Things looked bright for recreational cannabis advocates at the dawn of 2019. A notably anti-legalization governor had left office, her replacement was in favor of legalization, Democrats had taken the Roundhouse by storm and polling on the issue had reached record highs for the pro-pot faction. It wasn't naive for New Mexicans to imagine that by year's end they might be relaxing on the porch enjoying a legally purchased pre-roll in full view of the public without any repercussions.
Then, in mid-March, the legislative session ended, and the hopes of the hopeful were dashed. State representatives passed HB 356, the Cannabis Regulation Act, but then saw it flounder in the Senate Finance Committee, never having even received a hearing. Sen. John Arthur Smith, the powerful conservative Democrat from Southern New Mexico who heads the committee, told SFR a week before the end of the session that the bill most likely would not be on his agenda before the clock ran out.
Some advocates took what solace they could in how far the bill had come. Never before had a recreational cannabis bill passed a floor vote in the House, as HB 356 had.
Others checked themselves, unhappy with last-minute amendments that changed the nature of the bill drastically, and realizing that perhaps their expectations were too high.
But what happened?
The answer is not a simple one, and there were a lot of players who had a hand, for good or ill, in the outcome. But if one is looking for a culprit, they need look no further than the 12 members of the Senate Finance Committee.
There, all five Republican committee members and some Democrats signaled privately that they would vote no on the bill, according to Smith.
What's significant about this is that, according to several people both within and outside the government, the votes to pass the bill were likely there on the Senate floor, if the bill had only squeezed past the committee. In this way, a small group decided that New Mexicans would not be getting their marijuana, that many criminal records for cannabis possession would not be expunged, and for now at least, the market would stay black.
The only nod that legalization advocates received from the governor and the Roundhouse was a trifling decriminalization bill. Under the new law, those caught with under a half-ounce will face a $50 fine and a penalty assessment, which is not a criminal conviction. A far cry from full legalization, or even full decriminalization, the bill was nevertheless the biggest step lawmakers were willing to take toward ending the drug war this session.
Where did it all go wrong?
New Mexico is an unusual state in countless ways, but one peculiar thing about the Land of Enchantment in regards to cannabis rule-making is its lack of a public referendum. Nearly every state that has legalized the plant has done so the old-fashioned way: It asked its voters. New Mexico doesn't have a system for public votes on specific issues, so if cannabis is to be legalized, it has to be done through the Legislature.
At least in this instance, that has been a significant obstacle. If legalization were put to New Mexico voters, they would likley approve it. Way back in September, around 60% of proven voters polled told the Albuquerque Journal that they supported legalization, while only 32% said they were opposed. The rest were unsure, didn't want to say or didn't have an opinion.
But because New Mexico requires that such measures be decided legislatively, that exposes a bill with considerable support to a governing body that, by its very nature, complicates things. Deals get cut, backroom conversations are held, and priorities are managed. Though this was a "long" 60-day session, New Mexico's every other year of only 30-day lawmaking sessions for unpaid legislators add to the barriers, and any piece of legislation that gets off to a slow start faces a steep climb to success.
In fact, many lawmakers involved in the process say that the two-month window that they had to work with was simply not enough time to get legalization across the finish line this time.
"The bill fell victim to the timing of it," the bill's prime sponsor, Albuquerque Rep. Javier Martinez, tells SFR. "Senate Finance was still going to hear HB 6 and the governor's early-ed proposal, both of which were heard on that last Friday. Potentially it could have been tied up politically as well."
And while the new governor has expressed openness towards legal marijuana, that doesn't mean the issue would have been a priority. Rather, the "education moonshot" that the new Democratic administration has been touting since the midterm elections was at the top of the to-do list.
Was HB 356 even good?
Another question that needs answering: How did this bill end up so bad in the eyes of so many? The differences between Martinez' original bill and the one that emerged from a brutal House Judiciary Committee hearing and then to the floor are stark.
The allowance to grow cannabis in the home, common in most other states that have legalized, was removed from the original bill by the House Judiciary Committee. Members also added language requiring all retailers to be state-run, rather than the private enterprises that exist in many other states, as well as a requirement that people carry proof of purchase for all sales.
Because of these provisions, some advocates were actually pleased the bill failed.
"Don't fret," Facebook user John Carr writes on a SFR post reporting the bill's slim chance of passing. "In this case failure is a good thing. HB 356 is a deeply flawed bill—and just the latest example of the clown show called the New Mexico Legislature."
But others say that the changes were necessary in order to keep the bill from being dismissed out of hand by conservatives.
"It had no chance with home grow," A Blair Dunn, a libertarian candidate for attorney general in 2018 and legal cannabis proponent, tells SFR. "There's also a couple Senate Democrats that will go [Republicans'] way; John Arthur Smith and George Muñoz come to mind."
"Without some level of bipartisan support in Senate Finance, you don't get out of Senate Finance," Dunn adds.
But the compromises that were made failed to win over a single Republican in finance, and appears to have alienated some of the committee's seven Democrats.
Smith planned to vote against the bill, but his fellow Dem, Sen. John Sapien, who represents District 9 including Bernalillo, tells SFR he favored the initial House bill, but had become more skeptical after seeing the changes introduced during the House Committee process, and was unsure how he would vote.
Sen. George Muñoz also expressed skepticism about the bill.
"I didn't like either one to be honest," Muñoz tells SFR, referring to the bill before and after it was amended in the House. He says that he liked the proof of purchase requirement, but was confused as to why home grown cannabis was banned. "If it's recreational and they want to grow it, let them grow it."
Neither Sapien or Muñoz would say definitively whether they had told Smith that they planned to vote no.
"The vote in there would've been 7-5 against it, and I was told it might even been 8-4," Smith says.
Martinez says the late-hour amendments gave the bill a chance to win over Republican legislators.
"We knew that it was going to be a heavy lift; just given the makeup of the committee, we have some pretty conservative people on that committee," Martinez says. "Having said that, I believe that the way we crafted the compromise bill, by including those Republican ideas, that at least gave us a shot to at least appeal to some of those more conservative Democrats or some of the more libertarian Republicans on that committee."
What happens next?
The governor signaled shortly after the session ended that she would make cannabis a priority during the next session, which is promising for advocates. Martinez says that the governor's office has contacted him and intends to work with legislators before the next session in 2020 to get a similar bill on the table.
But other than the governor's fuller attention, little has changed in the legislative landscape. Time will still be an issue, perhaps even more so in the short sesion upcoming.
Whether a bill that reportedly died due to a time crunch could squeak through the Roundhouse and land on the governor's desk in a month is an open question. Sen. Mark Moores, a Republican who co-sponsored the Senate legalization bill from which many of the more conservative amendments were drawn, tells SFR that with a shorter session comes fewer proposed bills, and that he thinks legalization has a shot.
The Drug Policy Alliance, an advocacy group that worked closely on the bill, also hopes that in the time before the next session, a better compromise bill gets support.
"It was obviously a rush to put those two bills together, so we think it could have been a better bill, and it will be a better bill in 2020," says Emily Kaltenbach, state director for the Drug Policy Alliance. "I think it sends a really strong statement that this is a priority for [Lujan Grisham's] administration."
But a legalization bill would still need to pass through the committee process, and likely the Senate Finance Committee. Barring any major changes in worldview among the committee's conservative membership, the biggest obstacle to legalization will remain unchanged.
"We have to remember that we have the same Senate next year. And the individuals who've been in opposition for many years will still be in their seats," Kaltenbach says. "We'll have to see when the time comes whether those folks will jump on board and whether we'll have enough votes in the Senate to get it through."
Read more Cannabis Coverage:
- Charting Medpot: New administration embraces expansion of Medical Cannabis Program
- The State of CBD: Unpacking the properties of CBD, what to look for in products and the legal standing of the cannabinoid
Get SFR's monthly Leaf Brief email to stay up-to-date on cannabis coverage.