California Legislators Lag Behind Voters on Pot

'Historic' marijuana bill spotlights the importance of initiatives.

It's commonplace for legislators and commentators to criticize the "excesses" of direct democracy and propose reforms that limit the ability of voters to enact laws—or at least insert lawmakers more deeply into the initiative process. Yet a recently passed bill in California, approved in the final moments of the recently concluded legislative session, showcases why voters continue to take important matters into their own hands.

The issue is medical marijuana. After struggling to put together regulations dealing with this quasi-legal industry, a bipartisan group of state legislators—with last-minute negotiating from the governor's office—passed a package of bills. The most significant is AB 266, which "establishes a comprehensive licensing and regulatory framework for the cultivation, manufacture, transportation, storage, distribution, and sale of medical marijuana…"

It creates a new mini-marijuana bureaucracy called the Bureau of Medical Marijuana Regulation. After they were done fighting over who got credit for the bill, legislators were quoted praising the "historic" nature of the bills. Mainly, they require distributors to have state licenses, track all medical marijuana distributed throughout the state, and allow local governments to tax and even ban dispensaries.

The package is comprehensive—and has the support of many powerful Capitol players, from local government to law-enforcement. It even has the imprimatur of some of the key players in the state's large and growing medical-marijuana industry. Like all major bills, it has its share of useful and controversial elements.

But a little history will help put the legislative back-patting in perspective. Nineteen years ago, California voters — over the objections of most of the political establishment—approved Proposition 215, known as the Compassionate Use Act of 1996. Basically, the voters allowed patients and caregivers to possess and grow certain amounts of marijuana for medical use and protected physicians from punishment if they prescribe it to patients.

California voters approved of the measure by more than 10 percentage points, thus circumventing a governor (Pete Wilson) who vetoed medical-marijuana bills and a president (Bill Clinton) who also was something of a drug warrior. Backers said it was a classic use of the initiative power as intended by its Progressive-era founders: to let the people circumvent the politicians.

Of course, the resulting medical-marijuana industry has operated in what Reason's Jacob Sullum calls a "legal gray area" because Proposition 215 "never managed to specify where and how patients can obtain their medicine if they are not up to growing it themselves and cannot find a 'primary caregiver' who is willing and able to do it for them."

These problems can be attributed in part to imprecise drafting in the initiative—but also to conflicting state and federal laws, and to a political establishment more intent on derailing the public's vote than upholding it. This uncertain situation—epitomized by marijuana clinics that are required to pay taxes, but are not allowed to have bank accounts—has continued to this day. To the Legislature's credit, it has finally offered certainty—in exchange for possible taxes, new regulations and the power to limit the number of clinics. But it did take 19 years to get this far.

Furthermore, it's clear what's driving the effort: the prospect of yet another voter initiative. Other states recently have legalized marijuana for recreational purposes, and an initiative to do the same in California may be on the 2016 ballot. For instance, Lt. Gov. Gavin Newsom (D), chairman of a Blue Ribbon Commission on Marijuana Policy, views a well-developed medical-marijuana regulatory system as the foundation for a coming recreational system.

"They did get some things right, but they are creating so many significant barriers to the industry it's not going to … minimize the harm of the illicit market," said Diane Goldstein, a former Redondo Beach police lieutenant and spokesperson for Law Enforcement Against Prohibition. She can't understand why legislators continue to treat marijuana "like it's plutonium."

Whatever one's views of marijuana, this much is clear: the public is nearly two decades ahead of the state's politicians. Keep that in mind next time one of those politicians bellyaches about California's initiative process.