In New Hampshire, the biggest perennial obstacle to marijuana legalization has been the state Senate. (Carol Yepes | Getty Images)
The bills have bipartisan support. Their sponsors include left-leaning Democrats and libertarian Republicans. One has been advanced by a Republican chairman of an influential committee; another by the House Democratic leader himself.
But as New Hampshire lawmakers put forward the latest round of marijuana legalization bills for next year’s session, the outcomes appear all but predetermined. The bills will move from a House committee to the House floor, where they’ll likely get a bipartisan majority. They’ll cross to the Senate, and likely get voted down. If they move forward to Gov. Chris Sununu’s desk, they will likely face a veto.
It’s been a familiar progression in Concord for years, and one that has baffled marijuana proponents in New Hampshire’s neighboring states. Maine, Massachusetts, and Vermont have legalized the substance in recent years.
“I think a lot of us are scratching our heads over how New Hampshire’s so behind Vermont, Massachusetts, and Maine on this issue, and it’s the so-called ‘Live Free or Die’ state,” said David Boyer, a Maine consultant who helped lead his state’s legalization referendum campaign in 2016.
In the coming year, Granite State legalization supporters believe they may finally be able to break through the cycle, with a new bill and a new approach. Opponents, including Sununu, have cited the state’s opioid crisis and the COVID-19 pandemic and urged restraint.
But while both sides gear up for the next fight, cannabis proponents in Maine and Vermont say efforts in those states provide unique road maps forward.
The long game in Maine
The marijuana legalization process in Maine started at the local level. Efforts began in Portland first, when 67 percent of the city voted to legalize in 2013. South Portland, a separate city, voted in favor of legalization the following year.
Then advocates took the campaign to the state at large.
In Maine, residents can enact legislation through ballot initiative – provided they collect signatures equaling 10 percent of the votes cast for governor. In 2016, during the governorship of legalization opponent Paul LePage, a statewide referendum seemed a much more appealing route.
“We were able to force the issue … let the constituents decide, let the voters decide,” Boyer said.
For campaigners, a direct referendum can have benefits over a legislative process, Boyer said. It can be easier to bring people into supporting a campaign when the question is statewide.
But using a ballot initiative carries its own challenges. Among them: Getting the advocates to agree on what the language should say. In Maine, dueling advocacy groups spent months ahead of the referendum deciding how wide or narrow the language should be and trying to court signatures for separate efforts – a process Boyer called the “pot primary.”
In the end, a slight edge in signature collection allowed one group to pull ahead and gather supporters behind one proposed initiative.
Despite public support, cannabis had been viewed with some skepticism by Maine lawmakers for years. Boyer attributed that to the primary process, and lawmakers tying their position to their party’s base. The referendum process helped disrupt some lawmakers’ entrenched opposition, Boyer said.
“I think that’s one of the beauties of the initiative process: It kind of forced the politicians to abandon their stance once their constituents (weighed in). Like, ‘Oh, my city voted two-thirds for it; how could I vote against it?’”
That electoral feedback helped marijuana advocates win future legislative fights over how to keep crafting the state’s cannabis laws, Boyer said.
New Hampshire doesn’t have a referendum process – though one resolution next year by House Democratic Leader Renny Cushing would put the matter to voters as part of a constitutional amendment.
But Boyer said that even without the ability to put the matter on the ballot, advocates in the Granite State could learn from Maine’s statewide campaign. Connecting lawmakers with constituents who could tell stories about the benefits of legalization could also make the difference, he said.
“Cannabis would be legal in New Hampshire – and it would have been legal probably four or five years ago when Maine did it – if there was a ballot initiative process,” he said.
Flexibility in Vermont
Vermont followed a more gradual path. It was one of the first states to legalize a medical marijuana program in 2004. Gov. Peter Shumlin passed a decriminalization bill in 2013. And by 2015, many of the state’s residents appeared ready for full legalization.
But unlike in Maine, Vermont could not take the matter directly to voters. And the Legislature was not ready to pass legalization in 2015. In 2016, the state Senate passed a bill, only to see it voted down by the House.
Faced with those political barriers, cannabis advocates worked slowly. Unlike in New Hampshire, Vermont bills do not automatically leave House and Senate policy committees for a vote on the chamber floor; they must receive a vote to move forward. That meant advocates had to work with the committee members – often for months – to ensure that the bills would even advance.
Republican Gov. Phil Scott, who was first elected in 2016, provided opposition, too – though he wasn’t absolute. “I’m not saying never,” he said during his first gubernatorial campaign. “I’m saying … the timing’s not right. It’s not now.”
Scott’s position was markedly different from Sununu’s in 2018, when the New Hampshire governor said he would “absolutely” veto cannabis legalization legislation “regardless of what the language looks like.” And it gave Vermont advocates some flexibility to work with down the road.
That flexibility would quickly prove useful. In 2017, months into Scott’s first term, Vermont’s Legislature sent the governor a cannabis legalization bill. He vetoed it, but after a surge of callers protested Scott’s decision, his opposition didn’t last long. Within weeks of the veto, Scott had called a meeting with marijuana legalization proponents to hash out a bill that the governor could let pass, recalled Dave Silberman, a leading marijuana legalization advocate in the state.
After hammering out the details, Scott allowed a slightly amended version of the bill to pass into law in 2018 without his signature.
Exactly how Vermont advanced its legalization bill while New Hampshire’s stagnated is complicated. Silberman says the answer is partly due to the two states’ political environments.
“Vermont has a different advantage in that New Hampshire is a lot more conservative,” he said. “Even though we have a Republican governor, you know, we’re a center-left state.”
But Vermont advocates were also careful to pace themselves, Silberman said. Rather than pursue a comprehensive bill that would land all of marijuana proponents’ wishlist items, the advocates sought a smaller scope, legalizing possession of up to one ounce of cannabis and up to two plants in the home.
Silberman said that incremental pace helped put legalization advocates in a good position after Scott’s veto, allowing them to tweak the bill to the governor’s liking without drastic revisions.
“I think a lot of leftists scoff at incrementalism, but I think it works,” Silberman said.
And the state has followed that track: Two years after the state passed its legalization bill, Scott allowed a second bill for retail sales of marijuana by October 2022 to pass without his signature.
New Hampshire’s path
New Hampshire legalization supporters don’t have the same political tools or environment as Maine and Vermont. Next year, though, they’re trying a new approach.
A bill proposed by Rep. Daryl Abbas, a Salem Republican and the chairman of the House Criminal Justice and Public Safety Committee, would allow individuals over 21 to legally possess cannabis, transfer it to others, and consume it in private – but not grow plants in the home.
The bill would allow the state of New Hampshire to set up retail cannabis stores similar to liquor stores; profits from those stores would go to both substance misuse prevention programs and toward reducing the Statewide Education Property Tax.
Abbas was not available late last week for comment. But a co-sponsor of the bill, Rep. Casey Conley, a Dover Democrat, said the bill was intended to win over skeptics on the fence.
“What it’s trying to do is just to try to give a real carrot approach instead of a stick,” Conley said. “This is the benefit. We could raise a whole bunch of money and potentially cut property taxes.”
Advocating for marijuana legalization in New Hampshire has long been a game of devising which lawmakers are opposed to it on principle and which are open to it but hung up on details, Conley said. “You address a lot of concerns that might have been raised by people who are amenable to supporting the legalization program, but didn’t like the particulars of prior legislation,” he said.
In New Hampshire, the biggest perennial obstacle has been the state Senate, which has consistently voted down legalization bills under Democratic and Republican control, Conley said. The latest bill is designed to try to speak to some of that hesitancy. Still, Conley admits the latest version isn’t his or other Democrats’ preferred approach.
“The key question for advocates of legalization is: Do we want to legalize cannabis this year even if the bill isn’t perfect, or what we would want ideally, or do we oppose this and hope for something better next year?” he said. “My feeling is, we have no idea what the House or Senate is going to look like next year. If we have a viable option to legalize cannabis and end the prohibition in New Hampshire, then I am going to support it.”
To state Sen. Bob Giuda, a Warren Republican who helped shepherd the chamber’s anti-legalization vote in 2019, legalization advocates should not get too hopeful.
“There’s a myth out there that, hey, everybody wants this. That’s a myth,” Giuda said. “This does no good for our kids and in the midst of a mental health crisis and COVID, which oh, by the way, does produce some respiratory problems.”
Other stakeholders have a more nuanced view. The policy group New Futures, a nonprofit that advocates for health care in the state, has opposed marijuana legalization efforts in the past. But the group isn’t opposed to all efforts entirely, said Kate Frey, the organization’s vice president of advocacy.
Instead, New Futures evaluates whether bills achieve four objectives, Frey said. The bill must protect children by prohibiting marketing and limiting potency. It must promote social justice by expunging past convictions, and protect public health by including health warnings and involving public health authorities. And it must direct any profits toward substance misuse prevention programs.
“A lot of our principles actually have come from states like California, for example … because what they found is none of these public health principles were front and center when the statute was created in California, and so now they’re having to go back and try to fix things,” Frey said. “And that’s harder once the horse is out of the barn.”
So far, no bill advanced in the Legislature has achieved those aims, Frey said. Frey and New Futures had not seen the latest draft legislation as of Friday.
Abbas’s bill will be introduced to the full House and assigned a committee in early January. But Giuda argues this year won’t be any different than any other.
“We have a Republican Legislature,” he said. “And certainly a Republican Senate, no matter what the House does. I think we can hold in the Senate. I don’t see the support for it.”
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