In the background of the first half of the Montana Legislature, lawmakers have been quietly cultivating the bill to bring recreational marijuana's implementation to life.
Legislators in the majority party said last week they hope to reach a consensus-worthy bill — a reflective but revised version of the initiative voters passed last year — and have continued to hold high-level meetings with the governor's office. The bill could surface by the end of this week, a spokesperson for the House GOP said.
Rep. Mike Hopkins, R-Missoula, has taken a leading role in pulling the pieces of implementation together and is expected to carry the bill. He and others have prioritized a safe implementation of cannabis, which remains illegal at the federal level.
"People are going to be able to have faith it's a good program, put together the right way with good sideboards on it," Hopkins said. "The things that people voted for will be implemented; certainly, on the programmatic side."
Democrats say their "starting point" is to pass a recreational marijuana program in closest terms with the structure voters approved in November. House Minority Leader Kim Abbott, D-Helena, said the caucus believes Montanans knew what they were voting for when 57% passed the measure.
Republicans control two-thirds of the House, a majority in the Senate and the Governor's Office, but Democrats say standing up a new industry in the state requires broad support to be sustainable.
“My sense is that (GOP lawmakers) pulled us in because they recognize it’s got to be a bipartisan piece of legislation if it’s going to get across the finish line,” Abbott said.
The conversation around legislating cannabis legalization typically falls into two parts, regulation and tax revenue.
Hopkins declined to comment on many of the details in conversations about implementation so far. But from a "30,000-foot view," lawmakers from both parties involved in crafting the upcoming recreational market believe the regulatory framework should follow, to some degree, the blueprints developed over the last 15 years for the state's medical marijuana program.
With state economists projecting $50 million in annual tax revenue once the market has matured a few years, weed revenue is beginning to look like a legislative wishbone for the second half of the session in Helena.
"I couldn't tell you where the revenue streams are pointing right now," Hopkins said.
Hopkins said he envisions the debate over recreational marijuana implementation will soon turn into one of the session's biggest tasks. He predicts the upcoming process could look similar to the last session's undertaking to pass an infrastructure spending bill, which had been a bitter, protracted fight until lawmakers finally reached a consensus in 2019. Hopkins had a key role in brokering that system last session.
"Certainly, I think it's got to be one of the bigger conversations for the second half of the legislative session," Hopkins said of recreational marijuana, noting other items, such as the state budget, will take up a lot of energy, as well. "But by the same token, I think large working groups make better policy."
The voter initiative's language said revenues would be "dedicated" to the state general fund, substance abuse treatment, veterans' services and a few others, while roughly half was set aside for conservation programs. Public lands advocates held rallies and energized voters on the premise that the tax revenue would be spent to open more access to public land, but opponents to legalization, before Election Day, challenged the initiative's language in court; the constitution doesn't allow voter initiatives to appropriate funding, only the state House of Representatives has that authority.
The campaign that brought the initiative has maintained the "dedications" were merely "suggestions" for the Legislature. The state agencies who are named in the lawsuit urged the district court judge to stall the proceedings, contending that if lawmakers take a different route in allocating tax revenues, the case may be moot. The judge granted the motion, putting the case on hold until the Legislature adjourns in two months.
Even if the judge rules the funding allocation in the initiative was unconstitutional, Hopkins doesn't believe the ruling would be fatal to recreational marijuana's passage.
"I don't think that the revenue question in the initiative is one that kills the outcome of the initiative vote," Hopkins said. "But the people of Montana need to know there is no initiative that will ever have any authority to direct any revenue anywhere."
Others are confident, too. Gov. Greg Gianforte, during his first week in office in January, had baked the new marijuana tax revenues into his proposed budget, staking claim to the money for substance abuse treatment. That plan hit a snag in February, when a budget committee voted against funding Gianforte's Healing and Ending Addiction Through Recovery and Treatment, or HEART, Act, in the legislature's proposed budget and urged a policy committee to take it up for further vetting.
“We made a pretty simple proposal which was, if we're going to legalize recreational marijuana, let's use the revenue from that to help deal with substance abuse and addiction recovery,” Gianforte said in an interview. “That's what the HEART fund is all about. I thought it made an awful lot of sense. I still think it makes an awful lot of sense. Some legislators thought otherwise. I'm still hopeful that we will reinstitute the HEART fund because I think substance abuse, addiction, the impact it has on our communities and our families across the state is probably the No. 1 societal issue that we face.”
Democrats have a broader view of funding possibilities. Abbott said it was "obvious" initiatives can't appropriate money, but also said voters gave a "clear signal" where the money should be spent.
“I think it makes sense for tribal programming to be included. It makes sense for Habitat (Montana) to be included. Clearly voters were voting for funding for public lands when they voted for the initiative,” Abbott said. “I think funding programs through the Department of Public Health and Human Services in terms of treatment and mental health, that makes sense to me out of the gate. I think it’s in line with our core values as a caucus but also acknowledges voters just overwhelmingly passed this, so we should be considering what their intent was and what they suggested we fund.”
The medical marijuana program, enacted by Montana voters in 2004, has seen substantial changes in recent sessions that brought credibility to the industry. So it makes sense, Hopkins said, to follow the medical marijuana framework when introducing a recreational market that needs oversight on testing, sales and facilities.
"It's obviously a bigger picture than this, but boiler-plate, 30,000-foot view, if you were to take the medical marijuana program that we have in the state of Montana and scratch the word 'medical' out of it, you have a pretty good idea where its going," Hopkins said. He added lawmakers can draw from other states, too, in building the program.
Democrats and Republicans both share a concern about a kind-of "Big Weed" industry coming to the state flooding the market and running roughshod through communities with advertising and health problems the same way "Big Tobacco" once did.
Senate Minority Leader Jill Cohenour, D-East Helena, said last week she thinks the regulatory framework should shield the medical marijuana providers who will get the first run at the recreational market in January 2022. Since legalization passed, medical providers have been wary of huge companies rushing in and pushing prices so low, so fast that smaller businesses would dry out before the next crop.
"My hope is that we continue to make this a Montana-made situation and those folks, who have already put the effort in to get moving and get their businesses up for medical marijuana, will be able to take advantage of moving into the recreational area," Cohenour said.
Republicans tend to talk first about shielding communities and children from an overexposure of marijuana enterprises. Limiting business licenses to one per 10,000 residents is the first suggestion from the GOP to that end. Rep. Lolo Sheldon-Galloway, R-Great Falls, said the number of middle school students in her community who use marijuana daily is double the statewide rate, citing the Cascade County Substance Abuse Prevention Alliance while presenting her bill to limit dispensaries to one per 10,000 residents. The effect of that bill would have allowed for 100 marijuana dispensaries statewide.
Sheldon-Galloway's bill failed to get out of committee, but another, more prohibitive proposal has been endorsed by a committee in the upper chamber.
Senate Bill 341, sponsored by Sen. David Howard, a Park City Republican and chair of the Senate Public Health, Welfare and Safety Committee, would add the same limitations as Sheldon-Galloway's bill, including doubling the distance a dispensary can be from a school or place of worship. Howard's bill, however, would also ensure employers may still terminate employees for using marijuana.
"Most employers want to maintain a drug-free workplace," Howard told the committee during a Feb. 26 hearing.
Sen. Diane Sands, D-Missoula, who has worked on the medical marijuana program for years, raised concerns about the bill's rushed pace through the committee. The bill could shut out medical marijuana providers across the state who have been established for years, she said.
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The bill also limits products to 15% THC and purchases to one ounce per week. J.D. "Pepper" Petersen, president of the Montana Cannabis Guild and one of the architects of I-190, said creating customer limits would mean setting up a database to track consumers across the state. Petersen told the committee such a tracker on consumers was left out of the initiative so that marijuana use wouldn't interfere with people's right to own firearms.
"The initiative enshrines privacy," Petersen told the committee.
The committee passed the bill 6-3. It was referred to the Senate Finance and Claims Committee a week ago.
Still on the table
Changes to the program's inner-workings, which could come through companion bills, are harder to forecast. Will Montana's tribes, with their ties to the federal government, be able to take part in the new enterprise? Sen. Jason Small, a Busby Republican and member of the Northern Cheyenne Tribe, believes they can. Small is working on his own proposal to make that happen, although he said this week it's too early comment.
And will marijuana businesses be overseen by the Department of Revenue, as the initiative set out? Or will it be housed in the state health department, which already oversees the medical marijuana program and could replicate the structure for recreational cannabis? Everything, Hopkins said, is subject to change until the governor's pen touches paper.
"I think folks will be working on this right up until the day that it is debuted and I think we will continue to work on it all the way to the point that it is delivered to the governor’s desk for his signature and it is signed into law," Hopkins said. "Before that point I don't think the work on this will stop."