Montana's medical marijuana law has been roundly criticized for its many ambiguities. Even less clear, though, is what the Montana Legislature is going to do about them.
The state's 28,000 medical marijuana patients and the thriving industry that's grown around them anxiously wait as Montana lawmakers weigh various proposals to reform the state's Medical Marijuana Act. With the legislative session's halfway point a week away, the only certainty appears to be heavy-handed Republicans' insistence that the Legislature repeal the law. But if a repeal bill passes, Gov. Brian Schweitzer may very well veto it, leaving the future of the industry hanging on lawmakers' ability to quickly find consensus on the competing approaches intended to better regulate the industry.
"It's the most fluid issue I've ever seen in 30 years of lobbying," says Tom Daubert of Patients and Families United, a group that lobbies for marijuana patients' rights at the Capitol.
For six months Rep. Diane Sands, D-Missoula, headed the Children, Families, Health and Human Services Interim Committee, tasked with drafting comprehensive legislation to establish a regulatory and licensing system capable of reining in perceived abuses of Montana's medical marijuana program, which 62 percent of voters approved in 2004.
But Sands' bill, House Bill 68, still awaits action in the House Human Services Committee. Instead, Republicans, who outnumber Democrats 68-32 in the House, have coalesced around House Bill 161, proposed by House Speaker Mike Milburn, R-Cascade, which would outright repeal the Medical Marijuana Act. On Feb. 10, the second reading of the bill passed by a vote of 63-37, and the chamber's final vote is expected by week's end.
Sands, serving her third term representing Missoula's House District 95, says medical marijuana hadn't previously been a partisan issue, but she believes the House Speaker's sponsorship of the repeal bill served to make it one.
"The pressure on all the Senate Republicans to vote for [HB 161] will be enormous as a partisan issue," Sands says. "I don't know how many will break away from that...I would assume there are enough votes among the Republicans since they hold enough of a majority. My bet is that it will pass the Senate."
If the bill passes the Senate it would mark the Montana Legislature's first ever repeal of a voter-passed initiative, a move most Democrats oppose, if only on principle.
"The voters are sovereign, that's my point of view," Sands says.
From there, it's up to Schweitzer to decide whether the Montana Medical Marijuana Act lives on. His office says he hasn't taken a position on HB 161 or any other medical marijuana bills being considered this session.
If the governor allows HB 161 to become law, Daubert believes the economic impact would be significant. He points to the state's hundreds of medical marijuana businesses that have created thousands of jobs, plus the ancillary businesses—like garden supply and hardware stores—that have benefited from the cannabis boom.
"There's a whole new realm of customers in the cannabis economy, and I don't think the scale of that's being appreciated or recognized at the Legislature," Daubert says. "In fact, those who are really anxious to repeal the law seem to resent the existence of any of those jobs. The attitudes certainly do contradict the campaign rhetoric from those elected officials who ran on economic development, job creation, reducing government interference in people's personal lives, who ran on liberty and freedom. On this issue, at least, they're ignoring all those claimed principles."
As Sands' bill sits in committee, lawmakers tinker with other bills that figure to move to the fore should Schweitzer veto Milburn's repeal bill. Among them is Senate Bill 154, sponsored by Dave Lewis, R-Helena. Lewis' bill originally imposed a 10 percent tax on growers. But last Friday, in a strange turn of events, Lewis essentially scrapped the bill and replaced it with one drafted by the Montana Medical Growers Association. Some call the amended bill, referred to as a "gray bill," the industry's wish list. Ostensibly it was Lewis' attempt to merge various proposals—Sands' bill included—into one. SB 154 appears to face an uphill climb.
Sen. Jim Shockley, R-Victor, thinks Lewis' bill is already irrelevant, trumped by an effort to merge more conservative proposals.
"Instead of Sen. Lewis' bill what we're going to do is have a committee bill in the Senate Judiciary [Committee], and how that's going to turn out I don't know," Shockley says.
What he does know, however, is that legislators are leaning toward drastic action.
"I would have said a month ago, six weeks ago, that repeal had no chance," he says. "I'm not going to say that today. I don't know whether it's going to be repealed or severely restricted, but it's going to be one or the other...The mood has moved much more conservative on this."
At least two other bills figure to inform the debate. One is House Bill 429, by Rep. Tom Berry, R-Roundup, which requires a physician's affidavit and a court order for the medical use of marijuana. Another, Senate Bill 170, proposed by Sen. Jeff Essmann, R-Billings, requires a three-physician panel to sign off on a doctor's recommendation.
Meanwhile, less comprehensive bills originating from the interim committee's discussions appear on their way to becoming law. Sands' bill to clarify that the Clean Indoor Air Act applies to smoking medical marijuana cleared the House nearly unanimously. A bill sponsored by Rep. Gary Maclaren, R-Victor, clarifying employer's rights related to employee's use of medical marijuana also easily passed the House.
Those two bills represent perhaps the only easy decisions legislators will make relating to medical marijuana this session. Reaching consensus on the larger question of how to appropriately regulate the industry will be much more difficult to come by—if it's even possible.
"I still feel, as I did in early November, that cannabis is likely to be among the very last issues decided this session," Daubert says.