The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I support the legalization of marijuana. I also believe that drug policy reform should proceed at the state level as much as is possible. So you might think I would support Issue 3, the Ohio marijuana legalization initiative on the ballot Tuesday—but I don't. To my mind, Issue 3 is a particularly awful way to legalize marijuana possession.
Issue 3 is a proposed amendment to the Ohio Constitution. (The approved amendment text is here.) On the one hand, the amendment would legalize the possession and use of marijuana by adults, and allow for the commercial sale of marijuana at licensed retailers. On the other, Issue 3 would create a marijuana "monopoly" (actually, an oligopoly) consisting of 10 producers who would have their exclusive rights to engage in the commercial production of marijuana enshrined in the state constitution. The campaign in support of Issue 3—so-called Responsible Ohio—is predictably supported by those who would hold these exclusive rights. This is crony capitalism at its worst. (And I haven't even mentioned the Issue 3 mascot, "Buddie.")
It is bad enough when state governments grant monopoly privileges to well-heeled or well-connected corporations. Enshrining such anti-competitive, cronyist measures into a state constitution, while simultaneously restricting the ability of state and local governments to enact responsive legal reforms, is even worse. Yet that is precisely what Issue 3 would do.
There is a second marijuana-related measure on the Ohio ballot Tuesday—Issue 2—that is designed to counteract the monopoly aspects of Issue 3. (The approved amendment text for Issue 2 is here.) Issue 2, by its terms, bars the adoption of monopoly or oligopoly measures in the Ohio Constitution. So it would seem that Issue 2 would prevent Issue 3 from creating a constitutional marijuana monopoly. Yet it is not entirely clear that this is what would happen if both Issue 2 and Issue 3 pass.
According to Ohio Secretary of State Jon Husted, Issue 2 would trump Issue 3 because it would take effect first (being listed first on the ballot). I hope he's right, but it seems that Ohio law is not entirely clear on this point. In other words, should both pass, the question will end up in state court. A legal fight over simultaneously-enacted-yet-conflicting state constitutional amendments would certainly be interesting, but it's no way to adopt significant and far-reaching legal reforms.
I would like to see marijuana legalized in Ohio, but I would also like to see it done the right way—and it is hard for me to think of a worse way to legalize marijuana in Ohio than to create a constitutionalized drug cartel.
UPDATE: Ilya offers a contrary view above. (See also Nick Gillespie's Daily Beast article.) Both argue that the harms of marijuana prohibition outweigh the downsides of Issue 3. Were this simple legislation, I would be inclined to agree. After all, a cartelized alcohol industry is preferable to alcohol prohibition . Why, then, is Issue 3 different.
The reason I find Issue 3 objectionable is not merely that it restricts entry into the newly legalized market. The problem is Issue 3 grants the exclusive rights for commercial production to a handful of firms, and inscribes those exclusive rights into the state constitution, thereby entrenching the cartel's legal privilege. This means that they only way to eliminate the newly formed drug cartel is to amend the state constitution again; it cannot be done legislatively. This makes the marijuana cartelization of Issue 3 radically different than the state's anti-competitive alcohol laws.
The debate over Issue 3 has normalized the idea of marijuana legalization in Ohio. This, and the generally positive experiences of legalizing states like Colorado and Washington, means that support for marijuana legalization is likely to continue growing. As a consequence, the failure of Issue 3 will not preclude marijuana legalization in the future, or make it less likely. To the contrary, I expect that should Issue 3 fail, a less-harmful legalization initiative would end up on the ballot within a few years, and that it would pass. (Indeed, if Ohio Democrats are smart, they'd support such a ballot initiative for the 2016 election so as to boost turnout among younger voters in an election year.) In any event, I still believe that marijuana prohibition is wrong, but so is enshrining a state-sanctioned drug cartel into the state constitution.