Sunday, April 17, 2022

Just in Time for Easter, Marijuana Legislation is Resurrected in Delaware

 On March 10th of this year, House Bill 305, a bill to legalize marijuana, failed in the General Assembly.  Contrary to the conventional wisdom, many Libertarians were glad to see this legislation go down in flames (or if you prefer, up in smoke).  Sure, it legalized recreational cannabis, but it also created a labyrinth of taxation, regulation, compliance obstacles and licensing carve outs for favored Democratic social justice constituencies.  You could forget about the mom and pop pot businesses and a new cash crop for local farmers.  The numbers of growers, manufacturers and retailers was to be strictly regulated.  Licenses were to be limited and expensive.  This bill was written with the Corporate Cannabis Industry in mind.  It was a crony capitalist's wet dream.  And it didn't allow for home grow either.  The State's alcohol regulations allow home hobbyists to brew beer and make wine for personal consumption.  Why no similar concessions to the casual cannabis enthusiast with some potted plants (pun intended) in his basement under a grow light?  Good riddance to a bad bill.  We want legalized weed, but not at any price.  The next time, we'll get a better bill, and as it turns out, the next time might be now.

Several days ago I saw that Delaware Representative Ed Osienski (D-Newark), the sponsor of the failed HB 305, had introduced two new bills to try again to legalize marijuana in the state.  One bill, (HB 371) is short and sweet; just over two pages.  It legalizes possession for recreational use, in private, of under an ounce, by those 21 and over, if acquired without remuneration.  I know there were an awful lot of clauses in that last sentence, but as laws go, what could be simpler than that?  Don't ask how one is presumed to have obtained said marijuana if you can't buy it or grow it.  It's like they're saying you can privately smoke all the free marijuana you can get your hands on as long as you get it in less than one ounce quantities.  The new bill fails to address how to find those generous  philanthropists who are presumably going to be giving away all that free marijuana.   This minor omission  reminds me of the South Park story of the underpants gnomes and their mystery plan for making profit.  

But there is more to the story.  Accompanying HB 371, the legalization bill, is HB 372, the taxation and regulation bill.  And where HB 371 is just over two pages and relatively easy for a layperson to understand, HB 372 is almost 50 pages long and will put even the average insomniac to sleep after the first few paragraphs.  I'm sure there are no hidden surprises or corporate giveaways anywhere in those fifty or so pages of legislative legal jargon.  In describing the new legislation, the State News quoted Representative Osienski as follows:

“I think the whole idea of breaking it up into two is allowing those that have concerns about legalization to have the opportunity to vote no on it, but then have the opportunity to vote yes on regulation,”

When I first read this, I was furious.  I thought to myself, "How hypocritical can these politicians get?  The original bill failed, and in its resurrected form they are more concerned with cementing in place the horrible taxation and the regulation parts and to hell with the personal liberty aspect of legalization."  I was reminded of the Lily Tomlin quote.  "No matter how cynical I get, I just can't keep up!" I was really pissed, but it turns out, I was wrong. And wrong in a good way.

 Every once in a while something happens to remind me that I'm not as smart as I think I am.  This was one of those times.  It turns out that tax related bills have a higher threshold for passage than other routine pieces of legislation.  Regular bills require a simple majority, but tax bills require a 3/5 vote in order to pass.  The original HB 305 which contained both legalization and taxation failed despite a vote of 23 in favor and 14 opposed because this bill required 25 votes in order to pass. No Republicans supported the bill, and four Representatives, two Republicans and two Democrats, did not vote.  It missed passage by only two votes.  Close, but no cigar.  

So what happens now?  Well, legalization alone as defined in HB 371 only requires a simple majority to pass the House.  There are already enough co-sponsors of the bill to insure that happens.  Of course, we don't know how the bill will fare in the Senate, and the Governor has expressed opposition to marijuana legalization in the past. And overriding a veto would require a 3/5 vote of both chambers, so we would be right back where we started.  Still, I wonder if the Representatives who did not vote last time could be persuaded to support the new legalization bill.  Perhaps a few Republicans could even be persuaded to do the same if they could successfully amend HB 372 to reduce the taxation aspects of that legislation.  Representative Michael Smith (R-Newark)  had suggested he might have supported the old bill had the Democrats been willing to agree to certain amendments that would have allowed past felony convictions for certain tax or drug related crimes to be considered when approving licenses.  On the face of it, those sound like reasonable amendments.  I'm not sure why Democrats in the House let HB 305 fail last March rather than adopt those changes.  Maybe there is more to the story.  I'd like to know what happened in the smoke filled room back then, because that drama is about to be replayed, and I'd like to see a different outcome this time, hopefully resulting in the passage of cannabis legalization.

 So what should we advocate for going forward?  Well, obviously we want to support legislators in the House who are already supporting HB 371 and encourage the others, both Republicans and Democrats, to join them to form a veto proof majority.  And of course, we need to urge the members of the Senate to do likewise.  If we could accomplish that, I'd be happy to see HB 372 simply fail.  Wouldn't that be a delicious bit of irony.  Legislators try to manipulate the parliamentary system to secure more tax revenue and service special interests and accidentally succeed in advancing personal liberty without scoring any of the graft.  It's almost like a Libertarian fairy tale come true.  But let's be honest.  That's not going to happen.  If HB 371 passed and HB 372 failed, the Governor would simply veto HB 371, and the General Assembly would find an excuse not to override.  

It looks like we might be pretty close to a win in Delaware for cannabis legalization. How far can we push legislators to improve these bills without the whole enterprise failing again like it did last time?  Well, the first thing to say is, if the bills aren't improved, then I for one would just as soon see them fail again.  Now is not the time to be timid.  Time is on our side.  Legalization will eventually become a reality.  There is no need to sell out to Corporate Cannabis when we are this close.  Let them want legalization more than we do.  We'll get a better bill with that mindset, even if it takes a little longer. 

So, if we aren't likely to get HB 371 without HB 372, what do we want to change?  First and foremost, I would say, add home grow.  That has got to be top of the list from the individual freedom point of view.  If it's good enough for alcohol, it's good enough for cannabis.  I can't think of any excuse but a lame one for refusing to add that.  I will never be convinced that such an omission wasn't the result of  industry lobbying.  Limit quantities if you must, but under no circumstances should we accept a bill that handcuffs aficionados of the noble herb to a product marketed by Phillip Morris or Pfizer Pharmaceuticals.  After that, legislators should be pushed to increase the number of licenses issued to grow, manufacture and sell, and to lower the costs of those licenses along with the rate of taxation applied. How can the State expect to eliminate the black market for cannabis if their taxation and regulatory structure prices the legal stuff out of the market?  And ditch the special carve outs for licensing Democrats' favored special interest constituencies.  With an abundance of licenses, they shouldn't be needed anyway.  These new laws should provide a windfall to Delaware farmers and entrepreneurs, not to the State and large corporate interests.  If Republicans can't stop legalization, and they refuse to support it, let them at least apply a more capitalist friendly structure to the regulation.  With a little bit of effort, maybe we can shame them into following those illusory free market principles they claim to believe in.  Or is that another fairy tale?  

Delaware legislators are giving Cannabis legalization a Mulligan this year.  Let's hope they don't screw it up this time.