If reaching consensus had always been required to call a Mississippi special session, many critical policies never would have passed. Credit: Eric J. Shelton, Mississippi Today/Report For America

The legislative roads for two of the most high-profile issues of the 2021 session — a massive tax swap proposal and the legalization of medical marijuana — appear to have reached a dead end.

While the ability of Mississippi legislators to revive an issue should never be underestimated, it appears the joint rules would make it near impossible to bring back to life both issues.

The end came quietly when House Judiciary B Chair Nick Bain, R-Corinth, made a motion to go to conference on a Senate bill that contained the language legalizing medical marijuana. Senate Finance Chair Josh Harkins, R-Flowood, did the same for the House bill that would have enacted the tax swap. Both motions were approved with no fanfare.

Conference committees consist of three senators and three House members and are formed to hash out the differences between the two chambers on a bill. The reason sending the two issues to conference likely kills the proposals is Legislative Joint Rule 25, which says in part, “When a conference report is considered by the house of origin and it contains an amendment by the other house which adds code sections not included in the bill as passed the house of origin, a point of order that the conference report is not in order shall be sustained and the bill shall be returned to conference” to remove those offending code sections.

Mississippi legal code is broken down by sections with laws dealing with drug enforcement, for instance, found in one code section, and laws dealing with taxes found in other code sections.

The Senate added the language legalizing medical marijuana to a bill dealing with research on cannabidiol, or CBD oil. The code sections dealing with the legalization of medical marijuana was not in the original bill.

Ditto for the House adding the tax swap proposal — multiple code sections dealing with the tax code — to a bill authorizing the sale of bonds to finance long-term construction projects across the state.

A couple of scenarios could occur where Joint Rule 25 is circumvented.

The first is if no member raises a point of order challenging the addition of the code sections. A point of order is not made automatically. A member must raise the point of order when the legislation is brought up for consideration.

There have been popular proposals approved in the past in obvious violation of legislative rules, but no member was willing to raise the point of order to kill the proposal. That is not likely to occur especially in the House where Rep. Joel Bomgar, R-Madison, strongly opposes efforts of the Legislature to approve a medical marijuana proposal that he believes is a not-so-subtle attempt to weaken the citizen-sponsored medical marijuana initiative he helped to pass in November.

The other path around Joint Rule 25 would be for the two presiding officers — House Speaker Philip Gunn and Lt. Gov. Delbert Hosemann, who presides over the Senate — just to ignore the rule if a member such as Bomgar raises a point of order. That would be unprecedented, but most likely the presiding officers could get away with it.

The courts, based on precedent, would not overrule the presiding officer. The only option would be for the presiding officer to be overruled by a vote of the chamber where he presides. That also is not likely to happen. Seldom would a majority of a chamber go against the presiding officer in such a public manner.

No doubt, both Gunn and Hosemann would want to ignore Joint Rule 25 in these particular instances. Hosemann has spent a considerable amount of the Senate’s time this session trying to pass the medical marijuana legislation, including keeping the chamber in session one day to around 1 a.m. Gunn calls the tax swap bill, which he authored, the most important legislation of his tenure. It would phase out the personal income tax, reduce the 7% sale tax on food in half and increase the sales tax on many other items by 2.5% on each dollar spent.

But it also is unlikely that Gunn and Hosemann, both attorneys, would simply ignore the plain reading of Joint Rule 25.

So, in other words, both the Legislature’s approval of medical marijuana and of a massive tax swap proposal are likely dead for the 2021 session.

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Bobby Harrison, Mississippi Today’s senior capitol reporter, covers politics, government and the Mississippi State Legislature. He also writes a weekly news analysis which is co-published in newspapers statewide. A native of Laurel, Bobby joined our team June 2018 after working for the North Mississippi Daily Journal in Tupelo since 1984. He is president of the Mississippi Capitol Press Corps Association and works with the Mississippi State University Stennis Institute to organize press luncheons. Bobby has a bachelor's in American Studies from the University of Southern Mississippi and has received multiple awards from the Mississippi Press Association, including the Bill Minor Best Investigative/In-depth Reporting and Best Commentary Column.