The Politics of Proposition 19

Marijuana legalization hits the big time


It seems quite possible, even likely, that California's historic Proposition 19 to legalize adult possession and growing of marijuana will actually pass in November. The arguments against the ballot measure—both its alleged socially damaging effects and its alleged unconstitutionality—are weak and unconvincing to anyone not already prejudiced against pot.

Polling in support of the measure is consistently at or near 50 percent (though often within the margin of error in either direction), with the latest from the Public Policy Institute of California clocking it at 52 percent in support. Opposition is out there, publicly represented by a rather goofy reverend with a checkered past, but that opposition has been so far restrained and not willing to spend much money. The most prominent anti-19 campaign, Public Safety First, has spent just under $200,000 this year and is sitting on only $54,000 right now.

The group's largest contributions come from organized police groups (and a notorious 10 grand from California Beer and Beverage Distributors, though as one pro-19 activist told me, in organized political philanthropy that amounts to more like "go away money" than a concerted attempt to beat 19). Last-minute cash dumps can snatch defeat from the apparent jaws of victory when it comes to controversial legal and social change via citizen initiative, but for whatever reason no organized interest group that pro-legalization activists might have feared, from the Chamber of Commerce to organized parents groups, have tried to scuttle the ballot initiative.

Proposition 19 will legalize possession and growth (within 25 square feet on your property) of pot for adults, legalize possession of pot growing and consumption paraphernalia, and leave it open for localities to develop a regulatory system for sales and to allow sales or growth higher than the state limits of an ounce for possession and sales and 25 square feet of growth.

Localities are also permitted to not adopt the provisions of the proposition, a political maneuver that allows proponents to be respectful of local mores and that will certainly guarantee that—as is common with alcohol—California will become a patchwork of different county and local approaches to availability and regulation. Localities will also be able to tax and impose license fees on any of the newly legal pot-related activities.

According to the letter of the proposition, nothing about the current medical system created by California's Proposition 215 should change, although a loud but likely small minority of interests entrenched in the current medical system are campaigning against Prop 19 to the very constituents who might be naturally thought to support it: pot users that are already medically legal, some of whom fear—though their fears are not borne out by the actual proposition language—that it could actually weaken medical patient access to marijuana. Stephen Gutwillig of the Drug Policy Alliance (DPA), which is working to pass Prop 19, says that the medical controversy is "an intra-community squabble that won't impact the outcome."

Proposition 19 is the brain and cash-child of Oakland's Richard Lee, himself a medical marijuana entrepreneur through Oaksterdam University. As I found during my research into the Los Angeles medical marijuana world, there were doubts from the beginning about Lee's efforts among other big-deals in the pot reform movement; indeed, the largest medical interest group, Americans for Safe Access, remains on the sidelines in the fight.

Lee's Yes on 19 campaign, which will likely have spent around $2 million from start to finish, has other national drug law reform groups behind him now, including the oldest player in the game, the National Organization for the Reform of Marijuana Laws (NORML), and the George Soros-funded Drug Policy Alliance. NORML's executive director Allen St. Pierre describes his group's contribution to Prop 19 as largely via access to its "opt in supporter network of 1.4 million." He says the pro-19 campaign has been "pinging NORML's network almost every day for last six months." NORML may also supply some celebrity viral video endorsements in the last days of the campaign. DPA's Gutwillig describes his group's support as "focusing primarily on building the coalition of endorsers and then messaging within the mainstream media."

Most pro-19 strategists agree that the campaign isn't going to hinge so much on swaying people to change their mind on pot as it is on guaranteeing voter turnout of their natural constituents. That will come through both traditional phone banking, viral videos, and both earned and, to the extent it is affordable, paid media. A large part of the get-out-the-vote energy is coming from the progressive web site Firedoglake in its first big foray into pure electoral politics post-Obama, through a group called Just Say Now (formed in alliance with Students for Sensible Drug Policy), which is pushing Prop. 19 and other milder pot reform measures in other states, including Oregon and South Dakota.

Just Say Now's Michael Whitney says, "Firedoglake went to our activists and readers in the spring, and 95 percent of our activist and readers said we should support marijuana reform. We are having our 100,000 activists place calls to voters" to encourage likely supporters to register, mail in ballots, go to the polls, and, especially for peripatetic students, make sure their legal addresses are up to date.

While there is plenty of coalition support now for Prop. 19, Lee's campaign was at the start very much an outsider one among the biggest pocketbooks in drug reform such as George Soros and Progressive Insurance magnate Peter Lewis. While the DPA, which has Soros and his organizations as its largest funder, is in the game with its own pro-19 committee, neither of those big guys have given much to the Yes on 19 campaign yet. Some in the larger Prop. 19 campaign speculate that they didn't want to attract the attention and possible counterspending that out of state big bucks might have engendered. Others suspect a "not invented here" syndrome, since the legalization movement did not originate within organizations the financiers knew and trusted.

Those who thought Richard Lee was, if not completely wrong, at least coming in at the wrong time, seem to have been wrong themselves. As NORML's St. Pierre says, though NORML got behind the measure when it hit the ballot, "We gave counsel to Richard Lee like every other entity in drug policy reform that this was not ideal in 2010, that there would be a better chance in 2012. And Richard roundly rejected everyone's advice. I asked him if he was OK with potentially losing most of his net worth if it fails, and he said, 'Yeah.'"

Right now, Lee is looking like some kind of political genius. As Dan Newman, an experienced Democratic Party operative working as communications director for Lee's Yes on 19 operation, explains, "We have seen a steady and consistent gradual uptick in the polls, particularly as a wave of law enforcement professionals are speaking out in support of Prop. 19. We sponsored events up and down the state in which police officers, sheriffs, police chiefs are talking about their time on the frontlines of the drug war and their conclusion that the war on marijuana has failed, and why it is time to control and regulate marijuana similar to tobacco."

The measure, Newman says, enjoys "a broad and growing coalition, leading with law enforcement pros and including California's NAACP, and SEIU [Service Employees International Union], the state's biggest labor unions, and people are responding to their message—that the war on marijuana has failed, that regulating and taxing marijuana in a manner similar to alcohol and tobacco can generate significant revenue for local communities at a time when budgets everywhere are extremely tight." No one message is the killer app for winning support for 19; in addition to arguments based on futility and fiscal probity, "law enforcement pros talk about their desire to focus on violent crimes and the fact that over 60 percent of violent drug cartels' revenue comes from selling marijuana." DPA's Gutwillig, for his part, talks of winning support from civil rights groups by emphasizing the marijuana arrest machine's disproportionate impact on black and brown citizens (even though it rarely leads to actual jail time in California, where an ounce or less is now a mere infraction).

It's a genuine people power initiative, with almost the entire state's political and media apparatus against it; Newman thinks that's all to the better. "There's a general distrust for Sacramento and the status quo that is helpful for Prop. 19." Indeed, the proposition seems to have more support than any particular politician running for state office in California this year.

What happens if 19 wins? Richard Lee will have gifted the drug reform movement with a revelation of new possibilities, and both Just Say Now and DPA are prepared to follow up with similar initiatives elsewhere. St. Pierre of NORML predicts "that if the state where one of eight Americans live, almost a nation unto itself, if it moves in this direction it will take with it the states that make up the 9th circuit within not more than two election cycles, then be bookended by New England. Then it will be decades of infilling in the middle of the country, looking similar to the now 14-year effort to infill the map [on medical pot] since Prop. 215."

But California is just California, and it will still be part of the United States of America, where marijuana will still be illegal. Although various ex-DEA heads demand it, the Atlantic magazine predicts it, and some in the drug reform movement fear it, actual federal legal action to slow or stop 19 if it passes would be absurd, says Randy Barnett (who tried and failed in the 2005 Raich Supreme Court case to overturn the federal government's ability to enforce its own laws against purely intrastate non-commerce in medical pot in California where it was legal). "I can't think of a basis on which they could sue. The crude, stupid argument is about the supremacy clause, but states are not obligated to enforce federal law." The DEA uses the (bad) analogy of Obama's Department of Justice action against Arizona over its current immigration law, but as Barnett notes, "that is trying to stop Arizona from doing something." An attempt to sue to stop 19 from going into effect "is a mandate, and the federal government can't make a sovereign legislature pass a law or a state executive branch enforce one."

This is not to say that Congress couldn't lean on California, like Congress is wont to do, by adding financial strings to federal money to try to make the state change policy, as Congress has previously done with things like the federal speed limit. The feds might also start overusing their retained power to enforce their own anti-pot laws against anyone trying to exercise the new California freedoms under 19. Such an overbearing response seems likely—Obama's own drug czar Gil Kerlikowske, says the L.A. Times, "has firmly stated that the administration will not condone marijuana's legalization for recreational purposes."

St. Pierre of NORML thinks there is one big reason to be optimistic about how Obama might react to the passage of Prop. 19: the departure of Rahm Emanuel. From St. Pierre's decades-long perspective in the drug reform movement, Emanuel " assiduously tried to avoid this subject matter and put out a political stiffarm, including on some of the Democrats' biggest funders like Soros and Lewis. He's happy to take their money then tell them to fuck themselves with a straight face." With him gone, "one of the biggest roadblocks on the executive level will no longer be there," leaving St. Pierre hopeful that the administration may let California be if its citizens vote for 19.

Despite the bizarre fantasy that somehow marijuana law reform is a Democratic Party issue, nearly every Democratic politician from Sacramento to D.C. is powerfully against it. Just Say Now's Whitney says "Democrats are running from this like from nothing else—even though turnout from 19 is probably the only reason [Democratic Senator] Boxer is going to win."

Yes on 19's Newman—a Democratic strategist himself—notes that "the conventional wisdom has proven wrong in this; this isn't a Democratic issue with Republicans opposed. There are supporters across the spectrum. And we have two leading GOP presidential candidates showing early buzz, Ron Paul and former Gov. Gary Johnson of New Mexico (who toured the in support of Prop 19)," for pot legalization.

As Newman didn't spell out, no nationally prominent Democrat is as good on the pot issue as Paul or Johnson. Whitney, whose constituency—to the extend it favors any party—leans overwhelmingly Democratic, agrees that the goal is not to have legalization be a stalking horse for pumping the Democrats, but rather to show both major parties that the pro-pot vote is strong, and "to see voters are there for the taking if either party wants to embrace" the issue.

Regardless, it's a shame that the hideous duopoly of American politics creates such false consciousness that Whitney is probably right that lots of 19 voters will vote for Democratic politicians totally opposed to their interests on an issue of paramount importance to them. I can only hope that the votes successfully brought out by the campaigns of Yes on 19, NORML, the DPA, and Just Say Now resolutely decline to vote for actual politicians—because if they are coming out to vote Yes on 19, every politician is pretty much their enemy. God bless the initiative system for giving people a direct way to go over their enemies' heads. A Proposition 19 victory will undoubtedly be an important game changer. But when it comes to the two-party system's awful powers and continued desire to arrest, fine, and ruin people for the sale and consumption of a much-used and much-beloved plant, it won't change enough.

Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).