice to warn the state’s Senators that passing the bill could halt all air travel to Texas.
But it’s Montana that has emerged as the epicenter of the nullification movement and the purest laboratory for the Tea Party’s model of governance. In the statehouse session that wrapped up on April 28, a lopsided GOP majority launched an all-out blitz of conservative legislation, including a “birther” bill, a declaration emphasizing global warming’s unsung benefits and a measure that would have legalized the hunting of big game with spears. Tea Party Republicans introduced nearly a dozen bills to nullify laws governing everything from health care and food safety to animal protections and gun restrictions. One, known as a “Sheriff’s First” law, would have forced federal officials to get the local constable’s permission before making an arrest. Another, authored by Skees, would have established an 11- person commission to examine all federal statutes and eliminate those deemed unconstitutional.
To Democrats, the mushrooming movement highlights the GOP’s march toward the fringe. But to many Montanans, nullification is a way to assert state sovereignty and safeguard individual liberties. In one recent poll of 625 Big Sky voters, 43% of respondents said states should have the right to “nullify and ignore” federal laws they don’t support, a shade above the 42% who disagreed. “Nullification saves the union,” Skees says. “Every Republic, from Rome on, ends in tyranny. That’s where we’re headed, unless guys like us can change it.”
Montana’s copper-domed statehouse sits in a residential neighborhood in the shadow of the Rocky Mountain foothills. Visitors are asked not to tote weapons, but nobody checks; you can stroll into the galleries, through a gleaming rotunda festooned with fresh flowers, without earning so much as a quizzical glance. Montana is one of four states whose legislatures assemble every other year, and lawmakers earn $82 per day (plus per diem) during the 90-day session. “We are the perfect citizen-legislators, and we’re all going broke sitting here,” says Skees. On Day 52, in early March, touring high-schoolers outnumbered the adults. An anti-tobacco group commandeered the main hall, passing out sandwiches and lining the corridors with empty shoes signifying lives lost to cancer. One of the day’s marquee debates, on a stream-access bill, concerned the definition of a ditch.
That afternoon, the House Appropriations Committee held a hearing on a bill to nullify the federal Endangered Species Act. The goal was to give Montanans the ability to shoot wolves, which proliferated under federal protection and which pose a threat to agriculture and livestock. The concept has appeal in both parties, and later in the spring, with a budget impasse threatening to shut down the federal government, Montana’s Democratic Senator Jon Tester helped tack a rider onto the pact that stripped the gray wolf’s protected status. But at the time of the hearing, the measure carried a steep price tag: it could have cost Montana $500 million per year in federal funds for staples like schools and highways.
This didn’t dissuade Krayton Kerns, the bill’s sponsor. A veterinarian who authored a book called Ramblings of a Conservative Cow Doctor and rails against the “hoax” of man-made global warming, Kerns argues Montana must wean itself off the federal spigot. In his view, Washington’s busted balance sheet renders its debt worthless. “The whole system is going to collapse. We are going to go the way of Greece,” says Kerns, who has a cheerful manner for a guy predicting doom. “We might as well be arguing about pixie dust.”
Nullification has natural appeal in Montana, a sparse, spacious state that nurtures its frontier legacy. “There’s a competition among Tea Party Republicans in state legislatures, especially in the West, to one-up each other on who’s willing to tell the big, bad cultural bogeyman–the federal government–to get out of your state,” says David Sirota, a liberal journalist and radio host who served as an aide to Montana Governor Brian Schweitzer. Many also view the seizure of vast swathes of land for national parks and monuments as an assault on their livelihood. “We see our fiscal environment as being really under attack,” says James Knox, a GOP freshman representative who runs a computer-repair company in Billings. “Our wealth comes from the ground—from ranching, farming, oil, coal. There are a lot of barriers put in the way of that wealth.” Nullification is a way to “awaken the masses,” Kerns says. “We must save the Republic, and we will not do that if we continue on this unsustainable path.”
But nullification also has a controversial history. It was invoked by South Carolina lawmakers seething over tariff laws in the antebellum South, and again during the civil-rights era, when states opposed to the landmark Brown v. Board of Education decision of 1954 used the idea of interposition, nullification’s kissing cousin, as a mechanism to resist integration. Proponents are eager to dispel the stigma shrouding the concept, which Madison and Jefferson popularized in the Virginia and Kentucky resolutions of 1798. “It just gets back to the Constitution,” Republican presidential hopeful Gary Johnson said of nullification in a recent interview. “It really is a formula for righting all our wrongs.” But the U.S. Supreme Court has consistently ruled that federal law trumps that of the states.
Skees, whose fondness for the Constitution apparently does not extend to its Supremacy Clause, thinks the Court is wrong. He says the movement is a way to re-orient a nation that has veered from the course set by the framers. He got his start in politics about a year-and-a-half ago, when he began leading a study group at a local restaurant near his home in Whitefish. The syllabus consisted of two texts: the Constitution and The 5,000 Year Leap, a right-wing tract written by Cleon Skousen and evangelized by Glenn Beck. His teaching technique was to juxtapose America’s storied history with its troubled present. “The most important part of the Tea Party is education,” he says. “Figure out what our country was designed to be like. Determine for yourself if we were better off then or better off now. And if you think we’re better off now, then don’t come back to our meetings, because there’s nothing we can do to help you.” He pauses. “But that has never happened.”
Skees spends a lot of time talking about the creeping threat of socialism and the way Washington has wrested away the rights of states and local municipalities. His policy prescriptions include privatizing public schools, repealing the 17th Amendment (which established the direct election of U.S. Senators), eliminating the Commerce Department and replacing the income tax with a flat “Fair Tax” on consumption. After taking office in January, he introduced bills aimed at repealing renewable-energy standards, reducing the number of school districts and Supreme Court justices in Montana and further restricting authorities’ ability to seize firearms in a state with famously lax gun laws. He mulled a measure to charge the federal government rent for the land it occupies in the Big Sky state, instead opting for one that gave Washington 90 days to show the territory was legally acquired. All of them died, as did his idea of a nullification committee. (Its members, Schweitzer chuckles, “would have been the most powerful people on the planet.”) Forty-two House Republicans voted for the plan.
“It’s hard for these ideas to catch on,” Skees admits. But other say these notions have been percolating in Montana politics for a long time. “There’s a history in Montana of people running for office on these ideas. You know the bumper stickers: ‘I love my country, it’s my government that scares me,’” says Christine Kaufmann, a Democratic state senator who has served in the legislature since 2000 and researched right-wing movements for the Montana Human Rights Network. “That kind of sentiment has been nurtured by the conservative Republican party. These ideas can find a home there. You saw this kind of rhetoric with the Freemen standoff, the militia movement, talking about states’ rights over issues such as public land and gun rights.” The “frightening thing,” says Kaufmann, is that over the past couple of years rhetoric of this sort has migrated from the margins to the mainstream.
At times the path has been bumpy. In a campaign to recapture the Constitution, scores of bills brought this session may themselves be unconstitutional, says Susan Byorth Fox of the state’s nonpartisan Legal Services Division. House Speaker Mike Milburn says Republicans have sparred over how to marshal the passions of their freshmen, who propelled the party to a 68-22 supermajority after several sessions of virtual deadlock. Irked by the spate of state-sovereignty measures, a senior GOP legislator blistered the freshmen for sidetracking the party’s agenda of growing jobs and promoting natural-resource development. “You are scaring the you-know-what out of [my constituents],” he said. “Stop letting us look like a bunch of buffoons.”
Governor Schweitzer has had a good time lampooning the nullification movement, whose members he calls “un-American” extremists. “Any day in this building could be an episode of the Colbert Report,” he says. A former mint farmer with a bolo tie and a showman’s flair, Schweitzer trademarked a cattle brand that reads “VETO,” and keeps a pair of irons bearing the legend in his office, near a Native American headdress and a skunk pelt. He has become a one-man retaining wall against the waves of conservative legislation, issuing 79 vetoes this session, the most since Montana’s 1972 constitutional convention.
But Schweitzer isn’t shy about tapping into the state’s deep vein of anti-Washington sentiment either. In 2007 and 2008, he spearheaded the successful opposition to a federal ID card. “We are putting up with the federal government on so many fronts, and nearly every month they come out with another harebrained scheme, an unfunded mandate to tell us that our life is going to be better if we’ll just buckle under on some other kind of rule or regulation,” Schweitzer said then, adding that sometimes the best way to deal with Beltway bureaucrats was to “just tell them to go to hell and run your state the way you want to run your state.” Democratic Representative Galen Hollenbaugh, who says he is embarrassed and frustrated by the legislature’s lurch to the right, admits: “Our side demagogues as well as theirs.”
Much of the rhetoric has targeted freshmen like Skees, who was portrayed by Democratic campaign ads and the liberal blogosphere as “hate-based extremist” and “a wing nut’s wing nut.” A day after agreeing to an interview, Skees abruptly canceled it, wary that a national magazine would twist his crusade “into something it is not and therefore aid in killing it,” he explained. “I cannot in good conscience risk it.” In the end he did, hoping to plant the seed for the movement to flower around the country. “All day long the legal precedent is against nullification,” Skees concedes. “But if 30 states say something’s not going to happen [here], what is Washington going to do?”
The problem with turning the federal government into a catchall vessel for local grievances, says House Minority Leader John Sesso, is that Montana starts to shoulder the burden of solving problems it doesn’t really face. “What Republicans did in 2010 was to transfer national problems to the local level,” says Sesso, who has the avuncular manner, white beard and rumpled bearing of a college professor. The state, which is about 90% white, has considered proposals that require proof of citizenship to receive state services and criminalize the hiring of illegal aliens. “Here we were,” Sesso says, “in the little townships and cities and rural areas of Montana, and we’ve got legislative candidates railing against things like illegal immigration. This may be the flavor of the day, but we have got to stay focused on Montana’s problems.”
Importing federal problems in the name of states’ rights isn’t the only irony. Like other largely rural, conservative states, Montana is a leading beneficiary of the federal government’s largesse, raking in $2.13 in aid for every tax dollar it sends to D.C., according to a Daily Beast analysis of IRS statistics. “We get good bang for our buck,” says Sesso, who attributes nullification mania to voters’ widespread frustration with federal policies, the absence of the kind of budget crisis burying other states and a band of new legislators who took November’s electoral rout as a mandate.
None of Montana’s nullification bills became law. One by one, they succumbed to procedural flaws or died in the Senate, and much of the legislation that snuck through was seared by Schweitzer’s veto brand. And yet the movement’s struggles haven’t deterred Skees. “Today maybe nullification is rejected by a slim majority,” he says. “But you wait. In 2012, I suggest it will be a lot different.”