If voters approve the legalization of recreational marijuana at the polls this year, what appears on the ballot may not be what the state actually ends up with.
We won't know for another week if the marijuana ballot question passes, but Beacon Hill leaders are already talking about altering the rate at which marijuana sales are taxed. Leadership in both branches of the Legislature and in Gov. Charlie Baker's administration floated the idea this week of revisiting the law after voters have their say in order to address questions they have about enforcing new regulations.
The Legislature has a history of tweaking the laws put on the books directly by voters through ballot questions. There was the time they defunded, then eliminated, the voter-approved clean elections law after the fact. And conservatives activists certainly haven't forgotten when voters ordered the income tax rate down to 5 percent and lawmakers ignored it, only to set up their own system of lesser tax rollbacks.
Which brings us to the marijuana ballot question, which asks voters if they want to create a new commission to regulate marijuana sales similar to the way alcohol is managed now. The new regulations would set up a structure for how sellers and growers operate and tack on 3.75 percent to the sales tax for marijuana. Cities and towns could add another 2 percent on to that, creating a steady stream of revenue to fund the administrative costs of managing legal marijuana.
Recent polls suggest that the people on Massachusetts are just fine, for the most part, with legalizing cannabis for more than just medical use. A MassINC poll conducted for WBUR earlier in October found that 55 percent of respondents favored legalizing weed, with 40 percent against and 5 percent undecided. That finding was up from the polling group's previous finding in September where 50 percent said yes to pot and 45 percent said no. Other polls conducted in September and October showed support for marijuana legalization between 50 and 53 percent, with opposition ranging from 40 to 45 percent.
(The same October MassINC poll found that 84 percent of Bay States don't care if people use marijuana in their homes, but 64 percent have a problem with its use in public.)
MassINC's most recent poll has a margin of error of plus or minus 4.4 percent.
But ask the Beacon Hill big shots, and they'll tell you that 3.75 percent excise tax may not be enough to fund the state's efforts managing the new trade.
"I’m not convinced yet that the rate that’s in the proposed law is sufficient to cover all those expenses, but assuming we reach the point that the voters pass it and we now know that we will have a rate that will cover all that, I’m open to going beyond that," Sen. Stan Rosenberg said to reporters Monday after meeting with Lt. Gov. Karen Polito and House Speaker Robert DeLeo.
In a rare display of harmony among the Legislature's branches, DeLeo seems to be on the same page with Rosenberg. Depending on what legislative jukes and maneuvers lawmakers decide to perform if legalization passes, a bill to raise the pot tax would most likely have to originate in DeLeo's House.
"I would think that, should the voters decide on passing it, I think anything and everything would be on the board in terms of whether it's taxation, whether it's regulation or whatever it may be," DeLeo said.
Of course, both Baker and DeLeo oppose the ballot question from the outset and have been outspoken critics of legalizing marijuana this year.
Critics of the ballot measure have pointed to potential problems implementing what the ballot calls for. Revenues from taxation, regardless of the tax rate, won't come in until after shops are operational, leaving the state to pick up the tab for establishing the regulatory framework.
"This ballot question is so deeply flawed and slanted to benefit the marijuana industry that voters should reject this proposal and send it back to the drawing board. Once it's passed, it's very difficult to put the genie back in the bottle," Corey Welford, a spokesman for the anti-Question 4 Campaign for a Safe & Healthy Massachusetts told WGBH News.
Sen. Michael Moore, the vice-chairman of the Senate's special committee on marijuana, said he doesn't think voters will be upset if lawmakers amend a new marijuana law to add safety measures and address revenue concerns to pay for regulation.
"If they pass legalization of recreational and we pass it, but we put certain guidelines in there to make it what we think is going to be safe and marketable and meet the criteria we hope that voters will be happy with, I think that's the important part of this," Moore said.
Moore said the tax rate could go as high as 30 percent to bring it in line with what other states with legalized marijuana charge.
This wouldn't be the first time lawmakers overrode the language passed into law by the people via the ballot. In 2003, the Legislature, under the leadership of then-House Speaker Tom Finneran, put the kibosh on a voter-approved clean elections law by using the General Court's power of the purse to remove the funding source for the state's brand new clean elections system. After another ballot measure that simply asked voters if tax money should be spent on political campaigns, Finneran and the Legislature eliminated the law for good.
So if everything is on the table, where might Democrats meddle further into law passed by voters? When asked, DeLeo's office did not offer any further details on additional taxation or regulation, but House Public Safety Chair Rep. Kate Hogan agrees with the Speaker that the Legislature "will have an opportunity to review the language and make policy recommendations as needed."
"Other states have gone down this path before us and I think it's prudent to look at what their experience has been and what challenges have arisen during implementation," Hogan wrote to WGBH News in a statement.
The Senate has a lengthy game plan laid out in a report it generated this year on how the state should approach marijuana should it become legal. The chairman of the task force that put together the report, Sen. Jason Lewis, came out against this year's measure, saying the language on the ballot isn't the right way to go about legalizing, but the report still outlines suggestions for how lawmakers might want to further crack down on weed sellers and growers given the opportunity.
Lewis did not respond to requests to comment or elaborate on what Democratic leaders said Monday. The fight to defeat the ballot measure goes on for opponents like Lewis and DeLeo who are against Question 4 as election day approaches. But already the gears could be turning behind the scenes to reign in a newborn cannabis sector if the measure is approved.
The Senate report calls for "public health education campaigns aimed at youth" to be funded and launched "as soon as possible" to help crack down on marketing targeting smokers under 21 and illicit black market trade. The report also asks lawmakers to consider "imposing additional limits or restrictions on sales of marijuana products to young adults age 21-24," in future legislation. The Senate report also wants to provide "adequate funding for training of law enforcement, including more drug recognition experts," to crack down on impaired driving, an effort that would raise enforcement costs and make a higher excise tax more attractive to budget-conscience lawmakers.
"Should the voters of Massachusetts decide to legalize marijuana, it will be critical to dedicate sufficient time, expertise, and resources to ensure as smooth an implementation as possible, which nevertheless is likely to be challenging," the report reads.
The Senate report even wants to hide your new pot purchase like it's the newest issue of Penthouse, requiring "plain gray or similar opaque packaging for all products when they are purchased and removed from a retail store." The report calls for child-proof packaging, potency labels and more. It even goes so far as to address how to avoid the Commonwealth becoming awash in bongwater and smelling like your dorm room, with a provision about regulating "wastewater and odor from growing facilities and labs."
For their part, the pro-legal weed side of the ballot question hopes to have a seat at the table should the Legislature weigh further regulations on marijuana.
"But we also urge the legislature to respect the ballot question process, which would allow all parties to publicly testify in front of the individuals, appointed by the Treasurer, on the Cannabis Control Commission, who would establish the regulations," Yes on 4 spokeswoman Francy Wade wrote in an email.
Marijuana for medical use was legalized in 2012, but implementation by the Department of Public Health under then-Gov. Deval Patrick's administration was slow and hampered the licensing and opening of dispensaries. The law allowed up to 35 dispensaries, but as of 2016 there are only five operating in the state. There were under 24,000 certified patients ready to receive medicinal marijuana in the state by the end of 2015, according to the Senate report.
Raising taxes, especially right after voters specifically approved a certain rate, isn't the kind of thing Gov. Charlie Baker typically goes along with when his Democratic colleagues in government put it in front of him. Baker has been staunch about not raising taxes or fees at all, but there seems to be a window of opportunity when it comes to new industries like ride hailing, Airbnb, and now, cannabis.
“Marijuana, this is a whole new landscape and would change the culture, and it’s something, as the speaker said, we’d have to take a look at all of that. Provided that the voters vote for it," Polito said Monday, speaking on Baker's behalf.