HELENA, MT – On April 29, in the final hours of the final day of the 2021 Montana Legislature, proponents of marijuana reform — and arguably, democracy itself — received some very bad news.
Even though Montana voters had voted for marijuana legalization last November, and the state House and Senate had already given the green light to HB701, a largely pragmatic bill to establish a rec market, GOP lawmakers pulled another, heavily-amended bill out of their back pocket. HB640, the new bill, made enormous changes to the existing medical marijuana program: Primarily, it required chronic pain patients — roughly 80% of the program — to get a special recommendation from a pain specialist, potentially destroying much of the industry in the process. Additionally, it rewrote the revenue allocations of the adult-use bill, which lawmakers spent months finalizing.
Despite its potential harm and a complete lack of opportunity for public comment, HB640 passed out of an emotionally fraught last-minute select committee, and was fiercely debated for 30 minutes on the ornate House floor.
“Vented,” however, may be a more apt description, as it was primarily an opportunity for hardline anti-pot state Republicans to demonstrate their lack of understanding of marijuana, as well as their willingness to disregard the will of their constituents.
Montana GOP state Representative Becky Beard, for one, said patients suffering from chronic pain should turn to physical therapy or “an exercise regimen” instead of medical marijuana. Republican state Rep. Brad Tschida suggested patients try “weight loss” or even ibuprofen, as opposed to the medical marijuana voters already had access to.
Although the back-pocket bill was soon killed in the state Senate, and Gov. Greg Gianforte signed HB701, the better bill, into law on May 18, the drawn-out fiasco surrounding marijuana legalization in Montana made one thing clear: the will of the people doesn’t always count for much.
“I was furious. It just threw a bomb into the legislature that did not need to happen,” Democratic Representative Katie Sullivan told The News Station.
“I think it will be a motivator for Democrats, and that the Republicans that joined us will be able to use it as well. Republicans that went against it the entire time might have some explaining to do.”Rep. Katie Sullivan
Over the past year, courts and lawmakers in GOP-led states across the country have embraced similarly anti-democratic tactics to crush voter-led cannabis reform measures. From Nebraska to South Dakota or Mississippi to Florida, anti-marijuana forces inside and outside of state legislatures have killed measures both before they’ve actually made it onto the ballot and after they’ve been approved by voters.
Ironically, considering cannabis’ bipartisan appeal, these acts of disenfranchisement throw a wide swath of the electorate, including many of the GOP’s own voters, under the proverbial bus.
Ain’t Montana Republican’s First Anti Marijuana Rodeo
Although Montana voted to legalize medical marijuana way back in 2004 by a margin of 62-38, the program has long been rife with resistance and instability. In 2011, Montana Republican Speaker of the House Mike Milburn sponsored a bill to repeal the program. The repeal was launched after the state saw a huge uptick in new patients, from 1,000 to 28,000 in just a couple of years.
“It’s poison,” Republican state Sen. David Howard said of marijuana at the time. “It’s kind of like taking arsenic with valium with it.”
The repeal bill was vetoed by then-Gov. Brian Schweitzer during a performance in which the Democrat physically “branded” the vetoed bills on the steps of the Capitol. But in a last-minute ploy foreshadowing the events of 2021, Republicans introduced SB423 — a separate bill to limit each dispensary to serving a total of three patients. Around the same time, DEA agents raided 26 marijuana grows and dispensaries across Montana. The state Senate’s anti-medical marijauna bill passed, handicapping the program for years.
“It was just a PR stunt. A very effective one,” Dave Lewis, a former Montana Republican lawmaker and budget director who is now the Strategic Advisor for the Montana Cannabis Guild, told The News Station.
The former Republican lawmaker had planned on introducing his own measure to put some sideboards on the medical program on the same day as the raids. That bill never saw the light of day.
A Series of Close Calls
Before the election even took place, GOP Representative Derek Skees sponsored legislation to preemptively repeal the voter initiative. When the initiative passed by such dramatic margins, however, he rescinded the bill.
“Say 51% [supported the measure], then that bill would’ve been a good idea, because then it would’ve allowed us to say, ‘Well, listen, Montanans are a little confused on this. Not everybody was really for it,’” Skees said shortly after the election.
Soon, however, another concern arose: The state’s GOP majority made it clear it had no interest in actually implementing Initiative 190. Instead, they were going to repeal it and replace it with a bill of their own. (Opponents argue Initiative 190 is unconstitutional for suggesting it has the power to allocate cannabis revenue to conservation and land management efforts, an issue at the center of an ongoing lawsuit).
Three such bills were introduced, including two by the aforementioned Reps. Derek Skees and Brad Tschida. And the version of HB701 that passed the House, which was crafted with input from the extremely powerful global consulting firm Deloitte, as The News Station first reported, contained instances of overreach that could have stifled the nascent industry before it had a chance to succeed. It would have presented all forms of advertising, brand-specific packaging and outdoor grows. Most alarmingly, it would have required all businesses to acquire a completely arbitrary annual “certificate of good standing” from county officials so they could even operate.
All three bills passed the House, but only HB701 survived a Senate committee that also reworked the bill to bring it in line with the voter initiative.
“The priorities of human and patient health were taking a backseat for a taxable financial gain.”Zach Block
Frustration over the bill’s progressive provisions came to a head during the hearing on the last day of the session.
At one point during the House debate, Sue Vinton, the state House’s Majority Leader, echoed Skees’ earlier comments on his repeal bill.
“99.9% of voters didn’t even know what they were voting for,” she argued.
That was offensive to proponents.
“To say that people were tricked or not smart enough to understand what they were doing, I think that’s putting down the voters’ intelligence. I don’t think that’s right,” Rep. Sullivan told The News Station.
When asked how many pain specialists there are in the state to prescribe medical marijuana, GOP Rep. Matt Regier, the sponsor of the destructive amendment, admitted he didn’t know. (Weeks earlier, Regier’s father, state Sen. Keith Regier, invoked the infamous Nazi propagandist Joseph Goebbels by name on the Senate floor while speaking in favor of an anti-trans bill.)
“The priorities of human and patient health were taking a backseat for a taxable financial gain,” Zach Block, the owner of Montana Canna in Kalispell, who argues that the amendment was intended to push medical patients into the recreational market, told The News Station. “There was little to no consideration given to the humans and businesses which would be affected by such a careless and greedy decision.”
Nationwide Suppression Tactic, No Matter its Popularity
Across the country, GOP lawmakers and justices have employed a range of tactics to shut down similar measures, often with success.
Last year in South Dakota, adult-use cannabis passed 54-46%, but in February, Republican Governor Kristi Noem coordinated a lawsuit to overturn the amendment on the wobbly grounds it violated a “single subject” rule in the state’s Constitution; in other words, that its various components, like taxation, civil penalties and licensing, must be approved in separate measures. Activists appealed the decision to the state Supreme Court and are awaiting a ruling.
In 2020, Nebraska’s Supreme Court similarly employed a “single subject” argument to boot a medical marijuana measure off the ballot, even though it had gathered 182,000 signatures and been validated by the Secretary of State.
In the dissenting opinion, Justice Jonathan Papik wrote, “the people’s right to initiative has been diminished.”
Activists in Nebraska are gearing up for a re-match in 2022, and the state’s Republican Gov. Pete Ricketts is already pushing back. He’s the governor who recently said medical marijuana will “kill your kids.”
Down in Florida, the state Supreme Court tossed a petition to legalize recreational cannabis in the Sunshine State, which had already gathered over 500,000 of the necessary 900,000 signatures to qualify for the 2022 ballot. They argued the amendment language was “misleading” for not stating that cannabis possession remains federally illegal. Sure.
“Florida voters have taken this into their own hands because the Florida Legislature failed to do right by the people in taking legislative action on legalization,” Nikki Fried, Florida’s Agriculture Commissioner, emailed The News Station. “It’s clear those in power don’t appreciate these citizens’ initiatives based on the bills they keep passing.”
Earlier this month, as The News Station reported, the Mississippi Supreme Court struck down a medical marijuana measure which passed with support from the Koch Brothers’ Americans for Prosperity PAC and with overwhelming support, even after GOP lawmakers attempted to deceive them by adding a competing and utterly vacuous competing bill to the ballot.
“Whether or not one supports marijuana reform, Americans should be outraged at these overtly undemocratic tactics, and as a result, the most vulnerable Mississippians will continue to be denied safe access to a therapy that could offer them significant relief from severely debilitating conditions,” NORML State Policies Manager Carly Wolf said in a statement.
Can Dems Harness Cannabis Momentum in Red States?
The GOP’s anti-pot obstructionism is particularly disconcerting considering the rare opportunity that cannabis presents for consensus building. A Hill-HarrisX poll conducted this March found that 75% of Americans support either federal legalization or permitting states to decide for themselves. I doubt there’s another cause that Proud Boys, my grandma, Snoop Dogg and Charles Koch can all get behind.
“I’m sure a lot of conservative Republicans won’t ever speak to me again, but that’s OK.”Dave Lewis
That bipartisan support begs a question: Can Democrats in states like Montana harness their support of pragmatic reform in order to win back seats in the 2022 election?
Dave Lewis, the former Republican budget director, is skeptical the outcome will give Democrats much ammunition, despite the minority party’s commitment to fighting for the voter initiative.
“I don’t think it’s something Democrats can really run with,” he said. “The two legislators who worked on it [Rep. Mike Hopkins, the original sponsor of HB701, and Sen. Jason Ellsworth, chair of the senate committee] and got it done were Republicans. I don’t know how Democrats can [argue otherwise].”
“I’m sure a lot of conservative Republicans won’t ever speak to me again, but that’s OK,” he added with a chuckle.
Rep. Sullivan, on the other hand, is more optimistic.
“The Democrats in the House unanimously supported HB701 after changes were made to bring it closer to I-190,” the Democrat said.
“There were many attempts to take it out, to take it down; arguments in bad faith were made over and over again to get rid of it. The Democrats stuck with voters on I-190. We fought down 640,” Sullivan told The News Station. “I think it will be a motivator for Democrats, and that the Republicans that joined us will be able to use it as well. Republicans that went against it the entire time might have some explaining to do.”