Though the presidential election grabbed most of the headlines, Donald Trump wasn’t the only big winner on November 8th – marijuana legalization ballot measures passed in four states, and some did by resounding margins. Thanks to this, more than one in five Americans now live in a state with legal recreational marijuana. Marijuana is a Schedule I substance, a classification system determined by the Drug Enforcement Administration and FDA. The drug has seen a positive shift in public opinion about it over the past ten years, but that evolution hasn’t led to changes in federal law. In fact, last summer, the Drug Enforcement Administration declined to ease its stance on marijuana despite the cascade of public support and state laws trending in favor of legalization.

The federal government’s inaction on marijuana has left the substance in a legal limbo, ultimately revealing an unwillingness to delve too deeply into the issue. However, as the debate over marijuana continues translating into legalization, the federal government should either take a definitive stand, or instead designate the issue entirely to the states.

Back in 2012, ballot measures put Colorado and Washington into uncharted territory as the first states to legalize recreational cannabis use. Alaska and Oregon joined them in 2014, and California, Maine, Massachusetts and Nevada did the same this November. States that have legalized the substance have so far been met with reassuring data. Fears that usage, especially among youth, would skyrocket appear to have been potentially overblown. Marijuana usage among Colorado teens has not changed since 2012 according to the Colorado Department of Public Health and Environment. This is likely because teenagers with a desire to smoke weed likely already had a way to do so – over 80% of high school seniors indicated marijuana was “easy” to get. Additionally, both Washington and Colorado’s rates of traffic fatalities have remained mostly stable.

Despite a steady progression towards state-level legalization, the federal government has attempted to walk an awkward line of granting jurisdiction to the states while still maintaining a federal prohibition. In 2009, the Obama Administration instructed federal prosecutors to not prosecute those growing medical marijuana in states that had recently legalized the practice. However, even with that directive, there have been a number of big cases highlighting the discrepancies between federal and state marijuana laws. Just last year, the Colorado Supreme Court ruled in the landmark decision of Coats vs. Dish Network that employees could be terminated for using medical marijuana despite it being legal in the state. The court found that Dish was justified in terminating Mr. Coats because his usage of medical marijuana went beyond “lawful activity” – not at the state but at the federal level.

The Obama Administration and Department of Justice have noticeably taken a backseat within the changing landscape of marijuana across the country. By leaving federal prohibitions on the books while simultaneously not enforcing them, the administration seemingly wants to observe how the rapidly changing issue plays out in the states before stepping in itself. But as Obama, whose position on marijuana hardly represents that of the more liberal branch of his party, leaves the White House, so does his particular non-engagement strategy; President-elect Donald Trump seems unlikely to be legal pot’s next champion, and could take steps in the opposite direction.

With the data coming out of states with legal usage not showing the apocalyptic deterioration of Western society that opponents sought to paint, any future President would face pushback for strongly opposing federal legalization. As of 2016, a record-high 61% of Americans believe marijuana should be legal. Youth support drives this high percentage, but there is also significant intersectional appeal. Small government Republicans, Gary Johnson Libertarians, and liberal Democrats have all found common ground on legalization despite growing political polarization on other issues. Nevertheless, social conservatives remain a notable sect of opposition. Granted, scientific data to support marijuana’s alleged medical benefits remains scant, and so does any scientific data against alleged addictive qualities in the drug. Herein lies the problem: neither side has indisputable evidence to support their position.

The federal government’s inaction on marijuana has left the substance in a legal limbo

Given where public opinion stands and absent a fundamental shift in the research coming out of Washington and Colorado, the federal government should leave the issue entirely to the states. With the cards stacked the way they are, it makes little sense for the federal government to hold its current position. For the federal government to classify ‘marihuana’, as it’s written in the federal code, with the likes of heroin not only constitutes a disservice to the millions that employ the drug for genuine medical purposes, but also serves as a reckless misrepresentation of the substance to the broader public.

Fortunately, action can and should be taken that wouldn’t even have to involve Congress. A reclassification of the drug along with a reaffirmation by the attorney general to leave the states alone could reframe the entire issue out of the legal limbo it currently resides. Because marijuana is classified as a Schedule I substance under the Controlled Substances Act, the federal government’s position is essentially that the drug has no medical use. While rescheduling marijuana to a Schedule II substance would still leave it on par with the likes of Adderall and OxyContin, it currently resides in the same classification as heroin, so that would be an improvement. Therefore, the Justice Department has the legal right to prosecute states that are not in compliance with federal law.

While the DOJ has stated it would only intervene if health or safety problems emerge or states refuse to regulate the substance ‘properly’, it still retains the right to prosecute under ambiguous circumstances. Considering that President-elect Trump’s Attorney General nominee, Jeff Sessions, believes that “good people don’t smoke marijuana,” the Justice Department very well could defy the will of the states and crack down on recreational and medical marijuana use. In addition to the fact that such a move would defy decades of small government conservative orthodoxy, such action would likely be politically problematic.

So, when considering the American public’s heterogeneous opinions on social issues, the federal government should take a back seat and delegate the issue to the states. The debate over marijuana legalization should be played out, examined, and researched in socially liberal “laboratories” like Colorado, California and Washington. It may be many years before the US categorically embraces or denounces marijuana legalization, due to the dearth of conclusive research and the public divide on the issue. In the meantime, the federal government can take the first steps in untangling the complications and legal webs surrounding legalization by relinquishing power over the point in question back to the states.

Photo

Before hemp became known as a mascot for hippies everywhere, it was used as a crop in various civilizations around the world for more than 10,000 years. One of the first crops ever to be spun into fiber, hemp has an astounding number of functionalities, ranging from paper to food to clothing, and it is more environmentally friendly than comparable crops such as wheat or cotton. Starting in the late 1600s, hemp was a fundamental cash crop in the United States, even farmed by George Washington for the production of rope and canvas. But even though hemp seed has a THC level below 0.3 percent, which is not enough to produce a high, industrial hemp production has been banned in the US since the first half of the 20th century after federal laws were passed banning all forms of Cannabis. Despite a rocky history and an uncertain future, a revived hemp industry has the potential to create new growth in the US economy and create jobs for American farmers.

Hemp farming was first outlawed in the Marihuana Tax Act of 1937, which placed a tax on the sale of all forms of cannabis, rendering it economically infeasible to produce. As a consequence, the vibrant hemp industry quickly faded away. Later in the century, hemp was once again grouped with marijuana in the Controlled Substances Act of 1970; this time it was declared a Schedule I drug, even though it’s not potent enough to produce a high. Although the importation of hemp was legalized in 1998, it was illegal for hemp to be grown at all on US soil until the 2014 Farm Bill, which included an amendment allowing for research on industrial hemp production by states that have passed legislation to legalize hemp farming.

As a result of this new law, universities, agriculture departments, and licensed farmers in 20 states are able to start pilot programs and conduct new research. Researchers are kept under close watch of the government and DEA to ensure that the yielded hemp has low enough levels of THC to be in compliance with federal standards. On top of this, the DEA is reluctant to allow licensed researchers to import hemp seed in the first place, which means that it can take months before they can actually get the seed in the ground and begin doing fieldwork.

Despite the longstanding roadblocks facing the hemp industry, it has still managed to achieve some success:  The total value of hemp products in US is $581 million and growing. With this economic potential in mind, there exists widespread, bipartisan agreement that hemp farming could net large gains for the agricultural and manufacturing industries in the US. Hemp is multifunctional, able to be used in a wide range of products manufactured or sold in the US, including natural soaps, clothing, and even cars. It’s also a nutritious source of fiber, and it’s found in brands such as Hempzels, Living Harvest, and Nutiva. All of these manufacturers, however, have to import their hemp instead of buying it domestically.  If hemp were available domestically, which would probably be cheaper than importing it, both manufacturers and American farmers would benefit.

More companies might consider using hemp in their products if locally sourced hemp was available. Since legalizing the commercial production of industrial hemp in 1998, Canada has seen an increase in small businesses finding new ways to use and market hemp products – and most of these businesses have experienced growth. Food products especially have high potential in the US market: Manitoba Harvest, a Canadian hemp-based food company, reported 500 percent growth in sales over the past five years with about half of the sales coming from US consumers.

Less stringent marijuana laws in states across the country play a hand in changing people’s attitudes toward industrial hemp; as public opinions and state laws around marijuana change, people start to realize that it doesn’t make much sense to ban its less powerful cousin.

The legalization of industrial hemp could also seriously help American farmers: hemp seed is valued at anywhere from $477 – $900 per acre, compared to wheat, which is valued at $485 per acre. Support for this issue by organizations of local farmers has lead to bipartisan support in Congress: Senate Republicans Mitch McConnell and Rand Paul represent two of industrial hemp’s biggest supporters, largely because they believe in this industry’s potential to create jobs for their constituents in Kentucky, where the soil and landscape is a good fit for the crop. Paul argues that the new industry could help replace unproductive land that was previously used for tobacco farming and coal mining.

The growth of the hemp industry would also be a win for the environment. Compared to comparable crops like rye, wheat, and cotton, hemp tends to be more pest-resistant, friendlier to biodiversity, more beneficial for the soil structure, and more conservative of water. Hemp is a pioneer plant, which means that planting hemp in a damaged ecosystem can improve the quality of the soil and make way for new biodiversity. The industrial products of hemp are also more environmentally friendly than their alternatives: for instance, hemp can be used to create a renewable plastic compound that is much greener than non-renewable plastic compounds.

Although measures to legalize the production of hemp are supported on both sides of the aisle, Congress has been unable to make much headway. Progress has stalled on a bill Senator Ron Wyden (D-OR) proposed to remove industrial hemp from the list of controlled substances in the Controlled Substances Act; a previous version of this bill died in committee in 2014. An increase in lobbying efforts by agricultural and business organizations could put pressure on Congress to pass a more expansive law, but investors are apprehensive about investing in the industry because of the tight federal regulations and skepticism on the part of the DEA, creating a political Catch-22 that prevents any strong legislation from even getting a vote. New research about the potential impact of industrial hemp on the economy might motivate more lobbying by agricultural and business groups to legalize commercial hemp farming, which could put an end to the negative feedback loop. But in the meantime, law enforcement groups are actively fighting against legalization efforts.

Opponents of a domestic industrial hemp market are concerned that the new industry would allow farmers to illegally grow and sell illegal marijuana because law enforcement officials would be unable to differentiate between the two different plants. This problem has not arisen in Canada, which requires a criminal background check on farmers applying for licenses to farm hemp and controls the production, sale, transportation, and processing of the crop, all without overwhelming local police forces. Additionally, researchers are working to produce a variety of certified hemp seed that guarantees a THC level below .3 percent, which would make the crop much easier to regulate.

Despite the federal ban, fifteen states have already passed pro-hemp legislation. Even though these laws are largely symbolic, they send the message to Congress that the country is starting to accept the idea of American industrial hemp production. Less stringent marijuana laws in states across the country play a hand in changing people’s attitudes toward industrial hemp; as public opinions and state laws around marijuana change, people start to realize that it doesn’t make much sense to ban its less powerful cousin.

Industrial hemp farming in the US would benefit American farmers, manufacturers, consumers, and the environment. Unfortunately, because of its association with marijuana, there are still misconceptions about hemp and a serious stigma that is quite hard to overcome for some members of law enforcement – former DEA administrator Michele Leonhart commented that the lowest point in her 33 years at the DEA was when she learned that a hemp flag had flown over the Capitol on the 4th of July.  But the attitude about hemp seems to be slowly changing, and both the federal government and various state governments have taken major steps forward in restarting an industry that has been in hibernation for almost a century.

Photo

In June of 2015, when the Supreme Court finally legalized same-sex marriage, many activists began celebrating the end of the culture wars. But while many view the court’s decision as the death knell to social conservatism, narrowly winning over five justices is a far cry from winning over an entire nation. And the results of this month’s elections may prove that not only is social conservatism alive and well, but it can thrive under the right conditions: low voter turnout and a clear-cut cause around which to rally.

The Democratic Party has increasingly adopted liberal social positions as of late, seizing especially on the issues of same-sex marriage and reproductive rights to cast the GOP as retrograde with phrases like the “War on Women” or the now widespread notion on the left that Democrats have won the culture war. Partly in light of Millennials’ particularly liberal social views and young people’s importance as a an electoral constituency overall, the left has sought to turn cultural positions into wedge issues in their favor, similar to what social conservatives tried to do for the past several decades on the right. In an age of high-profile social progressivism, from Obergefell v. Hodges to a peak in support for legalizing marijuana, Democrats have taken the offensive on social issues in the belief that they enjoy majority support. But when Obama is not on the ballot, the cultural stances of liberals enjoy considerably less success. Democrats may be tempted to dismiss the setbacks experienced this November as the result of low turnout, but this constitutes only a palliative excuse; not every election is presidential, and low turnout renders the outcomes of elections no less impactful.

The Kentucky election illustrated that when economics fails to appeal to voters, social issues and religion-couched rhetoric can still work to sway an election, especially one with low turnout. While Republican Matt Bevin had pledged to run a campaign based on economic issues after he won the GOP nomination, by the fall it was clear that this wasn’t working. He was lagging just a few points behind his opponent and looked as though he may have lost what should have been an easy pick-up opportunity for the state GOP.

But in the final weeks of the campaign, Bevin seemingly experienced a change of heart on policy priorities and began talking about Kim Davis and liberal judicial overreach rather than the merits of spending and tax cuts. In his own words, “This is what moves people.” And on November third, it certainly did move some socially conservative voters to the polls, as a race that most considered to lean Democratic resulted in an eight point victory for Bevin. Social conservatism certainly wasn’t all that was at play, but in a race where turnout stood at a dismal 30 percent, those votes could make the difference. And when social issues did enter the conversation, they weren’t boosting liberals, no matter what the Supreme Court’s decision on marriage might imply about progressivism in the US.

In these low turnout elections that favor older, more socially conservative voters who show up at the polls even when their young, more socially liberal counterparts don’t, the results are consistent.

An even clearer example came from Houston when voters directly voted down an equal rights ordinance prohibiting discrimination against 15 protected classes, including age, race, sexual orientation and gender identity, known as the Houston Equal Rights Ordinance (HERO). The measure had the backing of the business community and most of the local government, and was even leading in the polls prior to the vote. Nonetheless, in part due to a conservative coalition that played upon fears of trans people and the notion that the ordinance would allow “perverts” and “the mentally ill” to use the women’s restroom as a location for assault, it failed by a wide margin of nearly 2-1. Just as in Kentucky, a close race in which Democrats and their favored issues were ahead in the polls ultimately went the way of social conservatives by a solid margin. In these low turnout elections that favor older, more socially conservative voters who show up at the polls even when their young, more socially liberal counterparts don’t, the results are consistent. In fairness, the DNC has recently made some progress toward rectifying the disparity between presidential and off-year elections in terms of both turnout and the skewed Republican results, but so far the efforts have been mostly lacking, and the Party appears to still have a long way to go.

As further evidence of this, in Ohio, voters resoundingly rejected an initiative to legalize recreational marijuana, an issue that began to gain momentum after voters approved legalization in Alaska, Colorado, Oregon and Washington. It is worth noting that factors beyond social conservatism affected the outcome at the polls; in particular, the organizational apparatus that Issue 3 would have instituted, bestowing the exclusive right to cultivate marijuana upon a cartel of investors backing the legalization measure, rankled voters. Ohio was asked to jump from prohibition to legalization without passing through the middle ground of medical marijuana, in which the other states to consider legalization have all initiated their progression on marijuana policy. In the words of University of Cincinnati’s David Niven, “We are not California. We’re not the vanguard of hippiedom . . . It’s a leap to go from no legal marijuana to full legal marijuana.” And certainly, Buddie, the initiative’s superhero-like mascot with a head shaped like a marijuana bud, did little to endear Issue 3 to more conservative voters.

But perhaps most importantly, legalization was on the ballot in an off-year election, when every other state to legalize marijuana has capitalized on the higher voter turnout of even-year contests. Facing an older and more conservative electorate than that attracted by high-profile elections, comprised of voters who tend to be far less amenable to legalization, Issue 3 became another casualty of low turnout and the attendant resistance to social liberalism.

Even as abortion remains legal (though not free from attempts at restriction), support for same-sex marriage and legal marijuana remain at all time highs, and the 2016 race seems less centered on social conservatism than some recent election cycles, the nation’s present cultural leanings do not mean that social conservatives have lost power or that their voices won’t be heard. Instead, social conservative activists have learned to play their hand and strike when few are looking, or for that matter, voting. Low turnout elections that the majority of the electorate seems unaware of or uninterested in are opportunities social conservatives have come to take advantage of, rolling back LGBTQ+ rights, fighting marijuana legalization, and pushing back against what they see as a tide of social liberalism forced upon the nation by out-of-touch Democrats. Liberals may be content to rest on their laurels given the current state of play, a world in which same-sex marriage has gone from a toxic issue to political winner in less than a decade and the “War on Women” has become an oft-repeated slogan for beleaguered Democrats in battleground states. But that world is one in which the majorities that support socially liberal issues show up to vote. If they don’t, then liberals may have little to celebrate in the near future.

Photo

John Hudak is a fellow in Governance Studies at the Brookings Institution. He is an expert in campaigns, elections and presidential power. He is the Managing Editor of the FixGov blog and the author of “Presidential Pork.”

Brown Political Review: You’ve written that marijuana policy will be a key topic of discussion in 2016. Why is that?

John Hudak: A lot of states right now allow marijuana in a variety of ways — either through decriminalization, medical marijuana or access to recreational marijuana — and this is creating serious legal, constitutional and federalism questions. These are not just state-level issues, but also ones that the next president will have to address. Marijuana policy is unique in the sense that it doesn’t cut nicely across party lines. There are Democrats who don’t like legal marijuana. There are Republicans who don’t like legal marijuana. And there are Democrats and Republicans who are perfectly fine with it. It creates this odd dynamic in American politics that we don’t often see. It allows candidates, particularly Republicans, the ability to distinguish themselves from each other. In a competitive presidential primary, with a party that tends to agree on almost everything, any chance that a candidate has to say “I’m different” is an opportunity to get votes.

BPR: What is the ultimate goal of legalization?

JH: When you look at a social issue like abortion, it’s fairly black and white. On marijuana, however, different groups of people support legalization for different reasons, which makes it a unique issue for a policy discussion. Some people see it as a way for states to get tax revenue in order to balance budgets and extract money in a legitimate way from a system that otherwise would operate illicitly. Other people want legalization because they see it as a freedom issue. A lot of Libertarians think that it’s just not the government’s business to regulate what drugs you use. I think in general, though, most people want to see the black market displaced and to remove the criminal element from the production, sale and distribution of cannabis. I think there are also greater guarantees for users that they are getting a safe, regulated and consistent product in a legal market. Those are types of regulated certainties that consumers want, whether they’re buying marijuana, ordering a cocktail, ordering a pizza or buying a car.

BPR: What will we see happen with immigration reform in the year leading up to the election?

JH: Immigration reform in Congress is dead in the water. There won’t be enough votes in the House to pass it. So it’ll definitely be an important issue in 2016 for both sides. For Democrats, this is an issue that they care deeply about. They almost unanimously feel that the President’s actions are important, and that the people who are covered by the President’s orders need the type of protection that those orders offer and that the system needs to be reformed. This is also true of Secretary Clinton, who is the likely nominee. For Republicans, this is interesting because they get multiple things from this policy. Republicans almost unanimously think that the President overstepped his bounds…and so they are coming out against his reforms on technical or procedural grounds without necessarily passing judgment on the substance of the policy. The substance, however, is one of those areas where there is a little diversity among Republican candidates. There are some Republicans that are in favor of comprehensive immigration reform and several who are opposed. There are a couple of politicians who have had multiple positions on it. And like marijuana, maybe to a lesser degree, immigration gives candidates an ability to distinguish themselves from each other, making immigration a bigger issue in a presidential campaign.

BPR: Will Republicans use immigration issues to court the Latino vote?

JH: It’s tough for Republicans because the party as a whole tends to be opposed to comprehensive immigration reform, and the issue is important to the Latino community. I think voters tend to hold parties accountable as a whole. So if you’re a Latino voter and you look at a stage of Republican candidates, a majority of them are against immigration reform and a couple of them are for it, so it’s going to be hard to pick among the Republicans. It’s going to be the easier choice to vote Democrat. Now if there is a Republican candidate who is in favor of immigration reform, then Latino voters face a more difficult choice. At the end of the day, I think there is real skepticism among the Latino community about a Republican president’s ability to push for immigration reform. Frankly, the Republican primary may hurt Republicans among Latino voters. I think 2012 was a pretty good metric of how Latinos are going to vote in 2016.

BPR: How should Republicans handle other divisive social issues like gay marriage or abortion?

JH: Republicans are in a bit of a tough position because, while I do think that they want to try to appeal to some of these nontraditional groups who aren’t committed to them, like Latinos, African-Americans or younger voters, they’re hampered in a pretty serious way because the messages that tend to resonate with those groups do not resonate with the base of the party. It’s going to be hard for Republican candidates to take strong views on key social issues in ways that will connect with some of these other demographic groups without offending their base voters. If you can’t talk about social issues in a way that garners favor among all the groups that you want, you’re often better off just not talking about them. That’s of course hampered by a crowded primary where candidates want to talk about those issues and also by other events of the day. For instance, Republicans in 2012 largely avoided discussing gay rights, but now with the passage of the Religious Freedom Restoration Act in Indiana and other similar legislation elsewhere, those issues get forced into the conversation in ways that Republican candidates can’t avoid.

As Colorado adjusts to the many changes brought about by the legalization of marijuana, supporters and skeptics across the country continue to scrutinize the effects of legal pot. While there have certainly been benefits — the drug is a green gold mine for the state — there are also some more sinister effects of the policy change stewing. It is becoming increasingly clear that those most harmed by the old system will reap the fewest rewards from the new.

Colorado’s legalization has weeded out some of the state’s defunct War on Drugs policies and served as a boon for Colorado’s coffers: A report published by the governor’s office in February projects that the state will gain $98 million in tax revenue this fiscal year from recreational and medicinal marijuana, with potential law enforcement savings ranging from $12 million to $60 million. But these benefits do not affect all Coloradans equally. Though legalization means that fewer individuals from socioeconomically marginalized minorities are being incarcerated for minor drug crimes, legalized marijuana has failed to actively assist the communities most harmed by the War on Drugs.

Michelle Alexander, an associate professor of law at Ohio State University, explains in her book, “The New Jim Crow,” that drug laws disproportionately target black communities. Between 1986 and 2010, Colorado’s police arrested African Americans for marijuana possession 3.1 times more than whites and arrested Latinos 1.5 times more than whites, even though these two minority groups have a lower rate of drug use than their white counterparts in the state. Decades of legal discrimination — including lengthier prison sentences for nonwhite drug offenders — have exacted a toll on these communities that cannot be undone by simply ceasing to discriminate. So while the legalization of marijuana possession certainly protects minorities from arrests for drug possession, Colorado must do more to address the past and present racial injustices caused by its drug laws.

In fact, it is Colorado’s white citizens who have most benefited from the state’s legalization movement. White residents tend to be wealthier, which gives them more access to the advantages of legalized weed. In 2012, the poverty rate for white residents in Colorado was 7.5 percent, compared to 23.4 percent for Latino residents and 22.2 percent for black residents. This inequality means that blacks and Latinos continue to face barriers to entry into the legal marijuana market as consumers and, as a result, still have to resort to unlicensed, illegal dealers. Due to high excise and sales taxes, legal marijuana is pricey — on average, an ounce of legal weed is approximately $220, but it can cost upwards of $300. Street prices hover around $160. Low-income smokers are left with only two options: buy illegally or go broke. The Marijuana Policy Project estimates that this year, 40 percent of Colorado residents seeking to purchase marijuana will choose the illegal option, and, as such, unlicensed dealers will remain on the black market to supply that demand. This leaves communities of color with many of the same pernicious effects of illegal drug dealing — gun violence, theft and murder — that existed during explicit marijuana prohibition. Community activist Rudy “Reddog” Balles commented to The Washington Post that he doesn’t know “who is buying for recreational use at dispensaries unless it’s white, middle-class people and out-of-towners.”

Socioeconomic barriers also prevent many illegal dealers from transitioning into the legal market as suppliers. The cost to apply for a legal retail marijuana establishment alone is $5,000, and individuals convicted of a drug felony in the past five years are barred from applying. These restrictions make it much harder for illegal sellers, often minorities, to transition into the legal market. The system instead provides opportunities to established business owners, who are often white and have already accumulated capital and experience from other fields.

At its core, the problem with marijuana legalization is the assumption that it will change mass incarceration and underlying systems of inequality. Legalization lacks not only the intention, but also the ability, to do either. Because the law is not retroactive, Colorado’s new policy will not change anything for the 210,000 people arrested in the state for marijuana possession between 1986 and 2010. Furthermore, legalization does nothing to affect the underlying economic structures that drive people into illegal dealing, nor does it shutter their markets. As Mariame Kaba, founder of Project NIA, which works to lower youth incarceration rates, explains, the presence of drug dealing as a viable economic option signals a lack of safer business opportunities and capital investment in minority communities. Marijuana legalization in and of itself, and drug legalization in general, is helpless to address these structural issues.

Currently, the majority of tax revenue from legal marijuana sales has been directed towards substance abuse treatment and marijuana use prevention for children. This spending shows that the state is more interested in limiting the potential negative effects of marijuana use than it is in addressing the larger problems of mass incarceration and racial inequality. Legalization could promote racial justice more effectively if the revenue and savings were used to combat the root causes of the black market for drugs. As analysts look back at the crucial beginnings of legalization in Colorado, they must do so with blunt attention to class and race — and with a willingness to push past a system that creates a black market for some in favor of one that embraces legalization for all.

Art by Julia Rosenfeld.

Art by Olivia Watson
Art by Olivia Watson

Four years ago, then-Mayor John Hickenlooper leveraged his popular, quirky image to catapult himself out of Denver’s city hall and into the Colorado governor’s mansion. However, the several pieces of peculiar legislation that have weeded their way onto Colorado’s books during his tenure may be hurting Hickenlooper’s chances at re-election. Much of the frenzy has surrounded one of these creepers: Amendment 64, which, on November 6, 2012, created a legal, regulated market for marijuana.

Hickenlooper’s midterm re-election campaign was once considered an easy win for the Democrat, but that is no longer the case, with his approval ratings now below 50 percent and his Republican challenger, Bob Beauprez, steadily gaining ground. Some have attributed this shift to gun control legislation that has drawn bipartisan criticism, the installation of new and unpopular income taxes or the aftershock of a recall election that ousted two Democratic state senators. But nothing has affected the governor’s reputation quite as much as his status as steward over the first state to legalize the recreational use of marijuana — and it turns out that the citizens’ highs may have taken Hickenlooper to his new lows. As such, figuring out how Coloradans have reacted to this legislation can help us understand the changing perception of their governor as well.

Hickenlooper is a notorious progressive and boundary-pusher. Before his political career, he was the first microbrewer in Colorado. Presiding over his citizenry’s legal highs was not the only extension of that reputation into his governorship. Under his administration, the state of Colorado has legalized gay marriage and built upon its reputation as a leader in energy conservation and renewable clean energy, among other things. Despite this record, he opposed the legalization of recreational marijuana in Colorado while it was being considered through the state’s referendum mechanism. When the referendum passed, Hickenlooper was left with a legacy he didn’t ask for, as well as a political reality he did not want — one requiring immediate attention.

Hickenlooper has noted that Colorado’s legalization is “one of the great social experiments of the 21st century.” But the Governor has been able to use his experience as a pioneering microbrewer to craft an informed response to Amendment 64. Hickenlooper noted recently that when he opened his business there were a lot of “hoops” to jump through, which made sure his production process was of a high enough quality to ensure the safety of consumers. The governor wants to be “no less rigorous with the marijuana industry.” Entirely new positions within the administration, like a Drug Policy Coordinator and a Director of Marijuana Coordination, were created in order to monitor the effects of the referendum, to make policy recommendations and respond to constituent concerns. The goal was to quickly determine the best ways to regulate recreational marijuana. To justify the cautious yet firm way his administration has been responding to the changes in the state, Hickenlooper has noted that Colorado’s legalization is “one of the great social experiments of the 21st century.”

And despite the many pitfalls that can plague such extensive government action — and the fallout that many pundits and critics predicted — the experiment is going well. Overall and violent crime levels have decreased, and since Coloradans are smoking their way through literal tons of pot, $35 million has been raised in tax revenue in the six months since the legalization of recreational marijuana. Yet, at the same time, the media has been preying on the rare, negative stories related to recreational use of the drug. One man murdered his wife after consuming weed-laced candy, while a college student who consumed six times the suggested maximum amount of marijuana edibles jumped off of a building and incurred fatal injuries. Such instances are undoubtedly tragic, and they reflect the need for smart regulation of recreational marijuana. But nuance is neither the forte nor interest of sensationalist news agencies, and even in light of Amendment 64’s many successes, for some voters, these stories have permanently tainted the picture of pot’s effect on the state.

With the media’s smoky forecast for the highest state (in terms of altitude) and its experiment with marijuana, Hickenlooper is in a difficult position. His measured efforts to handle his marijuana legacy — like his regulatory task force — are overshadowed by sound bites and talking points. These popularized failures have given the Beauprez campaign another point with which to attack. In a recent criticism meant to reference marijuana’s legality, Beauprez claimed that Hickenlooper has been “the most extreme governor in our state’s history.” To add to his woes, the governor has also become the point-person for all things marijuana-related in Colorado. He was interviewed by Katie Couric about the topic earlier this month, and is often cited by writers on the topic. While the majority of Coloradans still support legalization of marijuana, 51 percent of voters in the state now say that the law is bad for Colorado’s image. In short, any poor press for marijuana in Colorado is poor press for John Hickenlooper.

This perception problem has made Beauprez — clean-cut veteran, former farmer and father of four — seem like a welcome, all-American respite for many of Hickenlooper’s former supporters. But the governor’s pot problem extends beyond just perception. While the legalization of marijuana in Colorado might still remain popular among young Boulderites and Denver residents, and certainly with curious tourists, the smaller, conservative towns of Colorado have balked at this urban liberalism. Many rural Coloradans have been avidly fighting back against legalization in their own towns and counties. Many communities voted to ban shops selling recreational marijuana, limiting the cities where such shops could actually open to only a handful of areas. Support is low amongst these residents and, to them, legalization is only the latest chapter in a set of slights from the Denver elite that Hickenlooper represents. In fact, 11 rural counties in Colorado have considered seceding from the state due to what they perceive as overwhelming liberalism wafting out from the state’s capitol. The reasons behind this push for “New Colorado” include almost everything that has made Hickenlooper’s administration seem progressive, with marijuana legalization near the top of the list. If Hickenlooper can’t stymie the public relations nightmare of ganja-fueled misconduct, it could add fuel to the fire of rural discontent and turn him into a one-term governor.

If Hickenlooper is ousted, it could mean a serious delay for drug liberalization movements. Other states pondering whether to follow in Colorado’s hemp-shoed footsteps will be watching this election closely. If Hickenlooper is ousted, it could mean a serious delay for drug liberalization movements. Politicians frighten easily, and if a once highly popular governor was ejected from office — even remotely because of his connection to legalizing recreational marijuana — roadblocks could pop up throughout state legislatures fearful of political consequences. And if any further pushes for marijuana legalization are to happen, it seems that they will need to be even more thought-out and cautious — and any politician that wants to spearhead these efforts must be prepared to win an arduous battle with the media.

It comes as no surprise then that Hickenlooper himself has urged caution to other states that seem to be on the brink of pursuing the legalization of marijuana, saying, “The jury is still out on this thing.” But the jury isn’t only still out on the effects of marijuana on Colorado — it is also deliberating whether Amendment 64 will steal Hickenlooper’s governor’s seat. If it does, it wouldn’t be surprising if US politicians pass on the legal joints for the time being.

 

Ed Rosenthal, well-known marijuana legalization activist.
Ed Rosenthal, well-known marijuana legalization activist.

The Emerald Triangle has been looking more brown than green recently. With California en route to what may be the worst drought in 500 years, the Emerald Triangle — Mendocino, Humboldt and Trinity counties — is drying up alongside the rest of California. But the Emerald Triangle has a particular problem: it’s the seat of California’s biggest, quasi-legal cash crop — marijuana — and it’s using up millions of gallons of water while at the same time generating millions in revenue and contributing to the production of medical marijuana for half a million people. In Mendocino County, County Sheriff Tom Allman estimated that water thieves could be making off with as much as five million gallons of water a day. With some rural California counties in danger of running out of water in anywhere from 60 to 120 days, the illicit use of water in this way is something the environment simply cannot afford.

The liberalization of Americans’ views on marijuana — for the first time a majority of Americans, 58 percent, favor the legalization of marijuana — happens to have come at a time when climate change is increasing the frequency, severity and duration of droughts nationwide. The situation is especially dire on the West Coast where most marijuana is grown. As marijuana becomes medically and recreationally legal throughout the country, growing operations increase and so does their water use in drought-stricken states. But because marijuana use remains illegal under federal law, states like California cannot regulate or impose environmental restrictions on growers that would regulate water, fertilizer and pesticide use.

The federal government has an interest in letting the marijuana industry flourish, especially in the recovering economy. The Emerald Triangle produces California’s biggest cash crop, worth $14 billion in sales since 2009, and generating $200 million in state medical marijuana sales taxes. And if California legalizes marijuana for recreational use it is projected to bring in $1.3 billion in much needed revenue. In Colorado, the recent legalization of recreational marijuana by the state could add upwards of $100 million dollars to its coffers and reach $1 billion in sales. The cash injection to Colorado’s economy in the first few months of legalization has Congress people in cash-strapped states like Rhode Island submitting legalization bills. Yet it is important to note that despite the increased number of states legalizing medical or recreational marijuana, the drug remains illegal on the federal level both medically and recreationally.

As marijuana becomes medically and recreationally legal throughout the country, growing operations increase and so does their water use in drought-stricken states.

But this increase in state-level legalization means an increase in production and an even more pressing need for regulation. As the nation steadily moves towards further legalizing marijuana, while at the same time grappling with the effects of climate change and historic droughts that affect all aspects of life — crippling the agricultural industry and leading to record breaking wildfires — it is imperative that the federal government allow states to regulate the marijuana industry and lift it from its quasi-legal status. While the federal government has chosen not to crack down on many medical and recreational marijuana-growing operations in states where the practice is legalized, it has, in the past, used states’ attempts to regulate the industry to gather information on growers and conduct federal crackdowns. Federal crackdowns using information collected for regulation purposes have led to a fear of regulation within states like California.

Allowing regulation would help states to continue reaping the millions of dollars they collect in tax revenue from the marijuana industry, much needed cash in this time of economic crisis and ensure that the thousands of Americans who now rely on medical marijuana have access to their medicine at affordable prices.

A July 2012 Humboldt Country report acknowledges that the “creation or regulation, local ordinances, and other oversight tools for the emerging industry are lagging well behind,” because of the quasi-legal status of the industry.  As a result of lack of regulation, marijuana growers divert water from rivers and streams, or dig their own illegal wells. This water diversion has led to uncontrolled use of water, with one plant using as much as 900 gallons in a season, and resulted in stream beds running dry during the growing season, endangering animals like the coho and chinook salmon.

The complete lack of regulation has seen unscrupulous growers use pesticide fences to ward off or kill animals that damage the crops, store and use dangerous pesticides in unsafe ways and litter their unkempt properties with “grow trash” and raw sewage. This is not to say that there aren’t ethical growers who harvest water during the winter and respect the environment, but those who fail to do so are numerous enough to consume 20 to 30 percent of water in local streams during the growing season, which also happens to coincide with the dry season: April through October. Dale Gieringer, an economist for the marijuana legalization advocacy group California’s National Organization for the Reform of Marijuana Laws (CA NORML), blames the harmful lack of regulations directly on the federal government: “U.S. government is directly to blame for [ending] established efforts to regulate outdoor growth.” Gieringer emphasizes the regulation of outdoor growth because indoor growers in Southern California use high-tech indoor grow operations that use a lot of electricity but much less water.

In Mendocino County, where the majority of growing operations are outdoors and expanding, the sheriff attempted regulation to much success before the federal government shut down the operation. Mendocino’s sheriff, Tom Allman, originally attempted instituting regulations in 2010 on the basis that regulating the number of plants a grower could have would cut down on wasteful calls to the police department from concerned citizens who saw marijuana growing from “property line to property line” and save resources. The regulatory system granted licenses to individuals with medical marijuana licenses, allowing them to grow at most six plants — the state-regulated number. It also allowed cooperatives made up of at least five patients to grow 25 plants per patient, as long as the plots were secured with six-foot fences and locked gates. The application process incurred a fee of $1,050, and once an application was accepted the grower was allowed to buy 99 zip ties per cooperative (where one zip tie per plant was required, which cost $25). There would be an additional $600 fee per cooperative for monthly inspections to ensure the appropriate use of water and electricity. Allman estimated that the total cost of regulated plants for growers would be between $7,500 and $10,000 per coop member.

Despite the cost, the success of regulation in Mendocino Country proves that many growers are willing to pay for regulation and the assurance that they aren’t acting in a legal gray area. Only one year after it began, Allman’s program had sold $110,000 worth of zip ties — or 4,400 plants worth — enlisting nearly 100 growers and bringing in a total of over $600,000 in much needed funds to the county.

But then, right as the regulation program was taking off, the federal government intervened, subpoenaing Mendocino County for the records of registered growers and eventually winning in court. With that the regulation program shut down and the 100 or so regulated growers were forced underground, fearing that Drug Enforcement Agency (DEA) agents would come knocking on their doors. Adam Wolf, the attorney representing two groups opposing the subpoena explained that, “the message this sends to people across the state trying to comply in good faith with medical marijuana regulations is that they should operate below ground.” The federal crackdown shattered the increasing trust between the growing community and law enforcement in Mendocino.

The environment wasn’t the only loser after the federal crackdown: not only do the underground growers harm the environment, but they harm consumers as well. As Gwynn Guilfurd explains in her revelatory article for Quartz, the deregulation also harmed consumers who could no longer count on purchasing pesticide-free, regulated medical marijuana. Not to mention that the deregulation caused the loss of hundreds of thousands of dollars in revenue for the county — revenue that seemed to only be increasing.

The harm to consumers didn’t stop with the deregulation of pesticide use. As deregulation leads back to harmful cultivation practices that exacerbate the drought, marijuana patients will see the cost of their ‘medicine’ rise. Ed Rosenthal, well-known marijuana legalization advocate, has predicted a doubling in prices due to the drought. While some of those subject to higher prices will be “potheads” with dubiously acquired medical cards, others will be cancer patients, multiple sclerosis patients or those suffering from chronic pain who rely on medical marijuana to lead a more comfortable life free of pharmaceutical drugs.

While the regulation and taxation of marijuana might force some out of the industry and incur deadweight loss for cheap consumers and producers, the benefits of regulation (environmental protection and consumer protection) far outweigh this harm. This is especially true when considering that low-cost producers are probably growing at the expense of the environment and using toxic pesticides that could harm consumers.

The federal government has found itself at a crossroads: confronting a wave of states that have legalized medical marijuana and are now moving towards recreational legalization while at the same time climate change worsens droughts in the very states that are seeing the marijuana industry boom — California, Colorado and New Mexico. Marijuana has proven to be a veritable cash cow for states like Colorado and California, which have just barely begun to make it out of the recession — bringing in $14 billion in sales in California since 2009. With an increasing portion of the American population favoring legalization, it is hard to see the legalization trend regressing.

In order to ensure that growers don’t abuse their land and worsen precarious environmental conditions, make sure that those who rely on medical marijuana are receiving a reliable and affordable product and to continue putting money in strapped state coffers, the federal government should stop cracking down on regulation attempts and reassure states that they will not intervene in renewed state-level regulation efforts. Counties already have a highly functional model in what Sheriff Allman instituted in Mendocino. By allowing state regulation without interference, the federal government would ensure that the Emerald Triangle and other counties will start looking a little greener again.

October is proving to be an exciting month for congressional spectators. In several weeks Congress will vote on raising the debt ceiling, in the process Republicans will try to finagle spending concessions out of federal programs dear to Democrats. But before all this takes place the nation will see how the government shutdown showdown concludes as a handful of Republicans make a stand against Democrats’ most recent expansion of federal reach, the Affordable Care Act.

Watching this transpire paints Democrats as defenders of big government and big spending, which indeed has been the case in the past decades. The Democratic Party has relied on the federal government to secure a multitude of major liberal measures it has pushed for in recent memory. This legacy began with the New Deal; under FDR the United States became one of the first liberal regimes to provide welfare to its people. Thirty years later Great Society legislation transformed Civil Rights from a states’ issue to a national concern. LBJ’s legislation established a groundbreaking achievement that extended federal protection of the rights of racial minorities.

Turning to the federal government for reform has proven successful for Democrats: in the past century the federal government has virtually transformed itself, running programs to combat poverty and provide an economic safety net to citizens, and taking on the responsibility of dismantling segregation and other forms of institutional racial discrimination. We have yet to see if health care reform will follow in the footsteps of the New Deal and the Great Society by transforming the federal government’s relationship with American citizens, but the future of liberal legislation may follow a path less traveled by the Democratic Party.

Last week I wrote about the progress gun control advocates have achieved in states like California, Colorado, New York and Connecticut. The fights for marijuana legalization, gay marriage legalization, and gun control have in the past decade made significant progress at the state level revealing the promising frontier state legislation presents liberal causes. Though this strategy deviates from Democrats’ historic reliance on federal action, recent events point to an era of Democrat backed federalism.

August marked a major victory for those in favor of marijuana legalization: the Department of Justice, citing limited resources, announced it would not block state laws legalizing marijuana. This applies to the 18 states (and the District of Columbia) where the medicinal use of marijuana is legal, as well as Washington and Colorado where marijuana has been decriminalized. The policy is contingent on the industry being regulated to prevent drug use by minors and cartel or gang activity. Nonetheless, the Marijuana Policy Project called the announcement “historic.” The door has swung wide open to Colorado and Washington to license and tax the sale of marijuana, and similar voter initiatives on other states on hot on their heels. The MPP declared support for voter initiatives in Alaska, Arizona, California, Maine and Nevada in 2014 and 2016; the not for profit policy group hopes to legalize marijuana in 10 more states by 2017.

Same-sex marriage proponents also celebrated a major win this summer: in June the Supreme Court struck down the Defense of Marriage Act, permitting legally married same-sex couples the same federal benefits of married heterosexual couples, and invalidated a California law banning same-sex marriage in the state. Despite the Supreme Court victory, more progressive federal measures on the issue – such as Congressional legislation defending marriage equality – are unlikely. However legalization of same-sex marriage in individual states has recently gained momentum. Currently the District of Columbia and 12 states permit same-sex marriage, Washington, Maine, Maryland, Delaware, Minnesota and Rhode Island joined the ranks only in the past 11 months.

The challenges federalism presents as a political strategy for marriage equality and marijuana legalization have become evident following the progress both causes have achieved in states. The Department of Justice’s new policy, though it permits the development of the marijuana industry in states where the drug is legal, leaves the trade on unsteady ground. The executive branch is simply ignoring a conflict of state and federal law: Seattle Marijuana Defense Attorney Douglas Hiatt voiced concerns about the future, “Is a new administration just going to come in and shut it down?” For proponents of marriage equality, federalism condones state-led discrimination against homosexuals and conflicts with the historical context of civil rights being addressed by the federal government.

Nonetheless, the immediate future of both left-wing causes seems to lie in the states. The United States has a long-standing history of individual states acting as laboratory grounds for innovative policy. Colorado and Washington’s decriminalization laws seem quintessential examples of the concept. The two progressive states will inevitably be looked to as models in the future for marijuana legalization and regulation. In contrast it’s unlikely that supporters of same-sex marriage will be satisfied with the state-by-state expansion of legal same-sex marriage in the U.S., however. As long as they argue that marriage is not a social experiment but rather a right that is currently withheld from a minority of American citizens, nothing short of federal protection will be adequate.