SB 442: Fruit of a poisonous tree

With the completion of the poll of the Legislature on whether to override the governor’s veto of Senate Bill 442, I want to explain my consistent opposition to the bill, including voting against overriding the veto. The bill would have incorporated $16 million in annual expenditures for county roads into the existing allocations of marijuana tax revenue with corresponding reductions to the general fund.  

When the voters legalized recreational marijuana in 2020 through initiative (I-190), the ballot language read: “I-190 legalizes the possession and use of limited amounts of marijuana for adult use over the age of 21.” 

It also stated, “Marijuana taxes will contribute to the general fund and special revenue accounts for conservation, veterans’ services, substance abuse treatment, health care, and local governments.”  

This language has led to an unfortunate misunderstanding about what spending may be implemented through an initiative. Article III, Section 4 of the Montana Constitution precludes initiatives from dictating how revenue will be spent by noting, “The people may enact laws by initiative in all matters except appropriations of money and local or special laws.” The design of the initiative misled voters by suggesting that the initiative’s earmarks were lawful and permanent.  

The way to correct the impermissible design of I-190 and ensure that future initiatives do not attempt to deceive voters is to redirect revenue generated through the tax authorized by the initiative. If Montana law directed all of the revenue to the general fund, the Legislature would have discretion to use it to address the state’s needs, which is precisely what we do with the rest of the state’s revenue. In 2025, property tax relief might be the most pressing need for it.

The refrain from Senate Bill 442 supporters is that legislators must follow the will of the people, as evidenced by the vote in favor of I-190. Of course, it is impossible to know how many voters favored the initiative because they liked the revenue distribution, which demonstrates the wisdom of the limitation in the state Constitution.

The same groups that decry opposition to Senate Bill 442 as an affront to the will of the people were involved in the debate on House Bill 701 in the 2021 Legislature. House Bill 701 redirected revenue away from certain earmarks in I-190. For example, I-190 directed roughly 10% of the revenue to the Department of Commerce to “mitigate impacts on local communities” and another 10% for wage increases for workers providing Medicaid-funded home and community health services for elderly and disabled persons.  

House Bill 701 scrapped the flows for wage increases for health care workers and local impacts. You may not recall hearing any outcry about House Bill 701 altering the will of the people with those reductions. Neither do I. And that is because the groups who supported both Senate Bill 442 and House Bill 701 have managed to maintain their preferred expenditures at the expense of other earmarks. Yet they are fruit of a poisonous tree.

Rep. Bill Mercer, R-Billings.