If Even Utah Has Gone Soft on Pot, Can the Nation Be Far Behind?

Nearly a quarter of the U.S. population lives in a jurisdiction where recreational use is legal.

Talking to Roll Call in October, Sen. Cory Gardner (R–Colo.) described Senate Majority Leader Mitch McConnell's dismay upon hearing that Utah voters seemed ready to approve medical marijuana. "McConnell looks at me, and he goes, 'Utah?'" Gardner recalled. "Just this terrified look. And as he says that, [Republican Utah Sen.] Orrin Hatch walks up, and Mitch looks at Orrin and says, 'Orrin, is Utah really going to legalize marijuana?' And Orrin Hatch folds his hands, looks down at his feet, and says, 'First tea, then coffee, and now this.'"

Utah's medical marijuana initiative won by six points on November 6, notwithstanding vocal opposition from the Church of Jesus Christ of Latter-day Saints. Voters were even more enthusiastic in Missouri, where a measure legalizing medical use won by a margin of nearly 2–1. Counting Oklahoma, where a similar initiative passed in June by a 14-point margin, three red states approved medical marijuana in 2018, while Michigan became the first Midwestern state to legalize recreational use.

By the end of 2018, medical marijuana had been legalized in 33 states, 10 of which also now let adults use cannabis without a doctor's note. Nearly a quarter of the U.S. population lives in a jurisdiction where recreational use is legal. Yet marijuana is still prohibited in any form for any purpose under federal law, something that could change now that Democrats have a majority in the House of Representatives.

The Respect State Marijuana Laws Act, a bill first introduced by now-former Rep. Dana Rohrabacher (R–Calif.) in 2013, would have made the federal ban inapplicable to "any person acting in compliance with State laws." The most recent version of the bill attracted 46 co-sponsors, 70 percent of whom were Democrats. It never got a hearing.

"While members of Congress in both major parties have become increasingly supportive of good marijuana legislation," Marijuana Policy Project co-founder Rob Kampia wrote on his blog the day after the elections, "approximately 90% of Democrats—and only 25% of Republicans—support such legislation generally." When it comes to marijuana reform, Kampia said, "the Democratic takeover of the U.S. House was the most important outcome" of the 2018 elections.

Assuming that the new House leadership lets something like Rohrabacher's bill advance, a coalition of reform-friendly Democrats and federalism-friendly Republicans should be able to pass it. While that prospect may seem more remote in the Senate, which is still controlled by Republicans, a similar bill introduced in June by Sen. Elizabeth Warren (D–Mass.), known as the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, attracted 10 co-sponsors, evenly divided between Democrats and Republicans. "We'll probably end up supporting that," President Donald Trump, who has repeatedly said states should be free to go their own way on marijuana, told reporters after the STATES Act was unveiled.

Such legislation seems to be popular. A Quinnipiac University poll conducted last April put support for medical marijuana at 93 percent, including 86 percent of Republicans, and support for general legalization at 63 percent. While 55 percent of Republicans opposed legalizing recreational use, just 38 percent of them favored enforcing the federal ban in states that do so. Three-quarters of the respondents, including more than half of Republicans, supported legislation that would shield those states from federal interference.

Because of the federal ban, state-licensed marijuana merchants are constantly exposed to the risk of prosecution, forfeiture, and anti-racketeering litigation. The ban complicates financing, leasing, contracting, branding, insurance, banking, and income taxes. Now that two-thirds of the states have legalized marijuana for medical or recreational use, surely it is time for Congress to eliminate these burdens by acknowledging that most of the country has rejected pot prohibition.

In addition to the state marijuana ballot initiatives and the Democratic takeover of the House, two election-related developments involving men named Sessions bode well for that reckoning. House Rules Committee Chairman Pete Sessions (R–Texas), an unreconstructed drug warrior whom Kampia calls "the sphincter who has constipated all marijuana bills and amendments in the House in recent years," lost his bid for re-election. A day later, Trump finally (for reasons of his own) got rid of Jeff Sessions, who as a senator averred that "good people don't smoke marijuana" and as attorney general periodically threatened to crack down on state-legal cannabusinesses. The two anti-pot stalwarts are related only spiritually.