The Marijuana Majority

By Kevin D. Williamson

Thursday, December 17, 2020

 

In 2020, the reliably Democratic state of New Jersey, the swing state of Arizona, and the Republican stronghold of Mississippi all voted the same way: in favor of liberalizing their marijuana laws. So did South Dakota and Montana. Oregon decriminalized personal possession of all drugs, across the board. Republicans, who advertise themselves as the party of liberty, have largely been left behind as the nation embraces policies once championed by such conservative heroes as Milton Friedman and William F. Buckley Jr.

 

Why?

 

Republicans have long believed that they are doomed to fare poorly in elections in which there are marijuana initiatives. President Donald Trump publicly lectured former Wisconsin governor Scott Walker that it had been a fatal error to “put marijuana on the ballot at the same time you’re running” — never mind that Walker did not have any role in putting those initiatives on the ballot — because the marijuana issue activated “like a million people that nobody ever knew were coming out.” Marijuana did prove popular in Wisconsin in the 2018 election, in which 16 counties and two cities had votes on “advisory questions” — nonbinding referenda — relating to marijuana legalization. The medical-marijuana questions won between 67 percent and 88 percent of the vote in the localities where they appeared, and recreational use won from 54 percent to 76 percent of the vote. And Walker did indeed narrowly lose his reelection bid, winning 48.4 percent of the vote to his Democratic opponent’s 49.5 percent. It is possible that a different attitude toward marijuana reform might have meant a different outcome for Walker, though there is no reason to think that the issue was dispositive.

 

Trump himself has a mixed record on marijuana, having at one point declared himself a “100 percent” supporter of medical marijuana and kinda-sorta offered his support in 2018 to a bill, sponsored by Senator Cory Gardner (R., Colo.) and Senator Elizabeth Warren (D., Mass.), that would have ended marijuana prohibition at the federal level. “We’re looking at it,” the president said. “But I probably will end up supporting that, yes.” If he has supported it, he has done so pretty quietly. And at the same time that he was making conciliatory noises about medical marijuana and the Gardner-Warren legislation, President Trump pulled in Jeff Sessions as attorney general, committing his administration to a very old-fashioned “war on drugs” posture. Trump has leaned heavily on the advice of Rudy Giuliani, who talks up his time prosecuting drug cases and under whose mayoralty New York City went from about 1,000 marijuana arrests a year to about 40,000, according to data compiled by the New York Civil Liberties Union. With the riots and political violence that plagued many big, Democrat-run cities in 2020, Trump spent a great deal of energy positioning himself as the law-and-order candidate, with any reforming views on marijuana mostly pushed into the background, though Trump did from time to time point to his successful efforts at criminal-justice reform to distinguish himself from Joe Biden, father of the 1994 crime bill often blamed for relatively high U.S. incarceration rates.

 

But even with that mixed record, Trump himself did just fine on many a marijuana-tainted ballot: South Dakota’s Amendment A legalizes the recreational use of marijuana for those 21 and over along with the possession of up to one ounce of marijuana. It passed with 54 percent of the vote — on the same ballot on which Donald Trump won 62 percent of the vote. In Montana, recreational marijuana and Trump both won 57 percent of the vote. In Mississippi, medical marijuana passed with a thundering 73 percent of the vote while Trump won the state’s electors with a comfortable 58 percent of the vote. Trump even did microscopically better in New Jersey and Oregon than he had in 2016.

 

The most obvious explanation for that is that while marijuana reform is generally popular, it was not a major issue informing voters’ presidential choices in 2020. Marijuana-liberalization bills routinely outperform incumbent politicians of both parties on ballots in both Democratic and Republican states, and there is not much reason to believe that marijuana is a poison pill for Republicans on a general-election ballot.

 

And a few of them even are trying to get ahead of the issue.

 

In December, Republicans in the South Carolina state legislature prefiled legislation to legalize medical marijuana in 2021, setting up a possible confrontation with Governor Henry McMaster and the state’s highest-ranking law-enforcement official, State Law Enforcement Division chief Mark Keel, who argues that South Carolina should not vote to legalize marijuana in any form while it remains prohibited at the federal level. And no movement is likely on that in Washington in the near future: The Democrat-led House in December voted to pass the MORE Act — the Marijuana Opportunity Reinvestment and Expungement Act — on an almost perfectly party-line vote, with only five Republicans supporting the measure and six Democrats opposing it. It has foundered in the Republican-controlled Senate. The MORE Act would have gone well beyond ending federal prohibition, imposing an excise tax on marijuana to fund a new fat slab of Democratic patronage opportunities in the form of grants and subsidies for businesses and community groups thought to have suffered disproportionately from the effects of prohibition.

 

“I prefer my marijuana reform not dipped in reparations policy, frankly,” Representative Matt Gaetz, a Trump-venerating Republican from Florida, told the New York Times. He is more interested in the STATES Act (the inevitable beef-witted acronym: “Strengthening the Tenth Amendment Through Entrusting States”), which would simply end federal prohibition and let the states legislate as they chose. But the deficiencies in the MORE Act did not stop him from voting for the bill, along with fellow Floridian Brian Mast and a handful of other Republicans (Don Young of Alaska, Tom McClintock of California, Denver Riggleman of Virginia) and Republican refugee Justin Amash of Michigan, currently affiliated with the Libertarian Party.

 

South Carolina’s would-be liberalizers make a familiar case: Recreational marijuana use in the state already is widespread; prohibition forces those seeking out the drug for medical purposes into an underground black market whose criminal nature makes it inherently dangerous; the lack of legally available medical marijuana encourages sick people to lean more heavily on legal and semi-legal substances such as opioid pain medications. They also cite the relevant political facts: A Morning Consult poll found that a large majority of Americans supported the House Democrats’ legalization bill. That support includes a small majority of Republicans. More than half of Republicans have been telling pollsters consistently for years now that they support marijuana legalization.

 

So, what’s holding back Republicans in Congress?

 

***

 

‘As a legislator, I had 70,000 constituents, but I didn’t care about them as much as I cared about the ten people who knocked on doors for me,” says longtime Republican politico Don Murphy. “We all know it’s true.” Murphy came into the Maryland General Assembly in 1994 after defeating the Democratic majority leader. He was the party chairman in Baltimore County and boasts of having been a Trump delegate at the 2016 GOP convention. He is now the director of federal policy at the Marijuana Policy Project. The problem for Republican elected officials, Murphy says, is that the minority of Republicans who oppose marijuana legalization have a great deal more clout than the small majority who favor it.

 

Thanks to increasingly homogeneous congressional districts, the influence of talk radio and social media, and the decline of the party apparatus, ultra-committed true believers have an outsized footprint in the daily consciousness of the elected Republican. “You don’t get reelected if you don’t win the primary,” Murphy says. “Red states are passing this. South Dakota just passed this. But if you’re John Thune, your voters aren’t.” In Murphy’s view, this is a more urgent problem at the federal level. “When it comes to the House of Representatives, this is a more difficult issue than it was 30 or 40 years ago, because at that time, most House seats were fairly bipartisan. You had to win the general election. With redistricting, we have seats that are very red and very blue. If you’re a Republican, it doesn’t matter what the broadest group of your voters supports — what matters is how the primary voters respond. Even if 50 percent of the GOP supports ending federal prohibition, you have a problem if the 40 percent who don’t are your primary voters.”

 

The modern Republican Party has for many years been pulled in several different directions at once. For the generation of Republicans who came of age in the 1980s and 1990s, the internal contest was fought among the more libertarian-leaning Jack Kemp Republicans, walking around with their copies of Free to Choose and dreaming of enterprise zones; the tradition-focused Christian conservatives, repulsed by the state of American culture and finding themselves allied with such figures as Tipper Gore; and the national-security hawks, committed cold warriors who had migrated from the Democrats even though many of them were well to the left of the median Republican on the so-called social issues, with such figures as Jeane Kirkpatrick being scrutinized for liberal heresy. (She scandalized the Washington Times with her agonized conclusion that abortion is “not invariably the worst possible evil in every situation.”) Conservative intellectuals such as Milton Friedman and William F. Buckley Jr. advocated a more libertarian approach to drug policy, while those who opposed them were a motley bunch: Buckley’s opponent in a famous debate about drug legalization was the Reverend Jesse Jackson, who argued that legalization would mean abandoning America’s poor and vulnerable to addiction. Ronald Reagan was committed to the so-called war on drugs, and Nancy Reagan made “Just say no!” her hallmark project as first lady.

 

The Republican camps have changed a little since the happy period between the fall of the Berlin Wall and 9/11. Libertarianism has fallen into generally low regard in much of the Republican world as the Ross Perot–Pat Buchanan element finally found its voice in the Trump campaign. The Democrats have not exactly started quoting from The Road to Serfdom, but they are marginally to the libertarian side of the GOP today on a few issues that are important to libertarian-minded conservatives and Chamber of Commerce Republicans, including free trade and, to a lesser extent, corporate welfare. Republican hostility toward Wall Street, Silicon Valley, international trade pacts, and “globalization” is the result of a political energy that is not merely un-libertarian but anti-libertarian and intensified by tribal fissures within the Republican Party and the conservative movement. The vote on the MORE Act suggests that congressional Democrats are to the federalist side of Republicans on the matter of marijuana, even if Nancy Pelosi et al. sought to lard the bill up with patronage schemes. It is dispiriting to think that our national politics might be shaped by something so petty and childish as “If they’re for it, then we’re against it!” thinking, but that dynamic cannot be ignored.

 

The role once played by Christian conservatism in the Republican Party is now played by right-wing populism, which has both incorporated and supplanted the old Christian Right coalition. From Murphy’s point of view, the rise of populism should put the GOP squarely in the marijuana-legalization camp. “Trump is more of a populist than a conservative,” he says. “But if we’re a populist party, how do you deny ending federal prohibition, considering how popular that is?” Like much of the thinking surrounding the politics of marijuana, that view is tragically naïve. Populism and popularity intersect only at the electoral edges. Populism is a style and an affectation, one that is in itself almost entirely devoid of intellectual content, a vessel that can be filled with almost anything: Populism can be allied with socialism, as in the Bernie Sanders campaign; it can be matched with reactionary libertarianism, as it generally was in the Tea Party movement; or it can be an instrument of a more illiberal mode of right-wing politics, as it has been in the Trump years. Trump has always sought to affiliate himself with the tough-guy cultures of the military and law enforcement — Giuliani, Bernie Kerik, “my generals” — and, as attorney general, Jeff Sessions did not have to twist the presidential arm to get Trump to double down on outmoded drug-war thinking.

 

Can the populist Right carry forward the cause of marijuana legalization in the coming post-Trump era? Matt Gaetz clearly thinks so, and the rhetorical foundation of the STATES Act — leading with the Tenth Amendment — is custom-tailored for the talk-radio/Fox News demographic.

 

Don Murphy makes a persuasive argument that legalization is good politics. Is it good policy?

 

***

 

 ‘It is our judgment that the war on drugs has failed,” National Review editorialized in 1996, “that it is diverting intelligent energy away from how to deal with the problem of addiction, that it is wasting our resources, and that it is encouraging civil, judicial, and penal procedures associated with police states.” William F. Buckley Jr. lamented “the astonishing legal weapons available now to policemen and prosecutors,” and specifically noted the “penalty of forfeiture of one’s home and property for violation of laws which, though designed to advance the war against drugs, could legally be used — I am told by learned counsel — as penalties for the neglect of one’s pets.” Buckley thought it “outrageous to live in a society whose laws tolerate sending young people to life in prison because they grew, or distributed, a dozen ounces of marijuana.” Such “excesses of wartime zeal,” he wrote, are “the legal equivalent of a My Lai massacre.” His conclusion? “Legalization of the sale of most drugs, except to minors.”

 

The question of marijuana legalization — and of broader drug legalization, as in Oregon — is not one of unalloyed good vs. unalloyed evil. It is a matter of balancing evils. On balance, prohibition is a worse policy than legalization. The war on drugs is in one important sense like our various municipal and national attempts to reduce homelessness: We are bringing the wrong policy tools to the job. Homelessness in the United States — by which I mean the situation of people sleeping in vacant lots and under freeway overpasses, not the situation, serious but distinct, of poor people living with non-ideal or insecure housing situations — is not an economic problem, and it is not going to be mitigated through such economic means as rental subsidies and “affordable housing” schemes. The homeless people sleeping in New York City subway stations are suffering from mental-health problems — including, let the drug-liberalizers note, addiction. Housing subsidies and vagrancy citations will not solve that problem. Similarly, drug abusers and drug addicts are not abusers and addicts because the federal legal penalties for drug possession are insufficiently vindictive, and making those penalties more vindictive is not going to advance our national interest in these matters. The same is broadly true of simple recreational users.

 

On top of this must be layered other considerations: One is that marijuana use per se is by most accounts less dangerous and destructive than are such legally available intoxicants as alcohol and opioids, but that is not obviously true of, say, cocaine or methamphetamine. So the practical case for relaxing marijuana laws is distinct from, and more persuasive than, the case for legalizing other drugs. A second consideration is the facts on the ground: The majority of Americans today live in states that permit at least some legal sale and consumption of marijuana, but those transactions remain, on paper, serious federal offenses. Here, the federalist case for ending federal prohibition is as strong as a practical matter as it is as one of conservative principle.

 

At the same time, libertarian-minded reformers should be realistic about what liberalization can achieve — and what its costs are likely to be. Marijuana reformers often point derisively to the case of alcohol prohibition in the 1920s, but they sometimes ignore a key datum: Prohibition worked, to a great extent, with alcohol consumption declining by more than half. Alcohol consumption increased when Prohibition was ended, and it had been increasing for several years at the time the law was repealed; in Colorado, much the same thing has happened with marijuana, with adult-use rates, which had been increasing before legalization, continuing to increase after legalization. Organized crime, including Mexican drug cartels, remains a problem in the Colorado marijuana trade. The state has found it prudent to tighten some of its marijuana regulations, for example by cutting the number of plants cultivators of medical marijuana may legally grow from 99 to twelve. Marijuana is still grown, distributed, and consumed illegally, in spite of its legal availability. The case is in some ways parallel to that of the partial legalization of prostitution in some parts of Nevada, which has had little or no effect on street-level prostitution in Las Vegas. The experience of drug-liberalization projects abroad, notably in the Netherlands, counsels reformers to temper their optimistic expectations for what liberalization is likely to actually accomplish.

 

Which is to say, conservatives should understand drug legalization not as the glorious triumph of individual liberty but as a concession to reality, admitting the melancholy facts on the ground — that is, as damage control.

 

And the first step toward making things a little better is to stop making them worse.