Ohio's Choice: Pot Prohibition or Cannabis Crony Capitalism?

Many legalizers are less than thrilled by the Buckeye State's marijuana initiative.

Tomorrow voters in Ohio will decide whether to legalize marijuana. If Issue 3 passes and if another constitutional amendment aimed at overriding it does not, Ohio will be the first state to leap from complete pot prohibition to legalization for both medical and recreational use. It will also be the most populous state and the first state east of the Great Plains to legalize marijuana. A legalization victory in Ohio, a bellwether in presidential elections, could have a big impact on politicians' willingness to deviate from prohibitionist orthodoxy and on voters' willingness to support next year's crop of marijuana initiatives in other states.

Despite its potential significance, Issue 3 does not merit a mention in a message about marijuana legalization that I received last week from the Drug Policy Alliance (DPA). In the fundraising letter, DPA Executive Director Ethan Nadelmann recalls last year's successful initiatives in Alaska, Oregon, and Washington, D.C., and he looks forward to next year's contests, when "more people than ever before will have the opportunity to vote on marijuana legalization." But he says nothing about tomorrow's election. There is no discussion of Issue 3 on DPA's website either, although a few posts mention Ohio as one of the states where marijuana might be legalized.

The Marijuana Policy Project (MPP), another leading reform group, has a paragraph about Issue 3 on its website but is not calling attention to the initiative as the vote nears. Nor is its description an endorsement. "We encourage residents to carefully consider the measure and be sure to vote this November!" it says. 

DPA and MPP, which had prominent roles in legalization campaigns last year and will again next year, are not involved in the Ohio initiative, so maybe it's not surprising that they are not promoting it. But that lack of involvement reflects strategic and philosophical differences within the drug policy reform movement that have made many opponents of pot prohibition ambivalent about Issue 3. It's an ambivalence I share. Although I'd like to see Issue 3 pass, I'm not exactly rooting for it.

Some of the objections to Issue 3 have to do with timing. MPP Executive Director Rob Kampia thinks it's risky to put a marijuana initiative on the ballot in a year when people are not electing a president, since turnout is lower then, especially among the younger voters who are most likely to favor legalization. He worries that a defeat in Ohio could be portrayed as a reversal of the legalization movement's momentum. "That failure will be the only failure in the country," he says, "and then the media will feed on that: 'Oh, my God, legalization is backsliding.'…If they lose, which is not guaranteed, it might change the national narrative for one year."

Although Kampia has a point, my main problem with Issue 3 is the cannabis cultivation cartel it would create: Commercial production would be limited to 10 pre-selected sites owned by the initiative's financial backers, who are investing in the gains to be made from the economic privileges they are trying to award themselves. This approach has the advantage of quickly raising a lot of money—money that can be used to pay marijuana mascots and produce ads featuring sympathetic beneficiaries of legalization (such as the mother who moved from Ohio to Colorado so she could treat her daughter's epilepsy with cannabis oil). The downside is that the crony capitalism embodied in Issue 3 disgusts a lot of people who otherwise support legalization.

That reaction is not limited to libertarians like me. "Damn," DPA's Nadelmann said while discussing the initiative in San Francisco last February. "This thing sticks in my craw. Ten business interests are going to dominate this thing?" Despite objections from the Yes on 3 campaign, a.k.a. Responsible Ohio, the ballot description highlights that aspect of the initiative, which unites progressives and libertarians in revulsion almost as much as prohibition itself. "I'm rooting for Issue 3 to win," Nadelmann says in a CNN essay posted last Thursday, "mostly because a victory on Election Day 2015 would significantly accelerate the momentum toward ending marijuana prohibition nationwide." But he also writes that "a constitutionally mandated oligopoly for an agricultural product…seems un-American" and "sticks in the craws of both liberals and conservatives."

State legislators who oppose Issue 3 have taken advantage of this vulnerability by proposing another constitutional amendment. Issue 2, which appears on the ballot right before Issue 3, says "the power of the initiative shall not be used to pass an amendment to this constitution that would grant or create a monopoly or a special interest, privilege, benefit, right, or license of an economic nature to any person, partnership, association, corporation, organization, or other nonpublic entity, or any combination thereof, however organized, that is not available to other similarly situated persons or entities at the time the amendment is scheduled to become effective." That rule sounds good to me, even though I know it is aimed at defeating marijuana legalization.

I am not the only person with contradictory impulses on this subject. In a recent survey commissioned by WKYC, the NBC station in Cleveland, 56 percent of voters said they favored Issue 3, and 54 percent said they supported Issue 2. In fact, 57 percent of Issue 2 supporters also favored Issue 3. In other words, most of the people who planned to vote for Issue 2 also planned to vote for the initiative it was designed to neutralize. 

A simple majority is enough to pass a constitutional amendment in Ohio. Should both initiatives pass, it is not clear what will happen. "The only certainty is litigation," writes Kent State University political scientist Ryan Claassen, who helped conduct the WKYC poll. Ordinarily the amendment receiving more votes would prevail, but initiatives placed on the ballot by the state legislature, as Issue 2 was, take effect immediately, whereas initiatives placed on the ballot by petition, as Issue 3 was, take effect 30 days after the election. That suggests Issue 2 would pre-empt Issue 3 even if it received fewer votes. Furthermore, Issue 2 includes a provision that says its passage would invalidate all of Issue 3, not just the part creating a cultivation cartel.

The 56 percent support for legalization in the WKYC survey is about the same (taking into account margins of error) as the 53 percent support found in a Quinnipiac University poll conducted in late September and early October. But WKYC notes that voters in off-year elections, when turnout is lower, "tend to be older and more Republican than the eligible electorate." That's relevant to the fate of Issue 3 because support for marijuana legalization is stronger among younger voters and Democrats.

In the WKYC poll, 64 percent of 18-to-30-year-olds and 71 percent of 31-to-40-year-olds said they'd vote for Issue 3, compared to 46 percent of 61-to-70-year-olds and just 29 percent of respondents older than 70. There was also a clear partisan difference: 67 percent of Democrats said they'd vote for Issue 3, compared to 45 percent of Republicans and 50 percent of independents. Kampia has numbers like these in mind when he says he has learned from experience that marijuana initiatives have a better shot in a presidential election year. A more recent survey by Bowling Green State University, conducted on October 16 and 17, put overall support for Issue 3 at just 44 percent, with 43 percent opposed and 13 percent undecided.

Russ Belville, a longtime marijuana reform activist and talk radio host, faults leading antiprohibitionists for doing little or nothing to help push Issue 3 over the top. "Why isn't every drug law reform group making their get-out-the-vote push and shouting it from the rooftops?" he asked in an October 12 Marijuana Politics post. Belville noted that Issue 3 is in some respects superior to I-502, the 2012 Washington initiative, which got much more enthusiastic support from groups such as DPA, MPP, and the National Organization for the Reform of Marijuana Laws (NORML). Unlike I-502, for instance, Issue 3 allows home cultivation (although only with a state-issued license), and it does not create an arbitrary definition of drugged driving based on THC blood levels.

NORML, unlike DPA and MPP, has endorsed Issue 3, albeit under the headline "Investor-Driven Legalization: A Bitter Pill to Swallow." In that September 14 post, NORML founder Keith Stroup, now the group's general counsel, noted that the board vote in favor of the initiative was "less than unanimous." He explained that "a couple of board members abstained, and one flatly opposed the endorsement, to register their displeasure with the self-enrichment aspects of the Ohio proposal." Stroup added that "this specific version of legalization?in which the investors alone would control and profit from the 10 commercial cultivation and extraction centers (where marijuana-infused products would be produced) permitted under the proposal—is a perversion of the voter initiative process available in 24 states."

This week Law Enforcement Against Prohibition (LEAP) joined NORML in supporting Issue 3, without mentioning the perversion that troubles Stroup. Instead LEAP emphasized the benefits of eliminating arrests for marijuana possession and moving the industry out of the black market. The statement quoted Howard Rahtz, a retired Cincinnati police captain: "Legalization will take money away from the cartels, provide funding for public safety and health services, and reduce the violence associated with the illegal drug market."

Belville urges antiprohibitionists to focus on the main issue: the government's power "to abrogate my rights because the drug I choose to use is contraband." The Issue 3 campaign is a battle in a war, he says, and "the way the war is won is by taking from the authorities, state by state, the ability to fuck with adults who use marijuana." After that is accomplished, "we fight for cultivation rights," and "we fight to make the business model more equitable," but "we've got to get it legal first."

It's hard to argue with that. Ohioans will indisputably have more freedom if Issue 3 passes than if it doesn't, and that victory can only accelerate the continuing collapse of marijuana prohibition across the country. If we must choose between cartels, the one Issue 3 creates is clearly preferable to the ones Capt. Rahtz wants to push out of the marijuana business.

This article originally appeared at Forbes.com.