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Crash and Burn in Burlington: How Legalization Failed in Vermont

Six weeks ago, cannabis legalization seemed destined to pass in Vermont. With the backing of Gov. Peter Shumlin, the state Senate approved a legalization bill and sent it on to the House. There it slowed, then stalled, and then finally died. Earlier this week the House overwhelmingly voted down the proposal.

What happened?

Matt Simon, political director of the Marijuana Policy Project, paused in the hallway of the Vermont Statehouse last week to consider the difficulty of passing cannabis legalization in New England.

“Getting policy through two houses of the Legislature, there’s always something that can go wrong,” he said. “All it takes is one committee to throw it off the rails.”

While Simon has been trying to pass a marijuana legalization bill through the House and Senate in Burlington, fellow activists in Maine and Massachusetts have been placing legalization measures on November ballot initiatives.

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Without question, Simon said, his colleagues have the easier job. With a ballot initiative, “you’re asking a yes or no question,” he said. In the state Legislature, by contrast, there are a million different ways to sidetrack a bill.

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In his State of the State address back in January, Gov. Peter Shumlin, a Democrat who is retiring next year, listed legalization as a top legislative priority. If passed, Vermont’s legalize-and-regulate system would be the first to be adopted through the legislative process. It would also be one of Shumlin’s lasting legacies.

The four legal states and the District of Columbia all legalized through voter initiatives. Vermont law has no provision for citizen-led statewide measures. No matter, said Shumlin. Legalizing cannabis through legislation, he argued, would be better.

“I will work with you to craft the right bill that thoughtfully and carefully eliminates the era of prohibition that is currently failing us so miserably,” Shumlin told legislators.

Vermont Governor Peter Shumin

Vermont Gov. Peter Shumlin

That he did. The governor enlisted the support of Senate Judiciary Committee Chair Dick Sears. The two had served together in the Senate for 14 years, buddied up at Boston Red Sox games, and had long gone to bat for each other.

Sears crafted a bill that called for a 25-percent tax on marijuana sales at a limited number of state-permitted stores. It would legalize possession of up to an ounce, but wouldn’t allow for home growing.

The bill cruised through the Senate. In late February, Sears wrangled a 17–12 vote that sent the bill to the House. There — where Shumlin had far fewer friends — the path grew rougher.

March: Rough going in the House

The 11-member House Judiciary Committee — seven Democrats and four Republicans — greeted the bill with something akin to dread.

“I’m not clear about why we are doing this,” committee Chair Maxine Grad said. “I have a lot of questions.”

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Democratic House Speaker Shap Smith, a shrewd lawyer in his eighth year at the helm of the 150-member chamber, declared himself a legalization supporter. But he questioned whether issues such as highway safety could be sufficiently resolved.

“It just doesn’t feel like it’s ready to go all the way through,” Smith said.

Despite Smith’s reluctance, many thought the politically ambitious Democrat — Smith is a potential candidate for lieutenant governor — would find a way to pass it this session. Smith has earned a reputation as a leader who can muscle through tough legislation when he wants to. In 2009, he mustered just enough votes to make Vermont the first state in the nation to legalize same-sex marriage through legislation.

“This is different,” Smith said of marijuana.

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Legalization isn’t a simple yes or no question, Smith said. He saw it more as a series of questions. Should home growing be allowed? Who should be allowed to sell? And how much? And where? “There was never any jelling around a particular proposal,” he said, reflecting on the defeat of legalization earlier this week.

April: Hearing crickets from constituents

Those unresolved questions weren’t the only problems. House Majority Leader Sarah Copeland Hanzas said legislators never heard a groundswell of support for legalization from their constituents. Without that, she said, interest among most members for tackling the topic was lukewarm at best.

Kevin Ellis, a longtime statehouse lobbyist who was working to defeat the bill, said supporters never laid the groundwork to garner public support for legalization. “You’ve got to educate people,” he said. “People aren’t ready.”

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Simon speculated that the Senate’s decision to not allow home growing — over fears that home gardens would lead to black market sales — doomed the effort. Many longtime legalization advocates view the issue through the lens of individual freedom and liberty. The idea that licensed, commercialized farmers would be able to grow while backyard plots would be outlawed struck them as offensive and nonsensical. It undercut the entire reason for legalization. As MPP’s Matt Simon put it, “It diminished the enthusiasm of supporters and created opposition.”

House members did not hear their phones ringing in support of legalization.

At the same time, the opioid crisis emerged as a reason for opponents to kill the measure. “The shadow of the heroin epidemic is something that people think about when they think about the legalization, and they ask themselves, ‘Are we sending the right message about legalization?’” House Speaker Smith told the New York Times. “I think in the public’s mind, it’s making passage of this bill more difficult.”

Without grassroots enthusiasm, and with growing concerns — warranted or not — about legalization and the opioid crisis, the bill that emerged from the Senate in robust health began to seriously falter.

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Three House committees, including Grad’s, declined to embrace legalization. Weeks passed. The bill stalled completely. It looked as though the full House might never vote on the issue at all.

Finally, in late April, Sears forced the issue. He attached the Senate bill to another piece of legislation.

Shap Smith didn’t become House Speaker by failing math, especially when it comes to counting votes. He warned legalization advocates that an up-or-down vote in the House would fail, and that failure could set back the movement. “What I’m worried about is if we have a vote this year and it’s negative, that people next year will say, ‘Why bother?’” he said.

Some legalization advocates agreed. Others pushed for a vote. They got it on Tuesday.

Members of Vermont's House Judiciary Committee reviewing the cannabis legalization measure

Members of the Senate Judiciary Committee review the legalization bill.

Rep. Chris Pearson, the Progressive Party caucus leader, led the way on what would become a seven-hour debate. “Why does the Legislature feel comfortable sitting at dinner, enjoying a glass of wine, and telling us that we may not enjoy cannabis?” he asked. “I think people are ready to take this conversation out of the shadows.”

Grad countered that the Senate legalization bill would open the door for a large-scale, commercial marijuana market. That, she said, is “not the Vermont way.”

As Smith predicted, legalization failed. When the votes were counted, the House had dealt it a resounding 121–28 defeat.

An alternative proposal — to decriminalize home growing of up to two plants — fared better but still failed, 77–70. By day’s end, the House managed to vote only for the creation of a commission to prepare the state for eventual legalization.

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Eventually even that failed. At the end of the week, the Senate scuttled the commission. A session that began with a serious chance to legalize and regulate cannabis in Vermont ended with no legalization, no expansion of decriminalization, and not even a commission to study the issue. Lawmakers are expected to adjourn for the year on Saturday.

“Fuck the commission,” Sears said Thursday night. “The commission was unnecessary.”

MPP’s Matt Simon strained to mask his disappointment earlier this week. “This obviously is not what we were asking for,” he said.

Simon insisted, though, that the long, tortured ride had been worthwhile. “I think we made a lot of progress this session,” he said. “People recognize prohibition has failed. It may be that they had to have this first awkward debate.”

Vermont’s next legislative session is scheduled to open on Wednesday, Jan. 3, 2017. There will be a new governor, a new House speaker, and a new Senate leader.

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Image Source: Terri Hallenbeck