Beyond Legalization: Making the Case for Centering Pot in the 2018 Midterms

Editor’s Note: Ready to vote in next week’s midterm elections? Today’s post comes from contributing editor Bob Beach, in which he explains the status of America’s shifting cannabis laws and shows what new state and federal initiatives might mean for 2018 and beyond.

In many ways 2018 was the Year of Pot. Sales of legal weed are booming in nine states and Washington, D.C. Pot sales are expected to flirt with $11 billion this year and could reach $25 billion annually by 2025, according to some estimates. Last month, on September 21, Governor Ralph Torres of the Commonwealth of the Northern Mariana Islands (CNMI) signed the first legalization legislation in a US territory. Congressional reform proposals have become more frequent and publicized. Perhaps as many as 15 states were considering voter initiatives (the exclusive route to reform in the United State prior to the CNMI legislation) for 2018 to expand access to marijuana. Six states will vote on, or have voted on ballot measures in 2018, while the remainder failed to register the appropriate signatures. Five states will consider recreational legalization (Michigan; North Dakota) or medical legalization (Missouri and Utah; Oklahoma approved in June) while the sixth (Colorado) will consider redefinition of industrial hemp.

Representatives from the Commonwealth of the Northern Mariana Islands after signing legalization legislation in September 2018

Public support for legalization continues to grow (to 62% according to a recent poll) and support for medical marijuana has become overwhelming. But support for increasing access to pot will likely remain a very low priority for voters on election day. Especially this year, when the midterm elections appear to be a referendum on the Trump Administration, it seems a little indulgent for folks to continue to push a legalization agenda in this election season. However, the party that controls legalization will be able to shape the contours of reform, and those contours comprise some of the most important issues surrounding legalization according to activists.

Despite rhetoric from the Trump administration, it is unlikely that Republican leadership will actually scale back legalization. In January, Jeff Sessions rescinded the so-called Cole Memo, a 2013 directive seeking to settle the federalism debate by limiting the prosecutorial scope of federal investigations into marijuana violations, recognizing the status of state laws that run counter to federal law. Sessions’s action does not appear to have restarted the Bush-era raids of cannabis dispensaries. Even maintaining the status quo on pot leaves these important issues ignored, however, and will only exacerbate the continuing trauma of the failed War on Drugs. While Democratic office holders and challenging candidates are highlighting the importance of criminal justice reform, as well as the importance of reinvestment in communities affected by the drug war and increasing efforts to expand our understanding of the policy implications of recreational and medical marijuana, Republicans are much more muted and in some cases are outright hostile to these elements, as they are much more focused on economic priorities instead. Elizabeth Warren, speaking with Rolling Stone in August, identified Sessions in particular as the main catalyst for Democratic efforts at reform and Mitch McConnell (incidentally the sponsor of the 2018 Hemp Farming Act, which would redefine hemp as an agricultural commodity and is seen as a potential boon to struggling farmers in the Midwest) as its main obstacle.

It is worth noting at the outset that the growth market in legal marijuana is in states that voted for Donald Trump in 2016, and this year, the five states that will consider voter initiatives went red in 2016. The map of recreational states might be confused for a map of states that voted for Hillary Clinton (Alaska the only exception). By contrast, all of the states (except Virginia) that lack provision for recreational or medical regimes are Trump states. So the possibility of Michigan (a state that Trump flipped in 2016 from 2012) and North Dakota becoming recreational states could be an important turning point in moving red states in the direction of reform.

Looking deeper into overall poll numbers reveals an issue firmly divided along party lines. While 68% of Democrats and 68% of “Independents” support legalization, only 45% of Republicans support legalization while 51% oppose. The Trump administration is characteristically haphazard on the issue with Trump offering sporadic and tepid public support for some marijuana initiatives. Red states and Republican leaders do tend to support medical marijuana however, and Utah and Missouri could add two to the ten red states that already have medical marijuana access.

Beyond medical marijuana, congressional Republicans appear to be warming to legal pot to some degree, even cosponsoring several new bills this year, and the pot industry sees growth regardless of which party controls Congress after 2018. It appears clear that reform efforts will benefit much more from a Democratic sweep in Congress, however. The enthusiasm for reform from the progressive wing of the Democratic party is changing the tenor of the debate as well. Democratic strategist Ben Pollara has claimed that, with so much political support among voters, the marijuana issue “is no longer an issue with political downside; it’s an issue with almost entirely political upside.” We are seeing younger, more diverse, and more left-leaning candidates embrace the marijuana issue, outpacing the Democrat party’s leadership which, despite a relative flurry of federal bill proposals by potential Democratic 2020 Presidential candidates like Elizabeth Warren and Cory Booker, has been more hesitant to embrace the issue. 

The primary obstacle to reform will continue to be the conflict between federal law, which classifies marijuana as a Schedule I controlled substance (with no recognized medicinal or other value), and state laws that allow exceptions through recreational, medical, or industrial/commercial avenues. In another development in the Year of Pot, the FDA approval in June of Epidiolex, an oral cannabidiol used in the treatment of Lennox-Gastaut syndrome and Dravet syndrome , which could provide legal basis for challenging marijuana’s Schedule I classification, and could eventually be the tipping point toward rescheduling. Those legal challenges are a way off. But in the immediate term Democratic Party leaders have introduced several bills that would re-define marijuana in federal law.

In January, following Sessions’s rescission of the Cole Memo, House Democrats introduced their companion bill to Cory Booker’s Marijuana Justice Act from 2017. The bill remains perhaps the most liberal of the standing proposals on marijuana, providing for full legalization through federal legislation. Much more moderate, but focused specifically on the federal/state conflict, are the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act and the Marijuana Freedom and Opportunity Act, both introduced in June, which would both essentially defer marijuana policy to the states.

Perhaps the prime justification for challenging federal marijuana law has been the financial boon (both public and private) to states that legalize. The taxes from cannabis sales in legalized states has been earmarked for education, infrastructure and healthcare, and several programs are geared to benefit military veterans. Proposal 1 in Michigan would provide $20 million to fund clinical trials on the efficacy of marijuana in treating medical conditions for veterans, and two of the three competing medical marijuana proposals in Missouri would provide funding for various veterans’ healthcare initiatives.

The short-term assessment of legalization, especially as it focuses on economic growth and tax revenue, seems to indicate that the regulation and taxation of marijuana has provided a net benefit for states that have adopted legalization regimes. But this year’s legalization efforts at both the state and federal level could provide much more data on the wider implications of marijuana’s increasing presence and guide policy makers in future reforms. Foremost among these would be the Marijuana Data Collection Act.

Tulsi Gabbard

Introduced by Tulsi Gabbard in July, the act would charge the Department of Health and Human Services with generating regular reports on “the effects of State legalized marijuana programs on the economy, public health, criminal justice, and employment.” In a press conference introducing the bill, Gabbard emphasized the lack of empirical data informing the legalization movement and touted the bill as an important step in assuring a consistent stream of reliable data to track the wider impact of legal marijuana. Other proposals, like Michigan’s Proposal 1 and the VA Medicinal Cannabis Research Act of 2018 (Senate and House versions) would provide funding for research into marijuana’s potential as a medical treatment. The Medical Cannabis Research Act, introduced by Florida Republican Matt Gaetz, would require the federal government to issue more licenses for growing marijuana to be used in scientific research.

If passed, these research-oriented bills could fundamentally reshape our understanding of legalization and could add empirical weight to the concerns that are being raised by Progressive-leaning Democrats about the haphazard path toward the national repeal of marijuana legalization. More significant than the issues related to federalism and taxation, these social justice concerns have emerged at the forefront of pro-reform advocacy. This only adds to the stakes in the 2018 midterms. Without continued pressure from these activists, and a majority party willing to hear their arguments, legalization might well continue, but it is unlikely that social justice concerns can remain on the leading edge of reform.

Activists insist that future legislation expanding or introducing access to marijuana must exist alongside provisions that address past Drug War failures. Primary among these efforts are moves to expunge criminal records and commute sentences of those convicted under repealed marijuana statutes. North Dakota’s legalization initiative, Measure 3, would automatically seal any prior conviction for marijuana offenses. Booker’s Marijuana Justice Act would also expunge prior convictions. Additionally, it would create a $500 million Community Reinvestment Fund to focus on job training and development in areas disproportionately impacted by the War on Pot. The Marijuana Freedom and Opportunity Act introduced by New York Senator Chuck Schumer in June includes a similar provision. Booker’s bill would also disincentivize continued injustice by cutting federal funding for law enforcement and prison construction in states found to continually target vulnerable populations. Booker called the provision the “reverse of the 1994 crime bill” which provided perverse incentives to increase penalties and incarceration. The Michigan legalization proposal contains a similar provision.

Significant obstacles remain and the gaps in the 2018 proposals are instructive in this light. A significant conflict over Michigan’s Proposal 1 centered around the existing proposal to merely reclassify existing convictions as civil infractions. The so-called “retroactive” legalization measure in Michigan, which would have expunged existing convictions, did not make the ballot. In Oklahoma, the proposal to introduce medical marijuana in the state was passed with a significant increase in penalties for folks who cultivated the plant illegally for sale, while North Dakota’s proposal would increase penalties for violations involving minors.

In addition to issues related to criminal justice reform, other restrictive measures appear to be possible with some of these proposals. A provision in the Michigan proposal would allow landlords to prohibit use of marijuana on their property, virtually eliminating legal places to use for renters, and would not prohibit employer use of drug tests to screen or fire employees who use marijuana. A conflict over the Medical Cannabis Research Act emerged over a provision to restrict the expanded research access from those with prior drug convictions. A proposed Federal Drug Testing Under State Laws Act would bar federal agencies from discriminating against workers because of their status as a marijuana consumer or because of a positive workplace drug test, but it would still not eliminate similar discrimination in eligibility for federal research funding or in private employment.

The United States seems poised to fully legalize cannabis within the next few years, and the 2018 midterms might be looked upon as the final turning point in that process. However, the equity gaps that have emerged in the rush to legalize the drug for economic reasons must be addressed by our leaders in the future. While marijuana legalization remains a minor issue driving voters to the polls in an election, activists and supporters of civil rights must recognize the continuing obstacles in the way of a just path to legalization. It appears that 2018 will be a critical test of how Americans will adapt to the country’s new relationship with marijuana. And since the just path to legalization appears to require a Democratic majority, those of us interested in the United States pursuing that path have yet another reason to get out and vote on November 6.

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