Legislative attempt to create alternative medical marijuana program fails by one vote

Despite the Senate GOP leadership whipping votes and haggling behind closed doors all day, a measure to create a legislative alternative to the medical marijuana program Mississippi voters overwhelmingly approved last year failed by one vote on Thursday night.

Now — unless someone changes their vote on a reconsideration motion Friday morning — it will be up to the state Supreme Court whether Mississippi will have a medical marijuana program any time soon. And the Legislature won’t get to tax it or regulate it.

Senate Bill 2765, authored by Senate Medicaid Chairman Kevin Blackwell, R-Southaven, needed 31 votes to pass by Thursday night’s deadline. It failed with a 30-21 vote.

The bill would have taxed medical marijuana, with a 4% excise at cultivation, and with a sales tax patients would pay. In an effort to gain more support, the original 10% sales tax was amended to 7% on Thursday night. Most of the taxes collected would have gone to education, including early learning and college scholarships.

The bill also would have levied large licensing fees on growers and dispensary shop owners. Originally, those fees would have been $100,000 for growers and $20,000 for dispensaries. Those were reduced to $15,000 and $5,000, respectively, on Thursday night. Other changes were made in an effort to assuage those who believed such fees were to keep small businesses and farms out of the game.

The measure faced bipartisan opposition, despite the numerous last-minute concessions to reduce its taxes on marijuana and to ensure it wouldn’t thwart the Initiative 65 medical marijuana program that voters passed into the state constitution in a landslide in November.

“The bill in front of you does not replace Initiative 65,” Blackwell told senators before the vote. “It has trigger language, where in case Initiative 65 is struck down by the courts, it will be enacted. Seventy-four percent of our population approved Initiative 65, whether you like it or not … This bill only goes into effect if the courts strike down 65.”

But Senate Bill 2765 began as something of an end-run around Initiative 65, and until amended in a last ditch effort to gain enough votes, it would have “co-existed” with Initiative 65, or potentially replaced it depending on courts and the industry. Many supporters of the original grassroots voter marijuana initiative decried the legislative attempt to create a “parallel program” as dirty pool.

After years of inaction by the Legislature despite growing grassroots, bipartisan support, voters took the matter in hand in November and approved Initiative 65. It’s a constitutional amendment mandating and specifying a state medical marijuana program. It puts the state Health Department in charge, even though the department and its board say it is ill equipped for the task. It prevents standard taxation of the marijuana, and any fees collected by the Health Department can only be used to run and expand the marijuana program, not go into state taxpayer coffers. Initiative 65 allows little regulation or zoning by local governments and no limits on the number of dispensaries.

The Initiative 65 constitutional amendment also now faces litigation, set to be heard in April by the Mississippi Supreme Court. Madison Mayor Mary Hawkins Butler brought the challenge, arguing the state’s initiative process is flawed and the measure was improperly before voters. Other lawmakers and political observers have opined that Initiative 65 could face other legal challenges — and could be tied up in courts for years.

Proponents of the Senate legislation that failed on Thursday have pitched it as a backstop — a way to stand up a medical marijuana program in Mississippi, even if the state Supreme Court overturns the voter-approved constitutional amendment or it faces years of further legal challenges. Others said it could serve as a better program for taxpayers and local communities should Initiative 65 be upheld.

The bill’s supporters reasoned that since many state leaders are opposed to Initiative 65, including the agency tasked with running it, and litigation is pending, the Legislature-passed program would provide more stability for the industry. They surmise growers and dispensaries would opt for the Legislature-approved plan.

The Senate plan would have had the Department of Agriculture and Department of Revenue regulating the program, not the Health Department.

The Senate stayed in recess much of the deadline day on Thursday, in part because leadership was trying to whip votes and come up with changes to the medical marijuana proposal to garner the 3/5 majority needed for passage.

Some key issues that led to the bill’s defeat on Thursday:

• Democrats, and in particular the Black Caucus, were angered over the Wednesday passage of a Senate bill to more easily purge voter rolls in Mississippi and were not feeling very amenable on the marijuana push.

• Some Republicans were concerned the marijuana proposal had anti-competitive measures that would favor large corporations and prevent small Mississippi growers and businesses from getting in the market.

• Other Republicans did not want to vote on a marijuana proposal, period — one reason the Legislature hadn’t been able to come up with a program before voters took things in hand in November with Initiative 65.

• With Initiative 65 passing by a landslide in November, and many advocates accusing the Legislature of trying an end-run around the voter approved constitutional amendment, some lawmakers didn’t want to be seen as usurping a grassroots initiative.

The bill that failed on Thursday was held on a motion to reconsider, which means senators could revive the bill on Friday morning and take another vote. If they pass the bill on Friday, it would move to the House for consideration.

Geoff Pender