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Cannabis — or Can’t? With Time Running Short, House Struggles With Full Legalization


Published April 24, 2019 at 10:00 a.m.
Updated April 30, 2019 at 8:03 p.m.

Fair Game is Seven Days’ weekly political column.
  • Luke Eastman

Just about everyone around the Vermont Statehouse agrees on one thing: Legalization of cannabis sales is inevitable. In fact, there's broad agreement that it's the best option.

"We've got the worst of both worlds," said Rep. George Till (D-Jericho), who opposed the 2018 law that legalized personal cultivation and possession of cannabis. In his view, that measure increased availability in an uncontrolled environment. "We have no funds for education, prevention, law enforcement and treatment," he said, bemoaning the lack of revenue from a taxed and regulated marketplace that could have helped address Vermont's substance abuse crisis.

"Most of us agree that what we passed last year made the situation worse," said Rep. Rob LaClair (R-Barre Town), deputy minority leader, speaking of his 43-member Republican caucus. Referring to Till's comment, LaClair said, "We are certainly on the same page."

Republican Gov. Phil Scott remains a legalization skeptic, but the door seems to be open. "He's not opposed to a regulatory market but believes Vermont should take the time to get it right," spokesperson Rebecca Kelley wrote in an email.

On March 1, the state Senate approved S.54, a bill to create a state-regulated marketplace for cannabis products. The measure would establish a Cannabis Control Board with authority to collect fees, enforce regulations, and issue licenses for growers, producers, wholesalers and retailers. It was referred to the House Government Operations Committee 12 days later — and it's been there ever since. With legislative leaders aiming to adjourn on May 18, time is in short supply.

"We have a window, but it's a tight one," said Rep. Sam Young (D-Glover), an advocate of tax-and-regulate.

A number of key bills are awaiting action in the session's closing weeks. This is the time when a push from leadership can make a big difference.

"We are working really hard to get it through," said House Majority Leader Jill Krowinski (D-Burlington). "We're trying to get it done this year, but we can't make any promises."

That's not good enough for cannabis advocates.

"It's feeling like we've had to drag the governor and House leadership kicking and screaming into this," said Eli Harrington, cofounder of Heady Vermont, a nonprofit that advocates for legalization and development of cannabis entrepreneurship.

Lt. Gov. David Zuckerman, a longtime advocate for legalization, shares that view. "[House] leadership has historically been cool to tax-and-regulate. They're probably more accepting now, but I don't see them actively propelling the issue." 

Seems a fair interpretation of leadership's stance. "I'm making sure we're dotting the i's and crossing the t's," Krowinski said. "I want to make sure we give everyone the opportunity to give input and get the most possible votes on the bill."

That's noble, but at some point — very soon — the pace will have to pick up. Many steps remain.

Last week, members of the gov ops committee conducted a painstaking review of the 68-page bill. Chair Sarah Copeland Hanzas (D-Bradford) plans to vote it out by the end of this week. Since the bill contains tax and spending plans, it must go through the House Ways & Means and Appropriations committees. Then, in the remaining three weeks of the session, it would face a House vote, after which the House and Senate would have to iron out any differences before it landed on Scott's desk.

It's doable, given a healthy dose of active propulsion. But if there are any delays, the clock may well run out.

On the other hand, a lot of hard work is being done. Top lawmakers have been meeting regularly with administration officials to craft a version of tax-and-regulate acceptable to Scott. If a deal can be struck, the bill could advance quickly with tri-partisan support.

The governor has set four conditions. First, and most contentious, is roadside testing for THC, the psychoactive ingredient in cannabis. Scott favors a saliva test. Some legalization advocates see privacy issues in a test that provides DNA information to police. Others point out that saliva testing reveals the presence of THC but does not measure impairment.

"If we want to boost roadside enforcement, drug recognition experts are more effective," said Copeland Hanzas. DREs are police officers trained in recognizing impairment from a variety of substances, not just alcohol or THC.

Scott is cool to the idea. "I'm not sure DREs alone would do it," he said at a press conference last Thursday. "I think we need some sort of saliva test."

The governor also wants to designate a portion of cannabis taxes to drug education and prevention and allow local communities to stay out of the cannabis market. Scott and his chief counsel, Jaye Pershing Johnson, have also raised a separation-of-powers issue: The legislature wants the Cannabis Control Board to be independent. Scott insists that the governor must have authority over the board. Neither the legislature's legal staff nor Attorney General T.J. Donovan share that view, but Scott is sticking with it. "We need to protect our turf," he said last Thursday.

Democrats are amenable to boosting education and prevention funding. Differences remain on saliva testing and the other two points. And different issues create divisions along unexpected lines, which makes coalition-building a tougher task. For example, some rural lawmakers are strongly vested in local control. Some are dead set on roadside saliva testing, while others see it as an infringement on personal liberty. A possible compromise is to allow saliva testing only with a warrant — but others believe that defeats the purpose of roadside testing.

It's not just a matter of threading a needle; it's threading multiple needles. But all parties are engaged in the process. And the longer they engage, the more invested they become. That's a positive marker.

There is plenty of reason for doubt. And in the first year of a biennium, punting the bill to the next year is always an option. But it's clear that nobody likes the status quo. "There is a robust illicit market right now," said Laura Subin, director of the Vermont Coalition to Regulate Marijuana. "There is no testing for potency, there are no ID checks, and no one can be certain exactly what they're buying."

Since most everyone seems to agree about that, it makes complete sense to adopt tax-and-regulate, which would take two years to fully implement. But politics and sense don't always coexist.

Raising the Barr

Vermont's three members of Congress were scattered to the winds last week when the redacted version of special counsel Robert Mueller's report became public. Sen. Bernie Sanders (I-Vt.) was on the campaign trail; Rep. Peter Welch (D-Vt.) and Sen. Patrick Leahy (D-Vt.) were out of the country on official trips. Their initial reactions came in written statements.

As of this writing, Leahy was on his way home from a visit to South Korea and Vietnam. Sanders has been focused on campaigning for president. But we did manage to get Welch on the phone Monday after he returned from the Colombia-Venezuela border. He has repeatedly stated that he would wait for Mueller's report on Russian interference in the 2016 election before taking a stand on whether to seek the impeachment of President Donald Trump or pursue some other congressional action.

Now that the report, substantially redacted by Attorney General William Barr, is here?

"It's totally appalling," Welch said. "Mueller lays out in detail a consistent pattern of Trump trying to derail the investigation."

On the issue of collusion between Russia and the Trump campaign, Welch said that Russian President Vladimir Putin "had his own reasons to interfere, and Trump was quite willing to be the beneficiary of that. I don't think there's another example in U.S. history where a foreign power interfered in an American election. The notion that a candidate welcomed it instead of reporting it is appalling."

Welch is determined that Congress has "got to follow up" by obtaining the unredacted Mueller report, interviewing Mueller and other key figures under oath, and pursuing the investigation wherever it leads.

Is he ready to call for an impeachment inquiry? Not quite.

"The guardrails of our democracy are down," Welch said. "To get them back up, we need more than Congress. We need repudiation by the voters."

In that case, doesn't Congress have a responsibility to fully investigate Trump, his campaign and his administration? Yes, said Welch: "Our duty is to get as much information as possible so everyone can form their own conclusions."

Still, there's that pesky U.S. Constitution, which grants Congress the sole authority to judge a president through the impeachment process.

So far, Leahy's only reaction has been outlined in a written statement issued last Thursday, the same day that Barr released the Mueller report. Leahy said the report "went beyond everything that we had known" about Trump's misdeeds. "Now it's time for Congress to do our job." Leahy did not offer specifics beyond demanding the full, unredacted report and Mueller's testimony under oath.

Sanders' office declined our requests for an interview, citing the senator's tight schedule. But he did address the issue in a Monday town hall staged by CNN. When asked about the Mueller report and impeachment, Sanders made a case similar to Welch's — with a crucial difference.

"Congress has to take a hard look, hard investigation, get to the truth," Sanders said on CNN.

But it should not pursue impeachment.

"The most important thing to me is to see Donald Trump not reelected," Sanders said. "If we're going into the election, and all Congress is talking about is Trump, Trump, Trump, Mueller, Mueller, Mueller, we're not talking about ... all of the issues that concern ordinary Americans."

Couple things. First, Sanders is punching a straw man. There's a middle ground between abandoning impeachment and "Trump, Trump, Trump, Mueller, Mueller, Mueller."

And second, congressional duty is not optional. "There is no 'political inconvenience' exception to the United States Constitution," said Sanders' fellow presidential hopeful Sen. Elizabeth Warren (D-Mass.) in a CNN town hall immediately preceding the Sanders event.

Welch, to his credit, sees the need for congressional inquiry as well as election results. Sanders' sole expressed priority is the 2020 election. As Warren pointed out, each member of Congress swore an oath to protect the Constitution, Sanders included.

Mueller stopped short of indicting Trump or even directly accusing him of breaking the law — not because he lacked evidence, but because he deferred to Congress on prosecuting a sitting president. Judging by Sanders' Monday statement, Vermont's junior senator would prefer not to discharge his constitutional obligation. He's satisfied to continue his campaign for the presidency.

The original print version of this article was headlined "Cannabis — or Can't?"