- Good evening from the University of Montana School of Journalism.

My name is Lee Banville and I am one of the professors along with Jacob Baynam who's joining me tonight.

And we've been organizing a fact checked done by six of the students in our elections reporting class for tonight's debate on the US Senate race between incumbent Democratic senator, US Senator John Tester, and Republican challenger, Tim Sheehy.

We'll be going through a couple of the issues that they discussed tonight and kind of giving you a little bit of what our team here at the School of Journalism found.

So Jacob, why don't you take it away with our first question?

- Yeah, thanks, Lee.

One of the first issues that came up in the debate was about abortion, specifically about Constitutional Initiative 128, which is a ballot measure designed to make abortion access part of the state constitution.

John Tester said that he wanted to see Roe v. Wade reinstated, and he said that CI-128 would do that.

How does that stack up?

- Well, well, not that great.

So I think it's important to take a step back.

Obviously a lot of this focuses on the overturning of Roe v. Wade, which was Supreme Court decision from 1973 that established abortion during the first two trimesters of a pregnancy to be a right protected under the so-called right of privacy in the US Constitution.

Things have always been a little bit different here in Montana.

Montana in the 1972 Constitution actually explicitly writes that there is a right to privacy, and so already that's a stronger right than we have at the federal level.

And so what 128 is about is it's about taking what is actually a Montana State Supreme Court decision.

It's called the Armstrong Decision from 1999.

In 1999, the court said that the right to privacy that's in the Montana State Constitution covers abortion access, and so, therefore, when Roe v. Wade was overturned at the federal level, Montana, the law didn't really change at all because of this Armstrong Decision and the stronger right to privacy in Montana.

What CI-128 does do is it eliminates the sort of analysis that the Montana Supreme Court did that said the right to privacy should cover abortion access and we interpret the right to privacy to cover it if it makes sense.

That is essentially what Roe v. Wade did, although it based it on a mushier right to privacy in the federal constitution.

Here in Montana, we have a stronger right to privacy and therefore it's thought that the Armstrong Decision creates a fairly strong right to abortion access in Montana.

But there's always concern that if a later Supreme Court comes along and says, "Actually, no, they misunderstood what the right to privacy really covers," that they could then overturn the Armstrong Decision like Roe v. Wade was overturned.

What 128 does is it says, "We're gonna take that and we're gonna explicitly write it into the Montana Constitution so that there's no question."

And so it would make it much stronger.

And even Mr. Sheehy who expressed his belief that abortion is generally something he opposes except for exceptions for the life of the mother and rape and incest, he said, "Look, if that's what the voters say, I'll respect that."

And so 128 does pose an opportunity to strengthen the right in Montana, but it would do nothing to reinstate the Roe v. Wade era, sort of Supreme Court right.

That would have to take an action by either the US Congress and President or the Supreme Court reversing what they reversed in the Dobbs Decision back a couple years ago.

But, you know, it wasn't just Tester sort of entering the debate about, you know, abortion.

I know Sheehy also had a lot to say about it.

- That's right, yeah.

He pushed back with some strong comments.

He said that "Democrats have refused to even entertain a Born Alive Bill when a baby is born alive.

They refuse to enshrine protection for that life."

And he said that John Tester's been a part of that.

- Yeah, so the Born Alive Act and this question of, you know, is the Democratic policy to allow abortion up until the time that the baby is just about to come out, or even with the Born Alive Act, it's to ensure the Born Alive Act was actually argued, it wasn't an abortion thing because it was after the baby had been born, all things had to be done to try and save the life of the child.

And what Democrats have generally said is, "Well, listen, you know, the abortion rights we're really talking about the stuff that's enshrined in the Montana State Constitution.

The protections that were guaranteed in Roe v. Wade, they all focused on essentially the first two trimesters or really before viability, before the baby could live outside the mother, that rules were sort of different."

That's where the sort of, you know, the balance of power was tilted towards the mother or the woman and her healthcare choices versus the state's interest in protecting a child that could live outside that mother.

And so the Born Alive Act has been a sort of political football, frankly.

It was brought up in some state-wide races in the 2000 campaign.

Essentially what it does is it says that "All actions have to be taken to protect the life of the child after it's birth."

And most say, "Well, that's actually just the government getting too involved in that moment."

Because if the doctors neglected the child, if they tried to harm it after its birth, that's a crime, 'cause that is a person.

And so if you harm them, you face the same kind of criminal sanctions you would if you harmed any other person walking this planet.

And what the opponents of the Born Alive Act were worried about is, you know, kind of second guessing the people who are in that operating room or in that hospital room about the decisions they're making about, you know, let's say the mother's having a healthcare crisis and they're also dealing with the child having a healthcare crisis.

Who do they focus on?

And they don't really want the government getting involved in that decision because it feels like it's most healthcare providers like, you can't regulate something so sort of traumatic as that kind of situation.

And so it is true that the Democrats have generally opposed the Born Alive Act, but most people would say that the issues that the Born Alive Act say they want to cover are already covered by the regular sort of state crimes around hurting a person, killing a person, you know, causing harm to that person, that applies to a newborn infant, just like it does to an adult.

- Hm-hmm.

Another issue that came up in the debate was about public lands, which is something that has been a big part of this campaign.

We've all seen the advertisements.

One thing that John Tester said was that "Tim Sheehy even served on a think tank on their board of directors whose job it was to privatize our public lands."

What did our students find out about that?

- Yeah, so there's a lot of claims around public lands.

So this one organization that we're talking about, PERC, kind of balances, so it's a nonprofit, it's based in Bozeman, and it is true that Mr. Sheehy served on the board from 2022 until he dropped off just before he announced his race in 2023.

So he did serve about a year, a little bit more, on the board.

But the question is, well, what is PERC and what's their mission?

Their mission that they have in their, and this was first reported by the "Daily Montanan" who pulled their IRS sort of nonprofit filing their 990 form that everybody, every nonprofit, has to file with the federal government.

And their 990 says that "Their focus is on sort of conservation through markets and incentives and property rights."

So what their stated goal is is to balance and make more sustainable the rights, they focus on conservation, but not in a way that damages unduly private property rights or can be done more economically.

So like for an example, which Mr. Sheehy raised, one of the things that that group has pushed is this idea of having outside companies run parts of national parks.

So if you go to, most of us if we've gone to, you know, Yellowstone and you go to, you know, one of the resorts, it's run by a corporation like Zantara ran it for a while.

I actually don't know who runs it right now, but the idea is that it saves money on the budget of the park if somebody else runs that aspect of it, right?

So they're not all federal employees, they don't all have to, you know, the federal budget doesn't have to cover all of that.

It can actually save money and therefore invest its limited budget in other things other than running the, you know, the ice cream parlor at Old Faithful.

Now, what PERC has done in the past though, is they have been advocates as far back as like 1999, which was well before Mr. Sheehy was involved in them, they did sort of float the idea of potentially transferring land from the federal government to state or local governments.

And the fear there is that if you do that, the local governments don't have the economic resources and the state doesn't either, to run huge swaths of lands.

And so you might see increased pressure in either selling those lands off, which is what Mr. Tester accused Mr. Sheehy of wanting to do, or opening them up for more use or sort of energy extraction, other things that conservationists you know, so it's not to say that the organization has never advocated that, they had sort of floated ideas in the past.

It is true also that the more recent ideas have been a lot more, I'd say less ambitious or as wide ranging, but it is a market base.

It's about like the economy and the free market should help fuel conservation.

And that's a sort of philosophical debate about what's the best way to protect public land.

Is it to, you know, have sort of economic incentives, which some people say will actually make people care about it more?

Or is it to actually just limit the sort of like market forces on these places?

Because as Montanans know, sometimes in the past when you can, I don't know, mine for copper, you might actually have long-term environmental complications that weren't built in when we were first thinking about what are the economic opportunities of that use.

- Hmm.

- Now the other thing I would bring up about PERC though is, and Mr. Tester raised it, was that the accusation was made that his, that Tim Sheehy had a shirt that said "PERC" on it, and that he had, his folks had, chosen to blur out the logo in one of the ads.

And there are two ads where it appears he's wearing the same shirt.

In one ad you do see a logo on the shirt as he is walking in couple of the shots.

And in another ad where he's sitting with his family, the logo seems to not be there.

And the "HuffPost," the "Huffington Post" did a piece where they sent some of those images off to a forensic analysis, visual analysis, at Berkeley, and they said, "It did look like the images had been altered."

And so it also appears that at least the ad makers for Sheehy were worried that the PERC connection would raise these issues that Senator Tester was raising tonight.

- Hmm, interesting.

The border came up in this debate- - Once or twice, it did, yes.

- Once or twice, Tim Sheehy was talking quite a bit about it and he said some numbers that were pretty specific that caught our attention.

He said, "We saw numbers just released recently.

Upwards of 13,000 convicted homicide offenders from countries have come into our own country crossing the border.

And also that half a million people, immigrants, have come in who have been convicted of crimes in their own countries."

Yeah, where did those numbers come from?

- Right, where did those numbers come from?

Well, I mean, they came from the federal government, but we gotta put some big sort of asterisks around or next to those numbers.

So it is true, just a couple days ago on September 25th, the ICE, the sort of Customs Enforcement agency, an Immigrations and Custom Enforcement agency, sent a letter to representative Tony Gonzalez of Texas who had wanted specific information about And the numbers they generated do have some pretty shocking statistics in it.

So like 13,099 convicted murderers.

And that turned into primarily through social media, it turned into 13,000 murderers are wandering the streets because of the Biden policies of an open border.

Additionally, that half a million convicted criminals from where they had immigrated from were here in the United States.

And there are some facts there.

So there are 13,099 people who had been convicted of murder at some point here who immigrated into the United States.

Several organizations have raised some big questions about the way these numbers are being talked about.

So first important point, the data covers essentially the last 40 years.

So since, you know, essentially 1985, since, you know, the Reagan administration we're talking about, these are the total numbers of people who ICE has documented, had committed a murder in the country they had left.

Does that mean that they are wandering the streets?

It does not.

They could be held by state or federal agencies or prisons, but they did, they may have just served a term for a crime they committed in their home country, you know, did their time, were released, and immigrated here.

It doesn't mean they have committed another crime.

Basically, it means that at some point in their life, they did commit this horrible crime.

And now sometime in the past 40 years, they entered the United States.

The other number that we had knocked around was half a million.

The number that I think we could track down was there are 435,000 convicted criminals.

Many of those crimes that they were convicted for are things like, I think 77,000 were traffic sort of incidents.

But there was also assaults and robberies and other items.

But again, that covers a huge sort of four decades sort of sweep of data.

And once again, what it says is that those 435,000 are not detained by the ICE, but that doesn't mean they're not detained.

If they had committed a crime here, they may be in custody in a state or federal system, and the numbers don't tell us any of that.

So what it does tell us is, you know, that people who have committed crimes have come into the United States.

But what we don't have a sense of is, has that number dramatically changed because of the past four years?

I mean, the numbers we saw are total, they're all aggregate for the time period, but it's been talked about like they just got here, you know, in the last three and a half years.

And I think it's important to understand that while these numbers are troubling and raise some interesting questions about how this enforcement is being done, and a lot of the issues that Republicans are raising about Southern border and frankly that John Tester would say he's also raising, it's important to put the sort of context that they are not like, you know, the last six months.

They are covering a huge swath of time and that they include a lot of various sort of criminal activities that may be, that some Montanans might not think are as serious as others.

And I would also echo that the concerns have been raised not only by journalists who've been looking into this, but the Cato Institute, which is a libertarian think tank, has also sort of pointed at some real holes in this data and raised real questions about how to use it.

But yeah, it's clear that the immigration issue remains a potent one in this debate and in this campaign.

And all you have to do is watch any of the ads and know that this continues to be it.

You know, if you do wanna know more, there is obviously the opportunity to go and, you know, there's a lot of talk about the Bipartisan Bill that was put forward in the Senate.

We didn't sort of choose to go back through that because it really boils down to it didn't pass.

And, you know, it's kind of an open question of like, you know, should that be seen as a fix?

Would it have actually fixed the border question?

We don't really know because it wasn't actually implemented.

And so we kind of chose to focus on more of the sort of hard numbers of this, but it's clear that immigration will continue to be an issue.

We've seen that in some of the polls that have been talked about.

AARP recently released one that said, "It was the top issue here in Montana."

And so, you know, I'm sure we'll see more and we'll probably be dealing with this more when we come back on the 17th of October and do a fact check for the gubernatorial debate also set to be aired here on Montana PBS and Montana Public Broadcasting.

So with that, I think what I'll do is I'll thank Jacob, thank you for the questions.

I think you put me on the spot.

- [Jacob] Thank you.

- And thank you to the students who actually got me the answers that we could share with you tonight.

And yeah, we will see you again when the gubernatorial candidates meet later in October