Cannabis and Capitalism: The Horror?

The specter of Big Marijuana did not scare voters into rejecting legalization.


Three marijuana legalization initiatives were on the ballot last week, and all three won. That's a better outcome than I was expecting. I was surprised when voters in Colorado and Washington approved legalization two years ago, and I was surprised again when voters in Alaska, Oregon, and Washington, D.C., followed suit.

Partly that's because, after 25 years of advocating drug legalization (along with various other unpopular positions), I am accustomed to  losing. But it's also because I had looked at the polling data. The victory in D.C. seemed like a pretty sure thing, given the legalization initiative's 2-to-1 advantage in a September survey commissioned by The Washington Post. But the poll numbers were much closer in Oregon and Alaska.

There were other reasons for low expectations. I doubted that Oregonians and Alaskans would be eager to imitate Colorado and Washington so soon after the votes there, especially given that legal recreational sales began only this year in both states. And like the activists who are waiting until 2016 to push initiatives in states such as California and Massachusetts, I thought legalization would have a better shot in a presidential election year.

Judging from the ebullient reactions I saw on Twitter, I was not the only antiprohibitionist who was pleasantly surprised by last Tuesday's amazing cannabis trifecta. Yet anti-pot activist Kevin Sabet—who a week earlier had joked, in an interview with The New York Times, that "it looks bad; I want to be on the other team"—claimed "this was not the complete slam-dunk the legalization groups expected." Later Sabet, co-founder and president of the prohibitionist group Project SAM, told the Associated Press, "I think we've slowed the legal-marijuana freight train."

As you probably have figured out by now, I am not given to optimism about the prospects for drug policy reform. But Sabet's spin seems delusional even to me. If the legalization train has slowed, that's only because so many people are clamoring to get aboard. And if Sabet has failed to stop it, that's because he unrealistically expects voters to be horrified at the very thought of a profit-driven cannabis industry.

Sabet cites the defeat of a medical marijuana initiative in Florida as evidence that he and his allies are having an impact on public opinion. Yet the Florida initiative, Amendment 2, was favored by 58 percent of voters in a pretty conservative state. Although that was two points short of the supermajority needed to approve a constitutional amendment, it is hard to see this result as a sign that support for prohibition is on the rise.

The picture looks even worse for Sabet and his allies when you consider the numbers from NBC's exit polling in Florida, which show that Amendment 2 would have been approved if voting had been limited to residents younger than 65. The survey put support for medical marijuana at 79 percent among 18-to-29-year-olds, 65 percent among 30-to-44-year-olds, 60 percent among 45-to-64-year-olds, and 38 percent among voters 65 or older. That trend is consistent with other survey data showing that both experience with marijuana and openness to marijuana reform decline with age. Last year Gallup found that retirees were the only age group in which a majority still opposed legalizing marijuana for recreational use. As those folks die off, the outlook for prohibitionists like Sabet will be increasingly bleak.

Sabet also took solace from voter-approved bans on the production and sale of recreational marijuana in five Colorado cities. Yet the option of local bans probably improves the odds for legalization initiatives, since it reassures voters in cannabis-unfriendly communities who are put off by the prospect of a pot shop on the corner. Like Colorado's Amendment 64, the initiatives approved last week in Alaska and Oregon explicitly provide for a local option. Washington's initiative, I-502, did not, but Attorney General Bob Ferguson has said cities and counties are nevertheless free to ban marijuana stores and grow operations, which many have done. If anything, that kind of local control helps soothe voters' fears about legalization.

Sabet has tried to stoke those fears mainly by pairing the word bigwith the word marijuana, in the hope that Americans will flee in terror from the resulting phrase. "We're on the brink of creating Big Marijuana," he warns. "We know if it's legalized, marijuana will be commercialized, too," says Project SAM. "We would be incredibly naive to think a commercial marijuana industry wouldn't employ all of the same strategies to convince people—especially young people—to use marijuana."

Starting with the observation that legalizing marijuana production and distribution entails legalizing marijuana producers and distributors, Sabet warns that such businesses will make money by producing and distributing marijuana, meaning they will have a financial incentive to sell as much as they can. That is all completely true, but it is scary only if you view consumers as the slaves rather than the masters of people trying to sell them stuff. Most Americans do not see the businesses that supply them with useful and enjoyable goods and services as the enemy, and I suspect the people most inclined toward that view are also the ones who are most inclined to favor legalization of marijuana, for cultural reasons that don't make a lot of sense but nevertheless have an impact on how people vote.

The campaign against Alaska's legalization initiative, Measure 2, tried Sabet's strategy, adopting the slogan "Big Marijuana. Big Mistake." There is not much evidence that it was effective. Last May, a month after the opposition campaign was launched, Public Policy Polling put support for Measure 2 at 48 percent. By the end of July, that number had dipped to 44 percent. But in the end, 52 percent of voters said yes to legalization.

The opposition to Oregon's legalization initiative, Measure 91, also played up the "Big Marijuana = Big Mistake" angle, highlighting the cornucopia of marijuana-infused foods and beverages that Oregonians could expect to see if they let free enterprise loose. Survey USA reported a dip in support for Measure 91 from 51 percent in June to 44 percent in September, but the number rebounded to 52 percent the following month, and the initiative passed with 56 percent of the vote.

Opponents of the Washington, D.C., measure, Initiative 71, likewise warned voters about marijuana edibles, using the same photo as the No on 91 campaign. They also hoped voters would be aghast at the possibility that tourists would come to town for the weed instead of the Washington Monument. Apparently Washingtonians found the thought bearable. Initiative 71 passed with support from 69 percent of voters, up from 49 percent in March and 65 percent in September.

Cannabis commerce does not seem to alarm voters as much as Sabet hoped it would. But it does seem to worry Mark Kleiman, a UCLA professor of public policy whose consulting firm advised marijuana regulators in Washington state. In a Slate essay published on Election Day, Kleiman noted that Initiative 71 legalizes possession, home cultivation, and noncommercial transfers of marijuana but does not legalize the marijuana business, which will require additional legislation by the D.C. Council (along with congressional acquiescence). Kleiman suggested that D.C. should reject "the tired commercial formula that serves us so badly when it comes to alcohol" and stick with a "grow and give" approach:

If the goal is to allow adults to toke up in peace—without the hassle of finding a "420-friendly" physician and pretending to have some ailment—and to stop arresting so many users and low-level cannabis dealers, disproportionately poor and minorities, it can be done without involving the "potrepreneurs" now hoping to cash in on the Green Rush.

D.C. should try "grow and give" and see how it works. It wouldn't generate any tax revenue, or offer consumers the same convenience or product variety as a commercial system, and of course policing the boundary between "giving" and "selling" would be virtually impossible. But it might be a big improvement on the current prohibition. Eliminating organized marketing would likely lead to a much smaller increase—if any—in cannabis abuse than we would expect if we sell pot the way we now sell beer.

Unlike Kevin Sabet, Kleiman thinks (or at least hopes) that we can have legalization without commercialization. There is another name for this form of legalization: prohibition. Back when the booze business was banned, people were still allowed to possess and consume alcoholic beverages (if they had purchased them before the 18th Amendment took effect, for example). They could even make their own fermented beverages, based on the Volstead Act'exception for "nonintoxicating cider and fruit juices,"which the Treasury Department interpreted to mean "nonintoxicating in fact," leaving leeway for significant alcohol content. If alcohol prohibition had been replaced by a "ferment and give" system, the difference would have been pretty subtle, and the market would still be controlled by gangsters selling products of unreliable quality at high prices.

The problems with "grow and give" that Kleiman concedes—in particular, the lack of consumer convenience and the impossibility of "policing the boundary between 'giving' and 'selling'"—mean that the black market would persist. Cannabis consumers who are not horticulturally inclined and do not have friends who are would still rely on old-fashioned pot dealers, and they would still face high prices, iffy quality, and limited choices. Consumers would not have to worry about getting busted for possession or home cultivation within Initiative 71's limits, but anyone making money by supplying them with cannabis would still risk arrest and imprisonment.

If smoking pot should not be cause for arrest, neither should selling pot, notwithstanding Kleiman's distaste for "potrepreneurs" and Sabet's worries about "Big Marijuana." Consuming cannabis should not be treated as a crime because it violates no one's rights; likewise helping people consume cannabis, whether or not money changes hands. In a legal, competitive market, Big Marijuana will have only as much power as consumers give it. Using force to suppress such peaceful transactions cannot be morally justified by the concern that some people will consume cannabis excessively or that marijuana merchants will exercise their freedom of speech by informing potential customers about their products. I agree with Kleiman that cannabis consumers should be left in peace. So should the entrepreneurs who serve them.

This article originally appeared at Forbes.com.