Woman holding a small cannabis plant in her garden (Getty images illustration).
A high-wire act to pass massive legislation implementing recreational marijuana in Montana before the expected end of the legislative session later this week has hit a snag: the state House voted down substantial amendments from the Senate to House Bill 701 that found a compromise on some of the cannabis industry’s key concerns, before passing a motion to reconsider that vote, meaning they’ll repeat the debate Tuesday.
The Senate amendments, drafted earlier in the month in a special select committee with notable input from Sen. Jason Ellsworth, R-Hamilton, and Democrats including Sen. Tom Jacobson, D-Great Falls, failed a House vote Monday 47-53. With some exceptions, such as House Speaker Wylie Galt, R-Martinsdale, and HB701 sponsor Rep. Mike Hopkins, R-Missoula, Republicans marshaled against the Senate amendments, which brought the bill closer to language in I-190, the ballot initiative voters passed last year to legalize adult-use marijuana. Hopkins, as the day’s debate neared its end, made a successful motion to reconsider the vote, buying more time to convince reluctant Republicans and avoid sending the bill to a conference committee where the two chambers would hash out their differences. Hopkins said he did a “pretty bad job describing some parts of the situation and would like to attempt to clarify some things.”
The motion passed 56-43, and could save the Legislature some extra work late in the session if lawmakers change their tune tomorrow.
“This is a bill that needs a couple of days’ more work,” said Rep. Bill Mercer, R-Billings, one of the Republicans who voted against the Senate amendments.
The House passed three bills to implement recreational marijuana to the Senate. Two, HB707 and HB670, came from lawmakers on the more conservative wing of the GOP, and taxed pot at a lower rate and avoided the investment in government programs that’s in both HB701 (in the form of the HEART Fund, a substance abuse prevention proposal from Gov. Greg Gianforte) and I-190 (conservation easements among other environmental and recreational purposes). The Senate’s task, at least as the House saw it, was to scrap those two bills and put elements from each into HB701, which has the backing of Gianforte’s office.
But this, Republicans in the lower chamber said, did not come to pass.
“One of the reasons we sent three bills to the Senate was to meld them together,” said Rep. Brad Tschida, R-Missoula. “We’ve seen none of that.”
Senate lawmakers introduced dozens of amendments, some of which erased changes made by the House, while others found some common ground. One, for example, restored the ability of municipal governments to levy a local-option excise tax on weed sales, an opportunity available in the first version of the bill but removed in the House. The amendment had the caveat that voters needed to approve the tax, and capped it at 3% as oppose to the 5% in the original bill.
The Senate also restored language allowing monies in the HEART Fund to be used to draw down federal Medicaid matching dollars, brokered an agreement on the issue of a local option — whether a county that voted against I-190 should by default have to have legal recreational marijuana in their borders, and vice versa — allowed for restricted home grow and grandfathered in existing outdoor grow operations that would otherwise be banned under the bill.
Perhaps most significantly, environmental groups, several key backers of the original initiative and their various legislative allies clawed back some funding for Habitat Montana and other conservation programs that was in I-190 but largely not found in HB701. Lawmakers have criticized the initiative and its supporters for seemingly dictating how to appropriate funds, the sole purview of the Legislature — a court case on the constitutionality of that language is in process.
But all that, with the House’s vote, hangs in the balance until the vote on reconsideration later this week.
“There was no compromise on this bill,” said Tschida. “While I think the fix is in, and we know it’s going to happen, I want everyone to look at this right now and think about the consequences of your decision.”
House Republicans balked on the revival of the local option tax and the 20% tax rate on recreational marijuana in general, warning that it could create a black market and enable intrusions from a world atlas’ worth of different international cartels. Home-grows, they said, are too difficult to regulate, and edibles are too attractive to children. High-grade hash, Tschida suggested, has effects comparable to methamphetamines.
And they took issue with the HEART Fund spending and the boost for environmental programs. What appealed to them about House Bill 670, for example, was that it taxed marijuana at a lower rate, used some of the proceeds to pay down pension obligations and put the rest in a trust fund meant to address the downstream effects of legalization. HB701, on the other hand, plants “acorns” that will cost the state later, to quote Rep. Mark Noland, R-Bigfork.
“The purpose of the tax is not exclusively to deal with the economic and social cost of marijuana — the expenditures are going to be made on a number of different accounts…that don’t pertain to those things at all,” said Mercer.
The House’s vote also threatens certain amendments in the Senate that lawmakers Monday didn’t specifically object to will also go, such as one added provision that creates a special drug court to handle expungement and resentencing appeals from those who had been convicted on marijuana-related charges in the past.
In other words, the Legislature still has work left to do on marijuana. Every compromise made with I-190 and Democrats in the Senate seemed only to alienate Republicans in the House. So, the bill could very well go to conference committee this week. If they do nothing, I-190, which is already in statute, remains law, though how the litigation around its revenue allocations will proceed remains to be seen.
Hopkins’ big pitch to his skeptical party-mates was essentially that his bill was in essence the best way to make sure that didn’t happen.
“I appreciate the discussion — but I feel like most of those objections are to I-190,” he said. “If you don’t like home grow, this is the bill that has some restrictions on it.
“When we walked into this session, the question was not should I-190 be law.”
Editor’s note: This story was updated most recently at 6:00 p.m. on April 26 after the Legislature passed a motion to reconsider their previous action on House Bill 701, meaning the House will again vote on the Senate’s amendments to the bill on Tuesday.
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