Misfire: When Good Ideas get Lost in a Badly Written Law

We prefer to keep good bills alive and improve them with friendly amendments, but it depends on sponsor cooperation.

On Wednesday, H613 failed on the Senate floor in a 16-18 vote. The bill aimed to stop advertising marijuana sales in Idaho because marijuana use is illegal both in state and federal law.

So, was the opposition to the bill because some legislators wanted to allow marijuana advertising on billboards in Idaho?

Not at all. Many who voted against the bill are 100% in support of banning advertising for illegal products and services in Idaho. Unfortunately, the bill banned a lot more than that. The bill had major issues that could lead to unintended consequences.

The history of H613.

The House Judiciary and Rules Committee members were the first to review the bill on February 29. They had various concerns and confusion, so they forwarded it to General Orders for potential changes on the House floor. However, it remained untouched there for a week before being brought to the House reading calendars without any attempted amendments.

Numerous questions and confusion occurred during the bill's hearing in the Senate Judiciary and Rules Committee on March 18.

The most significant flaws were revealed during the Senate debate on the bill. This is part of the process; it is exactly how good legislation is produced. As a result of the concerns raised, the Senate took a break to allow the sponsor time to find answers to questions and was given the opportunity to postpone the vote for a day to consider possible amendments.

There's no need to rush the vote when significant concerns are raised, especially since we can still amend the bill and bring it to a vote in one day if necessary.

Regrettably, the sponsor declined two opportunities to delay the bill for possible amendments and insisted on a vote on the floor immediately.

The legislature's role isn't merely to pass legislation based on its intent; it's to ensure that the proposed law's text effectively achieves its purpose while avoiding unintended consequences and constitutional issues.

Our preference is to keep good bills alive and amend them when needed, but this depends on the willingness of the sponsor to cooperate with friendly amendments.

But even after all that, many of those who voted against the bill have already contacted the sponsor, offering support to improve it and help with its passage this session.

The problems with H613.

Let's delve into the issues surrounding H613. The understood goal of that bill was to prohibit advertising illegal products and services, such as abortion and marijuana, on billboards in Idaho. This could be achieved by drafting a bill that literally states:

Suggested 18-8901. ADVERTISING CANNABIS PRODUCTS. No person shall advertise in favor of marijuana or marijuana-related products within the state of Idaho in any medium, including electronic media. Any person who violates the provision of this section shall be guilty of a misdemeanor.

Most who opposed H613 would vote for that bill.

But that is not what H613 stated. Here is the text of H613:

The actual text of H613 - 18-8901: ADVERTISING ILLEGAL PRODUCTS AND SERVICES PROHIBITED. Any person who willfully publishes any notice or advertisement, in any medium, within the state of Idaho for a product or service that is illegal under the laws of the jurisdiction where the product or service is offered, including federal, state, or local laws, is guilty of a misdemeanor.

Fines remitted for violations of section 18-8901, Idaho Code, shall be apportioned ninety percent (90%) to the county where the violation occurred for appropriation to the sheriff's office and ten percent (10%) to the district court fund of the county where the violation occurred.

The statement of purpose (SOP) that accompanied the bill outlined the following, although it's important to note that an SOP is not the proposed law itself:

This legislation will prohibit advertising of products and services in Idaho which are federally illegal.

Some questions.

Let's revisit the actual text of H613. Please read it carefully once more, and let's pose some questions:

• If someone advertises abortion services within Idaho for the abortion service to be provided in Spokane, what would this bill do? Abortion is legal in Spokane, where the service is offered. The bill drafter might have said, “It is illegal under the laws of the jurisdiction where the product or service is advertised.” Replacing the word “offered” with “advertised.”

• Now, consider a more serious question—the bill states, “that is illegal under the laws of the jurisdiction…., including federal, state, or local laws.

  • The way that reads, the product or service being advertised would put the person in jeopardy if it were illegal under federal law, OR state law, OR local laws. If any of those laws banned a product, it could not be advertised in the jurisdiction.

  • Consider this scenario: What if the ATF issued a rule banning pistol braces? That would be considered a federal law. Now, suppose the state of Idaho, exercising its sovereignty or federalism, decided to permit Idaho manufacturers to sell and advertise pistol braces within the state. How would H613 address this? Given that the brace is illegal under federal law but legal under state law, how would the bill reconcile this discrepancy?

• Let's take gambling as another example. Federal law allows gaming on tribal reservations, while Idaho state laws restrict gambling outside of these areas. How would H613 impact advertising for a reservation casino if that advertising is done off the reservation?

• Imagine a marijuana shop in Ontario, Oregon, or Spokane, Washington, advertising on a radio station in those cities. However, the broadcast extends into Idaho's jurisdiction. How would H613 be enforced?

• Consider a scenario where a shop sells marijuana in Oregon but advertises its brand or image in Idaho. How would this be addressed under this legislation?

The solution.

If our goal is to ban the advertising for prostitution, marijuana, or abortion on billboards along Idaho highways, the following would be a simple and direct solution.

Suggested 18-8901. ADVERTISING ILLEGAL PRODUCTS OR SERVICES. No person that provides products or services in favor of prostitution, marijuana, or abortion shall advertise or promote such products, services, or related branding or images on any billboards, signs, newspapers, magazines, pamphlets, or other printed material located or distributed in the state of Idaho or in any mail delivered to addresses in the state of Idaho. Any person who violates the provisions of this section shall be guilty of a misdemeanor.

Summary.

The failure of H613 underscores the challenges of crafting effective laws. Despite the bill’s intent to limit marijuana ads, its flaws led to rejection. This highlights the significance of transparent and cooperative lawmaking. The IDFC is prepared to collaborate and address these issues, demonstrating our commitment to improving legislation for the benefit of all.

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