Vermont's lawmakers have been dealing with pot for years now – every legislative session in recent memory has had some marijuana bill on the docket. And while expansions to the state's medical marijuana program have proven successful, efforts to fully legalize weed had never made it through both chambers of the legislature. That is, until S. 22 – a bill that would have made possession of up to one ounce of pot legal, as well as two mature and four immature plants per household – was passed in the Vermont State Senate and House in May. The bill also sought to establish a commission tasked with researching and delivering a plan for a tax-and-regulate system in the state to create a retail market for weed. Things, it seemed, were finally on track for Vermont to become the ninth state to fully legalize marijuana.
But cheers from the bill's supporters turned to groans when Governor Phil Scott vetoed the bill late last month. Vermont does not require an affirmative vote from the governor for a bill to pass into law, and many were hoping Scott would just let legalization happen without his express seal of approval. However, there is still hope because with his veto the Republican governor didn't issue a definitive no. Rather, he followed up with a list of concerns and suggested changes that signaled his willingness to seriously consider legalization, recommending the legislature address them in an upcoming special session that starts June 21st.
Following a press conference on Wednesday, May 24th, Scott sent the legislature a letter further outlining the changes he would like to see. "With a libertarian streak in me," Scott wrote, "I believe that what adults do behind closed doors and on private property is their choice, so long as it does not negatively impact the health and safety of others, especially children." In his letter, the governor asked that penalties for the sale of marijuana to minors be increased, especially on school grounds, as well as penalties for driving while impaired, and for smoking marijuana in a vehicle with a minor present. He also introduced the idea of creating regional highway safety standards and impairment tests. S. 22 would have established a commission tasked with studying and proposing a plan for implementing a tax-and-regulate system for retail marijuana; the governor asked that the commission be expanded to include representatives from the Vermont Departments of Public Safety, Health and Taxation, as well as substance abuse prevention professionals. He also recommended that the commission's timeline be lengthened to a year.
Scott's veto did not come as a surprise to many of the bill's advocates, but the signal that he would back a path forward for legalization did. "It's nothing outlandish," says Representative Tom Burditt, a House Republican who co-sponsored the bill with Democrat Maxine Grad, speaking of Scott's proposed changes. "It's not a bill killer, we can deal with the changes he wanted."
The real question now is whether or not the bill will pass this year, or if it will have to wait until the Vermont legislature reconvenes in January 2018. It all comes down politics and procedure. A two-day veto session had already been planned to begin June 21st, in order to pass a final state budget. What's unclear is how a new bill could pass through both chambers during the session, and whether Scott's concerns could be adequately addressed in that timeframe.
Jay Diaz, a staff attorney with the ACLU of Vermont, believes that the veto was actually a step toward legalization. "We're encouraged by what the governor has said. He hasn't said no to marijuana legalization," Diaz says. "He's said, 'Let's tweak this bill in a few ways and then move forward because it's inevitable, legalization as well as regulation is coming.' So I take him at his word."
Maxine Grad, Burditt's co-sponsor on the bill and chair of the House Judiciary Committee, is less sanguine about the governor's method of amending the bill. "I'm disappointed the governor vetoed it," she says. "I think he could have let it go without a signature – it would have been a win-win."
Crafting a new bill that could be sent to the governor for approval following the June veto session would necessitate a process called rule suspension, requiring a three-quarters majority vote in each chamber. The original bill passed narrowly in the House, just 79 to 66, and House Republicans have not been enthusiastic about revisiting the issue in June, so it doesn't seem likely to pass before 2018. "It's only a two-day veto session, and without rule suspension I don't think it could pass," Grad said.
House minority leader Donald Turner, head of the Republican caucus, expressed doubt that his colleagues will vote for rule suspension. "I don't know that 50 people are going to change their mind on pot," he says.
Pro-legalization lawmakers are calling for the governor to work with House Republicans to make rule suspension possible, but Scott has remained non-committal. "Gov. Scott has said he's not going to twist arms on either side of this issue," Rebecca Kelley, the governor's communications director, wrote in an email to Rolling Stone, though members of Scott's staff met with legalization policy experts and advocates on Friday, signalling that they're serious about moving forward with legalization.
House Democrat Sam Young, a major supporter of legalization, says that he has been in contact with other pro-legalization House members to talk strategy, with the assumption that they will not receive rule suspension. "It takes a total of three days and we're only scheduled for two," he says of the process of drafting a new bill, without the fast-tracking rule suspension would allow.
The governor's office has suggested that the legislature could extend the session to get Young and his colleagues the time they need to craft a new bill, but lawmakers on both sides of the debate oppose that idea on the grounds that it wastes taxpayer dollars. "I'd be very disappointed if we extended to deal with marijuana when we have a whole other session ahead of us," Turner says, referring to the upcoming January 2018 session. "It costs taxpayers money. We've been talking about reining in spending and yet we're going to extend the session because we want to pass marijuana?"
Others, even in the pro-legalization camp, also question the urgency of passing the bill now. "The date on it is 2018 anyway, so at this point it's really nothing gained, nothing lost," Burditt, the House co-sponsor, says. "A lot of people are getting pretty upset about it, but they look at it as being potentially dead, or dead, and it's really not at this point."
A delay until January is likely to be a benefit to any new bill, says Anne Donahue, a House Republican who voted no. "To me it makes absolutely no sense to rush to make changes for voting on next month," she says. "It wouldn't be going into effect for another year anyway. For one thing it's a set-up to have the governor veto it again."
The governor also has the power to create the commission to study a tax-and-regulate market for marijuana by executive order, so even that provision may not fall behind the current timeline, should the veto session fail to produce and pass a new bill – though as of now, the Governor's office still sees this as a "hypothetical" as they are "confident there will be a compromise bill."
Some, like Young, believe that if it doesn't pass now, momentum would be lost and the opportunity to legalize marijuana will hit substantial delays. "I think 79 was probably the high water mark," he says, referring to the number of pro-legalization votes that passed the legalization bill after contentious debate on the House floor.
Grad points out that in Vermont, all legislators, including the governor, run for office every two years, meaning that if legislation does not pass in June, lawmakers will be in the position of voting for a controversial law in an election year. "The vote was so tight," she says. "Whether there would be the political appetite to take it up again in January? I could see that going both ways."
While there are staunch opponents to legalization – like Republican representative Doug Gage who has said that "decriminalization is far enough" – some lawmakers who voted against the bill were heartened by the governor's proposed changes, echoing Scott's statement in last week's press conference that "I have to make sure that we get it right."
Donahue voted no, not because she is fundamentally opposed to legalization, but because she believes the state is moving too quickly. She sees pot as fundamentally different than alcohol and tobacco, with unique risks that must be taken into consideration. "The frame of mind that normalizes it to the degree of saying this is no different, and all of our statutes and standards should be no different, from how we think about alcohol and or tobacco, I do have a problem with that, I don't think it's equivalent," she says. She went on to explain that she saw alcohol and tobacco laws as flawed in and of themselves, and that it was an ethical imperative to make sure that any new laws governing the use of marijuana must meet a much higher standard.
While Donahue and Governor Scott focus on crafting the right kind of bill, the Vermont ACLU argues that current marijuana laws in the state are already getting it very wrong, especially as far as non-white citizens are concerned. Diaz points out that since decriminalization, Vermonters have been charged with more than 5,000 civil offenses for marijuana use, resulting in more than $1 million in fines, and that those charges are not evenly distributed. "What we've seen is that driving while black or brown is a pretext to be stopped on Vermont roads," he said. An ACLU and Human Rights Watch report from last year found that racial disparities in drug arrests were more prevalent in Vermont than anywhere else in country except Iowa and Montana, even though African-Americans and whites use drugs at the same rates.
These deeper issues of criminal justice reform, public health and safety and individual liberty weigh heavily on both sides of the debate, informing that imperative to "get it right." Scott's self-identified libertarian streak is echoed around the state, and many opponents of legalization were quick to say that they had no problem with what other adults do in the privacy of their own homes. With so many almost moments for bills similar to S. 22, the general feeling seems to be that it's not a question of if, but when.
Whether or not that happens next month is now largely up to House Republicans and the governor, but advocates are not giving up hope. "I think it could be done," says Sam Young. "Where there's a will there's a way."