The Great Cannabis Divide

Congress and public are split on marijuana legalization
  • Supporters of Arkansas Issue 7, a medical marijuana initiative that allows patients with certain conditions an opportunity to obtain or grow marijuana to ease their symptoms, rally outside the Arkansas Supreme Court building in Little Rock. The measure was approved Nov. 8 along with other legalization votes in seven other states. (Photo by Kelly P. Kissel/AP)

More Americans than ever have legal access to marijuana, but the cherry glow highlights a gap between the way voters think and what federal lawmakers say and do, according to policy reformers.

Paul Armentano, deputy director of the National Organization of the Reform of Marijuana Laws, or NORML, said cannabis legislation confirms one of the sore spots that drove the 2016 federal election cycle — the sense of a growing schism between voters and their federal representatives.

Armentano is happy with the statewide results, but only to a point.

“They key point is that when you get through with the lovey-dovey, feel good responses, it’s also indicative of a breakdown of the democratic process,” he said.

Along with Donald Trump’s prediction-defying win in his presidential bid over Hilary Clinton, Nov. 8 wove more changes into the U.S. political fabric when eight of nine states legalized either recreational or medicinal cannabis.

Voters who hot-boxed the voting booths with support dramatically changed the national cross-section. One-fifth of the country’s population now doesn’t need a prescription to buy marijuana. Americans in three in five states — 29 overall — can access medical marijuana. By 2020, the National Cannabis Industry Association projects a national marijuana market of $22 billion.

The voter turnout reflects a growing national trend.

In the eight states, ballot measures passed with an average 58 percent of voters in favor, confirming Pew and Gallup polls that say six of 10 Americans support marijuana legalization or letting states decide the issue.

Because of these numbers, however, the largest marijuana policy reform group in the nation is uneasy with what the state-by-state movement says about U.S. democracy in 2016.

Congressional inaction

Pundits and media think pieces said the 2016 presidential race was the boil over of years of belief among the electorate that Washington D.C., elites don’t care, don’t listen or don’t move. Decriminalizing marijuana is part of that divide, Armentano said.

“I can’t think of a single issue that would so clearly represent it,” he said. 

Armentano’s aggravation puts a dark cloud over the otherwise joyful post-election week when cannabis industry media outlets and legalization supporters trumpeted 2016 as a watershed year.

Armentano bristles that the states have to take action in the first place.

“In a healthy democracy, when a significant portion of the public takes certain policy decisions, their elected officials go to the halls of Congress, carry bills and lobby for bills that are reflective of the views of their constituency,” he said. “The reason we had nine states in this election with voter initiatives…was because in every one of those states, lawmakers were unwilling to address the issue. That’s problematic.”

The public is holding an open rebellion against federal law.

Polls say six out of 10 Americans support legalizing marijuana; 29 states have some form of legal medical use, not counting the states allowing marijuana plant-derived cannabidiol oils for medical purposes. One-fifth of the country’s population doesn’t even need a prescription for cannabis, thanks to California and its nearly 40 million residents.

State laws defying federal laws have led to an uneasy truce involving banking and law enforcement. Marijuana is listed as a Schedule I Controlled Substance, meaning it has no accepted medical use.

In direct conflict with federal law, a majority of states now approve medical marijuana and growing numbers are legalizing it for adult use including Alaska, which just had its first legal sale in October after a voter initiative was approved in 2014.

And yet, Armentano said, federal legislators do not respond.

“I’ve been doing this for 21 years,” he said, “and I’m still waiting for a single piece of legislation addressing medical marijuana to receive a vote at the federal level. Not a floor vote, a committee vote. I’ll take a subcommittee vote — any actual recorded vote. It has not happened.”

Armentano’s frustration takes root in congressional inaction. Congress has had many chances to take up marijuana-related issues, both in the past and in the present.

In 1981, the late Rep. Stuart McKinney tried to reschedule marijuana with a bill co-sponsored by 84 House members, including Newt Gingrich, who went on to become Speaker of the House and is now a key advisor to President-elect Donald Trump.

After the bill died in committee, Rep. Barney Frank began annually introducing nearly identical legislation, which failed each time. Since then, successive attempts to deschedule or reschedule marijuana have failed. 

Currently, marijuana-related legislation is suffering the same fate.

The Compassionate Access, Research Expansion, and Respect States Act of 2015, or CARERS Act, would move marijuana to a Schedule II substance and protect banks doing in marijuana business.

It has lingered in the Senate Judiciary Committee without action since New Jersey Democrat Sen. Cary Booker introduced it in March 2015. The House version was kicked to a handful of subcommittees, none of which have taken any action.

Californian Republican Rep. Dana Rohrabacher introduced the Respect State Marijuana Laws Act of 2015 in April. Like the CARERS Act, the House divvied it up among half a dozen subcommittees where the bill sits inactive.

Even marijuana-related subcommittee actions in other areas have yielded nothing. In a 2015 appropriations bill, legislators including Alaska Republican Sen. Lisa Murkowski voted to include a provision that would prevent the federal government from prosecuting banks for dealing with marijuana businesses. The addition, passed with a 16-14 subcommittee vote, ended up stripped from the final bill.

Republicans and states’ rights

Besides a divide between the voter tide and federal inaction, Armentano sees hypocrisy as well.

Republican lawmakers are typically full-throated about states’ rights and federal overreach. NORML tracks voting records and public statements to see which lawmakers support legalization directly or at least the rights of states to make up their own minds.

“About two-thirds (of Republicans) disagree with that position,” Armentano said, “despite their longstanding propensity to generally argue that the government that governs best governs least, and that so many of these issues are best addressed on a state and local level. They clearly don’t believe that’s the case concerning marijuana policy.”

The voter-policymaker divide is especially distinct in the GOP, where lawmakers haven’t kept up with their electorate’s evolving attitudes.

As a voter issue, support of marijuana legalization is largely non-partisan, though young Democrats and independents top the charts, according to Gallup data. In the most recent poll, Gallup reported than 42 percent of polled Republicans support legalizing marijuana — a number that has doubled over the last 10 years.

Among the states that have legalized medical marijuana, there is a roughly even split between red, blue and swing states.

West Coast blue states and New England blue state Maine and Massachusetts each have recreational marijuana, along with swing state Colorado and deep red Alaska. Red states like Arizona, Montana, Arkansas and North Dakota count themselves among the legal medical marijuana states.

Florida, which swung red this election, legalized medical marijuana in 2016 with 70 percent of voters in approval. Red states like Mississippi, Missouri, North Carolina and Nebraska have removed jail sentences for possessing small amounts of marijuana.

Some Republicans, notably Rohrabacher and Alaska’s Rep. Don Young, have stuck to the states’ rights argument on the issue by sponsoring or cosponsoring marijuana-related bills.

In a May 2016 forum, Young said marijuana legalization was “is very frankly dear to my heart, because I do believe in states’ rights and individual rights,” and that, “Either you’re for states’ rights or you’re against it. You can’t have it both ways.”

During the Republican presidential candidate debates, Sen. Rand Paul supported states’ rights regarding marijuana along with Carly Fiorina and former Florida Gov. Jeb Bush.

Others seem to bend that belief where marijuana is concerned.

After Arkansas became the first Southern state to legalize medicinal marijuana, Gov. Asa Hutchison, a former head of the U.S. Drug Enforcement Agency, expressed fear of tax burden and discomfort with the state-by-state nature of legalization.

“It’s an example of the states innovating in a risky area, and certainly the states are leading on this, but we’re to a point that the federal government is going to have to readdress this,” he told reporters form the Arkansas Democrat-Gazette after the election. “This does not call for a state-by-state solution, it calls for...a national solution.”

Trump on pot

Federal policies aren’t expected to change one way or another in the coming years, both from an unchanged Congress and a lukewarm White House.

Most experts have a “wait and see” approach to what will happen under Trump, but they don’t think his cabinet could muster enough support to scale back legalization.

Morgan Fox, communications manager for the Marijuana Policy Project, said he isn’t particularly worried about a newly Republican-dominated Washington.

“This is a bipartisan issue, and while support has always been a little less strong with Republicans, we also have a lot of Republican support in a lot of states as well as certain people in the legislature,” he said.

Experts have no real hints for what Trump will do. As far back as 1990, Trump advocated for legalizing all drugs. 

In interviews throughout his election campaign, Trump didn’t give any solid guidance about his support for a recreational market, though he has firmly stated his “100 percent” support of medical marijuana and his support of states’ rights in determining whether or not to legalize.

“But I know people that have serious problems and they did that they really — (medical marijuana) really does help them,” he told Bill O’Reilly of Fox News in February 2016.

Reformers from NORML, the Marijuana Policy Project and the National Cannabis Industry Association don’t so much fear Trump as his possible cabinet.

“The reality is, if we look at the small cadre of individuals guiding Trump presently on public policy, we see a veritable murderers’ row of long time, stalwart prohibitionists,” Armentano said.

Trump’s advisers include New Jersey Gov. Chris Christie, a former federal prosecutor who promised during Republican presidential debates to enforce federal law in all states that have legalized marijuana, along with medical marijuana opponent and former New York Mayor Rudy Giuliani.

Both were once considered frontrunners for Attorney General, although Guiliani is reported to be interested in Secretary of State and Christie has been sidelined from his previous prominent post in the Trump transition team.

Presidents have rarely taken a supportive side to medical or recreational marijuana legalization.

Marijuana has had only a brief respite at the federal executive level. Former presidents Bill Clinton and George W. Bush, whose presidencies covered 16 years total, both took hard stances against medical marijuana development.

President Barack Obama has had a spotty pot record, being dubbed the “worst president on medical marijuana,” by Rob Kampia, executive director of the Marijuana Policy Project, in an interview with Rolling Stone.

Under his presidency, federal drug law enforcement steeply stepped up threats, raids, prosecutions and confiscations of marijuana cultivators in Colorado, Washington, Rhode Island and California. 

In his second term, however, Obama’s administration started embracing a more lenient platform of encouraging states to experiment with marijuana as they wished.

DJ Summers can be reached at [email protected].

11/23/2016 - 10:02am