Senator asks for poll to try to override governor’s veto of marijuana revenue redistribution bill

By: - May 8, 2023 4:08 pm
Sen. Mike Lang, R-Malta, shakes hands with Sen. Forrest Mandeville, R-Columbus, at a news conference on May 1 in which a bipartisan group of lawmakers and a coalition of supporters urged Gov. Greg Gianforte to sign Senate Bill 442.

Sen. Mike Lang, R-Malta, shakes hands with Sen. Forrest Mandeville, R-Columbus, at a news conference on May 1 in which a bipartisan group of lawmakers and a coalition of supporters urged Gov. Greg Gianforte to sign Senate Bill 442. (Photo by Blair Miller, Daily Montanan)

The Republican sponsor and backers of the broadly supported bill to make changes to how Montana’s marijuana tax revenue is dispersed have asked the Secretary of State to allow the legislature to consider overriding Gov. Greg Gianforte’s veto of the measure.

Gianforte’s veto of Senate Bill 442 last Tuesday came around the time the Senate voted to adjourn the 2023 legislative session, causing confusion for those who developed and supported the bill alongside its sponsor, Sen. Mike Lang, R-Malta, as to whether lawmakers would have a chance to try to override the veto they knew would be coming.

Several lawmakers and officials with knowledge of the law and legislative rules said since the Senate had adjourned, apparently shortly after Gianforte had vetoed the bill, but the House was still in session, the legislature would not be able to override the veto with a post-session poll.

Senate Majority Leader Steve Fitzpatrick, R-Great Falls, who had been telling lawmakers that the governor would veto the bill, said after adjournment that the group of Republicans and Democrats who supported the motion to adjourn had “screwed themselves” because the legislature would neither have the chance to override the veto while in session, or outside of the session, because the Senate had adjourned while the House was still in session and apparently after the veto letter was signed.

A spokesperson for the Governor’s Office said Gianforte vetoed the bill sometime in the 2 p.m. hour, while the Senate adjourned around 3:19 p.m.

But others whom the Daily Montanan spoke with last week said since the veto had not been formally received by the Senate and read across the rostrum before the Senate adjourned, and the bill passed both chambers with more than a two-thirds majority, they believe lawmakers are entitled to a post-adjournment attempt to override the veto via a poll.

Under state law, a physical override poll would be sent out to lawmakers by the Secretary of State. Two-thirds of both chambers would have to vote to override the governor’s veto, and if a lawmaker does not return the poll ballot, they would be counted as a vote against an override.

On Friday, Lang sent Secretary of State Christi Jacobsen a letter requesting an override poll be conducted, arguing it should happen because the bill “was not read across the rostrum in the Senate” and because the chamber adjourned before Gianforte formally returned the bill to the chamber.

Lang wrote to Jacobsen he anticipates she will send lawmakers a copy of the bill along with the veto message and polling instructions within five working days of the “alleged veto” – which would be Tuesday.

“As an independently elected official with your own statutory authority, it is of utmost importance that you protect the Legislature’s ability to review and evaluate the Executive’s veto action,” Lang wrote in his letter. “I look forward to receiving a copy of the bill, veto message, and ballot with a return envelope so we can perform our duties as well.”

Senate Minority Leader Pat Flowers, D-Belgrade, who had praised Lang on the floor for his work on the bill, said last week in a post-session news conference he found the governor’s veto “curious” and that he also believed since the bill was not read across the rostrum, lawmakers should have a chance to try to override the veto.

“I think it’s a terrible mistake. I think he’s going to hear about it from 56 counties who are behind that bill,” Flowers said. “I think he’s going to hear from veterans’ groups and certainly is going to hear from conservation groups and sportsmen’s interests as well. And I’m hopeful that we’ll be able to overturn his veto and have an opportunity to do that.”

Gianforte, a Republican, wrote in his veto letter that SB442 “glaringly omits an appropriation,” but supporters of Lang’s bill have argued that House Bill 868 contains the appropriation. In several sections, that bill contains coordinating instructions saying if both are passed and approved, the language in HB868 would override sections relating to the new Habitat Legacy account and County Road Habitat Access account from SB442 — though the replacement sections are nearly identical to those in SB442.

The governor’s veto letter also says SB442 is “unprecedented” because it “authorizes ongoing state resources from the General Fund to maintain county roads.”

Supporters of Lang’s bill argue that his bill simply tweaks the current distributions from the marijuana state special revenue account put in place under House Bill 701 in the 2021 session, though a fiscal note shows the general fund would receive $12 million to $15 million less in marijuana tax revenue under the SB442 structure than it currently does.

“Adopting the approach of Senate Bill 442 creates a slippery slope, an incentive for local jurisdictions to reduce their services while keeping taxes higher on their citizens. Local jurisdictions will not have to dedicate as much of their local resources to their local roads as they have had to,” Gianforte wrote in the veto letter. “But instead of cutting citizens’ taxes proportionately, they can reallocate those dollars to capricious, unnecessary projects, resulting in a net increase of Montanans’ tax burden.”

Gianforte wrote further, the bill “creates the illusion that the state will accept increasing responsibility for matters that are strictly under the jurisdiction of local authorities” and that Senate Bill 536 is his preferred means to address local infrastructure projects since it contains a one-time, rather than ongoing, appropriation.

Lang, who is term limited, said last Tuesday that he was disappointed by the veto and that it was “a setback for Montana.”

He had worked with dozens of groups, organizations, and lawmakers of both parties to re-craft the original version of the bill to include the Habitat Legacy account pressed for by outdoors groups, as well as the county road funding that he had originally sought. He argued the two were inextricably linked because outdoorspeople have to use county roads to get to hunting, fishing, and recreation areas that are often in rural parts of the state.

Lang’s bill redistributes the revenue to county roads, the Habitat Legacy fund, trails, parks and recreation, the HEART Fund, veterans’ services, and crime control. But a fiscal analysis say it would take some money each year away from the HEART Fund and crime control, and more than $12 million away from the general fund, compared to the current structure.

The Gianforte Administration had wanted more of the money to go toward law enforcement and public safety; dozens of state employees from his office, the Department of Justice, Department of Corrections and Montana Highway Patrol had testified in February in favor of a different bill from Rep. Marta Bertoglio, R-Clancy, that had sought to take the money from the Habitat Montana conservation program and put it toward police and public safety.

And still other Republicans had wanted nearly all the marijuana tax revenue to go solely to the general fund to be appropriated starting in 2025, arguing that they felt voters had illegally appropriated money by approving I-190 since it contained a framework for how lawmakers could allocate the now $50+ million each year — language which the legislature tweaked but largely implemented in HB701 in 2021.

But both of those bills were tabled, as was a latch-ditch effort to get the revenue redistributed through another marijuana bill that originally had nothing to do with the revenue portion. Lang’s bill passed the House 82-17 and the Senate 48-1.

A group including Wild Montana, Montana Conservation Voters, the Montana Chapter of Backcountry Hunters & Anglers, Montana Wildlife Federation, and Mountain Mamas sent a letter Monday to the Secretary of State’s Office containing 19 pages of signatures calling on Jacobsen to poll the legislature for a veto override.

Montana Association of Counties Executive Director Eric Bryson, whose group was one of the main proponents of Lang’s bill, said Friday MACO was disappointed in the veto, that the governor was overriding the legislature’s will and turning “his back on the beneficiaries of the bill.”

“From veterans to public land advocates to farmers trying to get their goods to market, SB 442 carved out limited marijuana tax resources exactly where the public wanted them spent,” Bryson said in a statement. “We believe that this was the wrong choice for Montana and encourage the Secretary of State to follow the law and conduct a veto-override poll.”

Noah Marion, the state policy director for Wild Montana, which pushed all session to have the Habitat Montana allocation stay put, said the administration had told the organization that good, bipartisan bills would be signed by the governor.

“We all held up our end of the deal, but the governor didn’t,” Marion said in a statement. “SB 442 is bipartisan. It’s popular. It’s going something for everyone. It should be law and the Montana legislature has the right to take another look at this.”

Whether the Secretary of State’s Office decides to go forward with the potential veto override remains to be seen. The office did not respond to questions posed by the Daily Montanan by the Monday afternoon deadline that was provided as to whether it had acted on Lang’s letter and whether it agreed the legislature could attempt the override.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Blair Miller
Blair Miller

Blair Miller is a reporter based in Helena who primarily covers government, climate and courts. He's been a journalist for more than 12 years, previously based in Denver, Albuquerque and mid-Missouri.