MONTPELIER — Gov. Peter Shumlin smiled and said he'd seen it too many times before: legislation declared dead as a doornail spring back to life under the Golden Dome.
Friday morning, sitting in his ceremonial office, Shumlin oozed confidence some kind of marijuana legalization bill would wind up on his desk by the end of this Legislative session.
Meanwhile, downstairs, in the crowded House Judiciary Committee room, Chair Maxine Grad tried to cobble together enough support to get a bill, any bill, out of her committee.
And keep the issue alive for another day.
Earlier in the week, Grad had read the tea leaves. She knew her committee colleagues would not support the pot bill passed by the Senate, S.241, that calls for full-blown legalization — establishing a regulatory framework, taxing pot at 25 percent, permitting commercial growing, and allowing Vermonters and visitors to purchase small amounts of pot at state-approved stores.
So she came up with her own bill, one she hoped would make people feel less like a criminal if they grew a pot plant or two and, more importantly, could get through her Judiciary committee, pass the House and get to the all-important conference committee where three negotiators from the Senate and three from the House could try and hash out a compromise deal.
"My ultimate goal is to keep the conversation going," Grad said during a committee break. "And I don't know what that will look like whether it's, but I think to say 'Oh, we can just do it next year.' I don't think it's that easy because there will be new people, there's a lot of work on both sides of the issue to get to where we are now. I think it's a national discussion and I think we need to be a part of it."
As one member of the Shumlin administration said of Grad's committee and the House in general: "Just get us a bill with 241 on it. We don't care what's in it. It could be calling for National Snail Day for all we care."
That's about all they got.
The Moretown Democrat's idea was to decriminalize possession of two marijuana plants. Grad's draft also called for creating a commission to study and make recommendations for how Vermont could set up a legal, regulated system for the future.
Some in law enforcement saw Grad's proposal as a "trojan horse" to legalization, since it would be difficult for police to track which plants were legal and which weren't. (One idea was to have Vermonters register the plants.) Also, law enforcement officials, including Public Safety Commissioner Keith Flynn, questioned the amount, noting two plants can produce two pounds of marijuana, a large amount for even heavy pot smokers to consume by themselves.
"It's been a while since I've seen a pound of marijuana but my recollection is it's a lot, so I don't know how much a person would smoke in a year, but it seemed to me, that's a lot of marijuana," Flynn said in an interview.
The state's top cop told Grad's committee he is putting all the state's police resources into fighting the opioid addiction problem and has put little to zero focus on pot enforcement. Flynn said he even stopped several years ago taking federal money for helicopter patrols to find pot-growing operations in the fall because he can't free up the manpower. He does worry about drugged driving and supported a proposal to lower the threshold for drunk driving to .05 (down from .08) if drugs are also found in one's system.
In the end, Grad couldn't sell the two-plant proposal to her committee. All she could get them to pass, barely, the vote was 6-5, was a bill calling for the study commission, $350,000 for prevention and education programs and the lower drunk-driving threshold if drugs are also found.
A far cry from the Senate bill, the House committee measure was enough, however, to keep the issue alive and avoid having Pot Legislation 2016 declared dead right then and there in Grad's committee room.
(Grad opted to strike the Senate language and replace S.241 with her committee bill. If it passes the House, that would set up a House/Senate conference committee. Had she developed a new house bill, as had been considered, that would have required getting permission from the Senate Rules Committee for the bill to go back to the Senate, having missed crossover. Sen. John Campbell, the Senate President Pro Tem, would have been the deciding vote. He has opposed legalization but has also said he would not hold up the bill on procedural grounds. His vote was an unknown.)
Even though a bill limped out of Grad's committee Friday by a one-margin margin, it's no sure bet the House will pass anything. Grad's committee's proposal will now go to the Ways and Means Committee and then to the Appropriations Committee to approve the $350,000 before it faces the challenge of passing on the House floor.
Speaker Shap Smith said at the beginning of the session that he supported legalization but there were too many unanswered questions, the timing wasn't right and he was unsure it would pass. He said Friday he will fight for a bill. He says legalization is inevitable and that Vermont needs, at the very least, to get ready. Smith may also push harder for Grad's bill as he contemplates entering the lieutenant governor's race, where Sen. David Zuckerman, P/D-Chittenden, one of the leading sponsors of the Senate bill, is already running.
What will be enough for Shumlin to declare victory is not clear. A bill that calls for a commission and allowing Vermonters to grow a few plants would seem to be hardly enough.
The Senate bill, he said, is "very close to perfection and is the bill we should be fighting for."
Sen. Richard Sears, the chair of the Senate Judiciary Committee, already appears to be preparing to negotiate. He huffed and puffed to WCAX that the Senate bill, after months of works, had been gutted by the House, but Sears, who's been working closely with the governor, may be playing the Bad Cop and will almost certainly be on any Senate conference committee.
"Rather than deal with the work that the Senate Judiciary Committee did and to build on that work, they've decided to basically gut the bill," said Sears, D-Bennington.
Shumlin said he liked the part of Grad's proposal that allowed Vermonters to grow a couple of plants.
"I think the small amount of homegrown-in-your-garden provision that the House is working on right now is a good addition to the Senate bill," Shumlin said. He opposes indoor cultivation because it can result in large-scale operations police can't detect. Sears, interestingly, opposes allowing any homegrown pot.
Shumlin clearly likes the Senate bill. He says it makes more sense to set up a system where Vermonters can buy pot in stores because he said most of the 80,000 who admit they smoke won't want to grow their own pot. That was the problem, he said, when Vermont passed a law allowing for medical marijuana but set up no dispensaries out of fear they would be abused. Shumlin said a cancer patient called his Senate office after the bill passed "wondering what a drug dealer looks like."
Grad also mentioned another possible strategy: the Senate attaching its pot bill to a measure the House has already passed and sent over for Senate approval. She pointed to a House bill that reforms the driving while license suspended program as a likely target for Senate hostage-taking.
Shumlin is actively involved in pushing for legalization. It's a priority this legislative session, his last before he leaves office.
"Sure, I'm talking to folks, talking to committee members, working with the Speaker and doing everything that I can — we're in there testifying and doing what administrations do to get a more sensible bill, a more sensible system than we have right now," the governor said.
"It's better for governors to not quarterback every move that is made," he said. "I believe that there's a good chance that we'll come out of this building with a more sensible policy than the broken War on Drugs prohibition of marijuana that is failing us so badly and forcing Vermonters to buy it from illegal drug dealers."
Is there a middle ground?
"Let's see," he said. "That's what this process is all about."
"You always know that bills have, you know, it's a long process to the end and all I'm saying is I've learned don't quarterback every move that's made. I think we have a good chance of getting a more sensible marijuana policy passed in this Legislative session than I've seen in my years in this building," he said.