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SC House kills medical marijuana on a taxing technicality

Tom Davis (copy) (copy)

S.C. Sen. Tom Davis, R-Beaufort, addresses attendees at a press conference for his bill to legalize medical marijuana at a Jan. 19 press conference at the S.C. Statehouse. The bill was defeated May 4 on a technicality. Nick Reynolds/Staff

COLUMBIA — Seven years of work to legalize medical marijuana in South Carolina has gone up in smoke. 

With only five days remaining in the 2022 session, House leadership ruled a bill to legalize medical marijuana was actually unconstitutional, and killed the measure before members had a chance to debate it.

"Procedurally this bill is dead," Rep. Tommy Pope, R-York, said on the House floor May 4, ending hopes of supporters. 

Rep. John McCravy, R-Greenwood, who introduced more than 1,000 amendments designed to stall its momentum, argued the legislation was a "revenue-raising bill" that legally should have originated in the House where such matters begin.

He cited a case from 2015 in which the S.C. Senate sought to raise fuel taxes for road repairs that the attorney general's office ruled was unconstitutional due to the fact it sought to create revenue. 

While other legal precedents in South Carolina allow for the Senate to create incidental revenue — like fees or penalties — medical marijuana lead sponsor Sen. Tom Davis' bill imposed a new tax on cannabis products in addition to new licensing fees for growers and financial penalties for violating the law.

That was enough to render it illegal.

Pope, the Speaker Pro Tempore, agreed with McGravy, and ruled the bill out of order.

While Democrats sought to overturn the ruling, the House ultimately voted 59-55 to uphold McCravy's objection. Seven members — including retiring House Majority Leader Gary Simrill, R-Rock Hill — did not vote.

In comments after the decision, Davis, R-Beaufort, told reporters he believed the decision to throw out the bill was an arbitrary one. The House had voted for numerous Senate bills with similar revenue-raising provisions this session, he argued, and was told by staff and legal counsel while drafting the bill that its primary objective was legalizing medical marijuana — not creating new taxes.

"That's been part of the bill for the past seven years," he told reporters. "It's just this time around, somebody saw the vote count, tried a Hail Mary pass and, like Doug Flutie, completed that pass in the end zone."

Davis says he will continue to try to pass the bill and is evaluating other bills that are still alive he could potentially rewrite to include medical marijuana. 

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"I would say they haven't won the game yet," he added. "We've got four legislative days left. There are other ways for us to skin this cat. There are other ways for us to get this before the representatives for an up or down vote. And I think that's what the people of South Carolina deserve." 

The narrow decision to uphold the ruling ends an effort that saw what Davis described as the "most conservative" medical cannabis bill in the nation pass the Senate earlier this year for the first time in nearly a decade of effort.

For months, veterans groups and high-profile politicians like U.S. Rep. Nancy Mace traveled to the Statehouse to lobby in-favor of the measure. High-powered lobby groups such as the Koch brothers-backed Americans for Prosperity also launched supportive public campaigns. Polling conducted in the state showed legalizing medical marijuana to be popular with a majority of voters in both major parties.

It's unclear whether it would have gained the support of Gov. Henry McMaster, a former prosecutor who has kept his views on legalizing medical marijuana close to his chest. 

"There are pros and cons to that," McMaster told reporters May 4 in the hours before the bill died. "It’s not an easy question but it’s interesting that you have law enforcement opposed across the board. You have hospitals for it but doctors' associations against it. There are good arguments on both sides. If it comes to my desk, I’ll take a good look and make a decision."

The defeat of the medical marijuana bill could also have implications on cooperation between the House and Senate as the two chambers rapidly approach the end of session May 12. In a gaggle with reporters, Senate Majority Leader Shane Massey, R-Edgefield, said the House's decision "could have significant consequences on the relationship between the House and Senate” amid ongoing tensions between the bodies.

Earlier in the session, the Senate significantly rewrote an election reform bill passed by the House, drawing sharp rebuke from both House Speaker Jay Lucas and McMaster.

While Davis said he did not believe that would involve the Senate working to exact revenge by killing House bills, he did say the working relationship between both chambers could be significantly altered.

"I think there's also a need to explain to the members of the Senate exactly what transpired in the House today," Davis told reporters. "If any Senate bill that involves the raising of revenues that are ancillary to its primary purpose is ruled unconstitutional, that materially changes how the two bodies interact with each other. I think that the Senate needs to discuss that, and we need to consider what the appropriate response might be."

Seanna Adcox contributed reporting. 

Contact Nick Reynolds at 843-834-4267. Follow him on Twitter @IAmNickReynolds.