After failing to gain the needed three-fifths vote in a first try Thursday night, Lt. Gov. Delbert Hosemann held the Senate over into Friday morning and it passed a legislative alternative to the medical marijuana program voters approved in November.
Senate Bill 2765, authored by Senate Medicaid Chairman Kevin Blackwell, R-Southaven, passed 30-19 on Friday morning at about 1:15 a.m. The bill had failed a Thursday night vote, 30-21, needing 31 to pass. The lesser number for passage was needed in the wee hours Friday because some senators were absent, lowering the three-fifths threshold.
Sens. Jennifer Branning, R-Philadelphia, and Tammy Witherspoon, D-Magnolia — both of whom voted against the measure the first time — were absent for the second vote. Sen. Lydia Chassaniol, R-Winona, who voted for the bill the first time, was absent the second vote. Sen. Benjamin Suber, R-Bruce, had been absent for the first vote but voted for the bill on the second vote.
The measure now heads to the House, where it faces an uncertain future. Senators included a “reverse repealer” in the measure, meaning the House could not pass it on to the governor without more debate in the Senate.
The measure would take effect only if the courts strike down the voter-passed Initiative 65 medical marijuana program, which is now in the state constitution but faces a challenge in the state Supreme Court. “Trigger language” was added to the Senate bill in an amendment on Thursday. Originally the measure, if passed, would have created its own program regardless of whether Initiative 65 was there or not.
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The bill would tax 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 go to education, including early learning and college scholarships.
The bill also would levy 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 would 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 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 first 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.
Some proponents of the Senate legislation passed Friday morning 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 even if Initiative 65 is upheld.
Some of the bill’s supporters reasoned that since many state leaders are opposed to Initiative 65 — including those in charge of 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 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 the leadership was trying to whip votes and come up with changes to the medical marijuana proposal to garner the three-fifths majority needed.
Some key issues that led to the bill’s bipartisan defeat in the first attempt 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.