DOVER – The push to legalize recreational marijuana quietly advanced late last week, after the House Appropriations Committee released the bill without a hearing under a party-line procedural move.
On Thursday, House Bill 305, also known as the Delaware Marijuana Control Act, was pushed out of the committee tasked with ensuring any law with a fiscal impact on the state is budgeted beforehand by what’s known as “walking a bill.” It’s a process where a majority of committee members sign a “bill backer,” allowing it to bypass a public hearing. The bill’s impact has already been budgeted for, therefore making a hearing unnecessary before the committee, the Democratic caucus said, although Republicans said the move prevented a chance for further public input.
HB305 passed its first test in a hours-long Jan. 26 hearing by the House Health & Human Development Committee, where a 10-4 vote advanced the bill. That committee vote also came largely along party lines, although Republican Rep. Mike Smith joined Democrats in support of advancing the bill that saw more than 25 people testify in support and no one explicitly oppose.
In the six-member Appropriations Committee, all four Democrats backed advancing the bill without a hearing while two Republicans opposed. It sets up the House of Representatives to hold its first vote on legalizing recreational marijuana since it was defeated by four votes in 2018. That vote could come as early as next month when the legislature reconvenes if leaders move forward in scheduling a floor vote.
Because the bill seeks to establish new fees on potential marijuana sales and licenses, it will require a 60% super-majority vote (3/5ths) to clear each General Assembly chamber – 25 votes in the 41-member House, and 13 votes in the 21-member Senate. Democrats have one seat more than the super-majority levels in both chambers, meaning they could pass the measures even with full Republican opposition.
Even if the measure passes the General Assembly, it likely would face a difficult test with Gov. John Carney, who told Delaware Business Times last month that his stance on legalization hasn’t changed from prior years. Carney has never explicitly endorsed legalization, saying he worked hard as lieutenant governor to reduce smoking rates in the state and implying he opposed legalizing a new vice.
Democratic lawmakers would have enough votes to override a veto by the governor, but it would require them to keep virtually every caucus member in line, a potentially tall task.
A similar legalization bill by Rep. Ed Osienski (D-Newark) also passed in committee last year but failed to get a floor vote in the House. The Delaware Legislative Black Caucus raised concerns over the finer points of the racial equity provisions of that bill, imperiling its ability to pass. Democratic House leaders have also traditionally been cooler to advancing legalization, while a newly progressive Senate Democratic Caucus is expected to pass the measure.
Osienski met with Black lawmakers, state officials and cause proponents over the past year to craft a bill that had the potential to pass this session, after New Jersey and Virginia have approved legalization in recent years.
HB305 would allow legal personal possession of 1 ounce of marijuana for adults ages 21 or older and set up a framework for its taxation and sale. It allocates 30 retail sale licenses, 30 manufacturing licenses, 60 cultivation licenses and five testing licenses to be issued within 16 months of the bill’s approval.
In deference to concerns from law enforcement and the business community, it does not change existing state law regarding driving under the influence nor illegal public consumption and retains an employer’s ability to enforce a zero-tolerance workplace through drug testing. Despite calls from some advocates for allowing private growing, the bill will not allow home cultivation.
That social equity pool will contain half of the first-round retail licenses, a third of cultivation and manufacturing licenses, and two testing licenses. The bill also directs 7% of recreational marijuana sales tax revenue be placed in a Justice Reinvestment Fund, that will be administered by the Delaware Department of Justice for grants, contract services and initiatives on criminal justice improvements. restorative justice, jail diversion, workforce development, and more.