Just Say Never: Proposed constitutional amendment on drug policy would set Idaho apart even more

by Devon Downey and Logan Finney, Idaho Reports

Idaho would not allow recreational marijuana to ever be legalized if a new constitutional amendment is passed by the Legislature and voters.

On Feb. 3rd, the Idaho Senate passed Senate Joint Resolution 101 on a 24-11 vote, just passing the two-thirds requirement needed for a constitutional amendment. The amendment, proposed by Sen. C. Scott Grow, R-Eagle, would prohibit psychoactive drugs in Idaho and would only allow those substances in the future if the U.S. Food and Drug Administration approved it as a prescriptible medication and the legislature allowed it in statute. 

Medicinal marijuana is one issue that Idaho has stood apart on compared to its fellow states. An examination of state medicinal marijuana laws from the National Conference of State Legislatures shows that Idaho is one of only three states that has no access to legal marijuana, medicinal or recreational. 

Dr. Jaclyn Kettler of Boise State University’s School of Public Service expanded on the report. “It’s really interesting to see Idaho continue to really resist, and not just resist, but actually trying to actively prevent the legalization of marijuana in any way,” she said. “The hemp debate has come up with this… and Idaho kind of stands alone there too.”

This amendment follows 2019 legislation, introduced by Grow and vetoed by Gov. Brad Little, that would have substantially increased how many signatures and legislative districts are needed to qualify for the ballot initiative process in Idaho. 

Every election cycle since 2012 has had a petition to legalize some form of marijuana in Idaho, though none have ever received enough signatures to go on the ballot. Although a marijuana initiative has never been put on the ballot, activists believe that it would pass if they could get enough signatures. Idaho does not get polled frequently, but a 2019 poll from FM3 research showed that 72% of Idahoans support legalizing medicinal marijuana.

While Idaho has not had a ballot initiative for marijuana, other states in recent years have. In 2020, marijuana initiatives passed in Arizona, Mississippi, Montana, New Jersey, and South Dakota.

If an initiative for medicinal marijuana were to be put on the ballot, it is likely that Idaho would see a large amount of campaign funding on the issue. “It’s a big debate on how advertising [and] spending influences ballot initiatives,” Kettler said. “Research suggests that campaign spending does influence outcomes. And so it can be, if you do have a lot of spending, it can have an impact on the outcome”

However, Kettler said it’s unclear how campaign spending impacts issues on which voters already have opinions. “I think the role of spending in ballot initiatives on things like marijuana — where it tends to be an issue that people are more aware of and have existing opinions on — I think there’s still questions about whether a huge amount of spending to defeat it, how effective it is.”

Beyond marijuana initiatives, Oregon voters approved an initiative in 2020 that decriminalized certain drugs in small amounts, shifting the state’s policy away from drug convictions and toward rehabilitation and addiction treatment.

“This constitutional amendment protects and preserves Idaho by continuing to keep illegal drugs out of our state,” Grow said when introducing the proposal. “We have recent drug legislation in Oregon that shows kind of the endgame of where all this drug legalization is headed.”

Voters in Oregon also passed an initiative that directs the state to create a therapy program utilizing psilocybin, the psychedelic compound found in magic mushrooms. Psilocybin is currently undergoing clinical trials for treating depression and has received breakthrough treatment designation from the FDA

“When it comes to marijuana or cannabis, the drug companies would have to pay for that kind of approval,” Sen. Grant Burgoyne, D-Boise, said before the committee sent the bill to the full Senate. “And the hundreds of millions of dollars involved in obtaining that approval, when they can’t obtain a patent on marijuana, makes the prospect of the FDA approving anything very remote.”

To date the FDA has approved one cannabis-derived CBD medication for treating seizures and three synthetic drugs with chemical structures similar to THC, all of which are only available with a prescription. 

The proposed constitutional amendment would specifically ban schedule I and schedule II drugs as listed in statute on July 1, 2021, which enables the legislature to make changes to the list of prohibited substances before the end of the current legislative session. 

Last year several pieces of legislation relating to industrial hemp were unsuccessful. Despite not containing the psychoactive compound TCH, hemp is currently treated the same as all marijuana under state law. Grow indicated that some legislators who were previously opposed to hemp legalization were willing to support it this year in conjunction with the drug amendment.

In an Idaho Statesman op-ed, Rep. Ilana Rubel, D-Boise, and Rep. Mike Kingsley, R-Lewison, say they are co-sponsoring legislation this year to allow strictly regulated medical cannabis in the state.

The constitutional amendment, if passed by the requisite two-thirds of the House (47 votes) would go before voters on the November 2022 general election ballot.

Updated to reflect the Feb. 3rd Senate vote

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