Legalization of Recreational Marijuana Passes with Comfortable Margins

Initiative faces lawsuit and potential GOP opposition, although Republican supporter and former longtime lawmaker says industry will provide jobs and reliable tax base

By Myers Reece
Young medical marijuana 'clones,' or trimmings from larger plants used to start new plants, are pictured in a hydroponic growing tray at a Montana grow operation. Hunter D’Antuono | Flathead Beacon

Dave Lewis isn’t an obvious choice to be one of the chief advocates and policy engines behind the movement to legalize recreational marijuana in Montana.

Pushing 80 years old, Lewis served as budget director for three gubernatorial administrations, including for former Republican Gov. Marc Racicot, and then served for 14 years as a Republican state senator and house representative for the greater Helena area. He doesn’t personally use marijuana nor does he have an interest in doing so.

But when Lewis saw the overwhelming rural support in his senate district for the state’s medical marijuana initiative in 2010, including high support among seniors seeking alternative medical relief, his curiosity was piqued. Lewis introduced legislation to license and regulate medical marijuana at the 2011 legislative session, and was met with stiff resistance from fellow Republicans.

“I got into a heck of a dog fight, and I got stomped,” he said.

In the years since, Lewis has closely tracked the industry, even after he retired from state government in 2014 following a 40-year career. When he heard about the effort to legalize recreational marijuana, he again saw an opportunity for expanded entrepreneurial opportunities and took on the role of senior policy advisor for New Approach Montana, the campaign that spearheaded the legalization effort.

Leading up to the election, Lewis again got “a lot of heat” from fellow Republicans.

“They said, ‘You’re bringing all these Democrats into vote,’” Lewis said. “I was getting a lot of criticism over that.”

But last week, voters approved ballot Initiative 190 to legalize recreational marijuana and Constitutional Initiative 118 to establish the legal age for marijuana use at 21, by comfortable tallies of 57-43% and 58-42%, respectively.

While the large margins surprised even Lewis, he thinks the results revealed a population of like-minded Republicans. Given that GOP candidates swept Montana’s statewide races, it’s clear that many thousands of voters checked “yes” for both conservative candidates and pot legalization.

“We got a bloc of votes who nobody thought about, basically businessmen, entrepreneurs,” he said. “They came in and voted, and it turns out they were Republicans.”

Lewis added: “Jobs is the bottom line, along with the revenue this will generate.”

Rep. Derek Skees, a Kalispell Republican, drafted a placeholder bill before the election proposing to repeal I-190 in the event it passed. But after seeing the turnout in favor of the initiative, including a majority of Flathead County voters in support, Skees is backing off, although he still opposes legalization and would welcome another legislator carrying a repeal bill in order to launch a legislative conversation.

Like Lewis, Skees was surprised by the initiative’s healthy margin of support.

“The very definition of constitutionality is when citizens speak,” Skees said. “I don’t want to be the guy who throws it in the face of citizens. I still argue that it should have been done through the Legislature, and I would love to discuss it if someone else carries it.”

Even if Skees is shelving his bill, Lewis expects the fight to continue, if not legislatively than legally and culturally.

Steve Zabawa, owner of Rimrock Auto Group in Billings, founded Wrong for Montana to fight CI-118 and I-190, which he said was misrepresented and espouses a revenue appropriation model that is unconstitutional. The group also argues that legal marijuana will lead to negative consequences such as increased addiction among youth and adults, impaired driving and mental health problems.

Wrong for Montana filed a lawsuit before the election in an effort to remove the initiatives from the ballot, but the Montana Supreme Court rejected the litigation on Oct. 21. Then last week, after the election, the group filed another lawsuit in Lewis and Clark County District Court in Helena, arguing that the state constitution doesn’t allow initiatives to appropriate money to specific programs and agencies, and asking the judge to declare I-190 void and unenforceable.

The ballot language for I-190 said it will establish a 20% tax on nonmedical marijuana, with 10.5% of the tax revenue going to the state general fund and the rest “dedicated to accounts for conservation programs, substance abuse treatment, veterans’ services, healthcare costs, and localities where marijuana is sold.”

In an interview this week, Zabawa said voters were misled into believing the revenue will be distributed to causes such as “vets and fish” when he argues that the Legislature would actually be responsible for divvying out the money from the general fund. Zabawa plans to fund a poll asking voters: “If the vets and the fish were taken out of this equation, would you have still voted for it?”

“That’s why people voted for this,” he said.

Zabawa said outside of the college stronghold counties of Missoula and Gallatin, as well as places such as Lake County, the margins were small. He also said Republican Congressman Greg Gianforte, the state’s governor-elect who will preside over the next Legislature, opposes legal marijuana, as do other Republicans.

“It should be interesting to see how it plays out in the Legislature and how this lawsuit plays out,” Zabawa said. “It could be very interesting.”

I-190 estimates that marijuana taxes and fees will generate roughly $48 million annually for the state by 2025, which Lewis thinks is a conservative estimate. Fees will fund program administration and enforcement, while taxes will contribute to the general fund and special revenue accounts that are the point of contention for Zabawa, who also notes that the campaign was significantly funded by out-of-state interest groups.

The initiative also allows a “person currently serving a sentence for an act permitted by I-190 to apply for resentencing or an expungement of the conviction” effective January 2021, prohibits advertising of marijuana and related products, sets possession limits, and allows for people to begin growing up to four marijuana plants in their residences for personal use beginning in January 2021.

The Legislature will be tasked with establishing a regulatory system within the Department of Revenue, with licensing set to begin in October 2021 and recreational marijuana expected to hit the shelves in early 2022.

Lewis acknowledges the issue is “emotional” and that a number of people in Montana who have strong disdain for the idea of legal pot are not going to relent. But he said he studied the track record of other states with legal marijuana, as well as Canada, and doesn’t see red flags that outweigh the economic and tax-base benefits.

“I recognize their concerns, but I think we’ve got to be realists,” Lewis said. “My goodness, it’s been legal in Canada for three years. Google the papers in Calgary and Edmonton and tell me the world is ending. I don’t see that.”

Medical marijuana providers have also expressed concern over potential negative impacts on their business, although Lewis thinks recreational marijuana’s tax rate of 20%, compared to medical marijuana’s rate of 4%, will serve as a bulwark for the existing medicinal industry.

“I don’t think a lot of people will jump from a 4% tax to a 20% tax,” Lewis said.

In a story that ran in Lee Newspapers in September, Pepper Petersen, New Approach Montana’s political director, said he doesn’t anticipate “angst between recreational and medical dispensaries.”

“Burger King is right next to McDonald’s, and they all do pretty well,” Petersen said. “There’s lots of room in Montana for all of them.”

Petersen has also called the arguments put forth by Zabawa in his opposition to legal marijuana “ridiculous” and “objectively out of touch with reality.”

The vote tallies on I-190 and CI-118 remind Lewis of a conversation he had years ago with former state legislator Matt Himsl, a Kalispell Republican who passed away in 2007, about how Montana was the first state in the country to repeal Prohibition in 1926. That vote, Lewis said, reflected the state’s Libertarian ethos of limited government as well as its emphasis on welcoming new business opportunities.

Nearly a century later, he believes that spirit is alive and well.

“I don’t think Montana likes people telling us what we can do, what we can drink or smoke,” Lewis said. “We can make our own decisions, and, hey, wait a minute, we can create a bunch of jobs, too.”

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