Why Prop 19 Failed and How We Move to the Future

This last election season was not the best for those of us who believe in ending prohibition. All but one marijuana initiative for full legalization or medical exemptions failed to pass. Arizona’s medicinal exemption was the only one to triumph and that was by a very narrow margin. The major failure which I’ll cover here was the downfall of Prop 19 in California, which lost 54% to 46% this year. Let’s take a look as to why this bill failed, and how we can learn for the future.

No Mainstream Political Support. Politics is a team sport, and every team needs a few stars to run the ball and motivate the others if they want to win. This is what Prop 19 seriously lacked, on both the state and federal levels. Current Governor Schwarzenegger, Both gubernatorial candidates, California Attorney General, Senator Boxer, Nancy Pelosi, both state parties, the White House, and the majority of the California Legislature all came out against the measure. While the “Yes on 19” group was able to garner some great endorsements, the fact is that without a political superstar backing it people are less inclined to vote for something. I’m not sure what can be done for the future on this — marijuana legalization is touchy subject for a politician to get involved with. The important aspect to get politicians on board to show that taking this stance won’t negatively affect their support base. With 46% saying yes, it does open that door to the subject as a pretty popular idea which means in the future we could see better support. One question I have is:  Where was Hollywood on this one?

Division in the Base. One of the saddest trends that came out of this year’s push for Prop 19 was the split between marijuana users and marijuana growers. In a classic example of people trying to use the state to squeeze out competition, the California Cannabis Association as well as many current medical dispensary owners opposed the proposition. They claimed that “corporate interest would ruin the industry,” that Philip Morris would sell tainted marijuana and drive their organic, high-grade product out of the market. This is, of course, a fallacious argument. We have many industries that offer varying quality of products at varying prices, even the tobacco industry (think cigarettes vs. cigars). There is more than enough room in the market for both. Many people may drink box wine simply because it’s cheap, but many others would rather pay the extra money to have the higher quality. The truth is that if this legislation passed the market would explode driving down prices across the board as more competition spread. Through the health care scheme currently designed in California, it is hard to start a growing operation and a dispensary, which keeps prices high. So these entrenched dealers who have already turned a profit on their business now just want to keep their prices at the artificial high. There really isn’t anything that can be done about this, its simple political economics. If you are currently a California medicinal marijuana user, I would research which dispensaries actively fought against Prop 19 and boycott them.

The Ambiguity of the Bill. One of the major factors that turns people off to legislation can be its complexity and vagueness. This bill was fraught with both. It tried doing to much at once, on one hand legalizing at the state level but then leaving it to each county to regulate. It used terms like “may” or “should” which in legalese gives wiggle room which will indubitably lead to more court hearings to flush out what each clause means. While these are minor things, think of bills like the Healthcare Bill or the Patriot Act. The more complex it is the less likely it is to pass by popular vote. To pass a bill like this you need to make it as simple as possible, with definitions of clauses expressly shown in the text. This is why I favor blanket decriminalization rather than legalization. Decriminalization simply repeals the effective laws, where as legalization tries to set up some type of complex regulatory body. If you must legalize, I would just cut and paste from the alcohol regulations each state has; it’s a known style and easy to relate to people.

Overreaching. One of the main flaws of this bill was its overreaching clauses. The protection of workers who use marijuana by limiting firing only if “actually impairs job performance” is a bit much, especially since California is an “at will” state, meaning that an employer can fire you for any reason (as long as it’s not racial). An employer should be able to terminate any employee for any reason, unless contractually prohibited. Though marijuana impairment is overblown if an employer feels that marijuana use is counter productive to his business he should be able to fire someone for it. This is the type of clause that can spoil the rest of the bill because it is an easy attack point for prohibitionist to exploit. It leaves open the window to the “see its just stoners trying to be high all the time” argument, which sadly still convinces many of the voting masses. Like I stated earlier, short, simple, and to the point is how a bill like this is going to pass, not with fancy regulations and protections. You have to convince people that the status quo will for the most part be untouched, just some text on some paper changing. When you get complex, people get scared and don’t want to step outside of the box.

Overblown Arguments. While this bill was going to change things, the truth is it was not the panacea that anti-prohibitionist claimed it was going to be. It would boost state revenue and cut law enforcement/jailing costs but not at a level to save California from its budget problems. The highest estimates of tax revenue generation from Prop 19 were $1.4 billion yet California budget deficit is about $25 billion. Even if you factor in the reduced cost from law enforcement you’re still very far away from solving those problems. The taxing revenue estimates however were still just based on assumptions because with the crazy regulatory framework this bill proposed the taxing schemes would be dramatically different from region to region. Then of course there are the arguments that it would end the Mexican drug cartels and gang violence. While I admit that it might end the drug cartels operation in California, they will just shift to another state. One state alone cannot end the drug cartels’ hold on the black market if there are other black markets for them to move to. Gangs I doubt would really be affected much. With the current medicinal framework, marijuana is pretty easy to access, so while I haven’t researched this claim, this tells me that gangs have most likely already moved to different drugs for funding. This of course is an argument as to why all drugs should be legal, but I’ll leave that for other posts.

By focusing many of the arguments for Prop 19 on these two points — tax revenue and gang violence — many people declared “shenanigans” and refused to support the bill. Common sense arguments like that it really isn’t changing much, or our current laws are good but this is the next step would have in my opinion been more effective. As I stated above, change can be scary, so showing people that the change isn’t that much is more effective than claims of budget solvency and ending gang warfare.

Maintaining the Left/Right Divide. This bill was promoted as a “progressive” move, and therefore labeled “left wing.” This election year was about a conservative backlash. Liberals rarely, even in California, had someone to actually get them down to the polls. Many on the left even openly stated they thought that Prop 19 was going to help them since it could drive out the youth vote. From its outset it was seen as “left wing” and the groups involved in it were “left-wing” groups. Left-wing firebrand Fire Dog Lake spearheaded the media push. As endorsements from the NAACP to SEIU and a big fat check from George Soros came in, it was obvious that the right did not feel welcome when it came to this type of a bill. This isn’t helped with clauses like I explained above. Of course, traditionally the social right will always promote prohibition, but the business right was ignored on this. Perhaps showing how many right wing hero’s like William Buckley and Milton Friedman support ending prohibition. Focusing on the benefits of Hemp production can also promote those who want to focus on the business aspects of ending prohibition. Let groups like CEI or the Cato Institute, who have a well known conservative base, push for it and get some of the media attention. Try to get some major Church’s and faith based leaders to support it for moral reasons. Focus on the “state’s rights” issue or constitutionality issue of our current drug laws, topics those on the right are more open to hearing. There is a bi-partisan agreement on this issue; you just have to frame the issue better. Remember the “progressive” California passed a ban on gay marriage and just failed to legalize cannabis. Conservatives can prevent even the most liberal state from being more and more liberal. So it is important to not leave them out of the loop one a referendum bill.

These are just some of reasons why Prop 19 failed to pass, but what does this show us for the upcoming push in Colorado and California again in 2012. First scale back the bills to just the basics. No fancy legalese, no special class protections, just simple text that is explicit on what you’re trying to accomplish. Secondly use common sense arguments and refrain from national claims based on local legislation. I, myself am guilty of doing this sometimes. When you go extreme on one claim it can cast doubt on validity of the others, simply due to mistrusting of the messenger. This can lead to the swing voters you need backing away from supporting you. Don’t let one rotten apple spoil the whole bunch. Third and finally, don’t count on just one side of the isle to pass this. If there ever was an issue for both conservatives and liberals to agree on, it should be ending the drug war. There are valid arguments from both liberal and conservative perspective as to why this is a failed program; you just have to communicate this better. I know in California the left rules the castle, but the right is still needed to get things done. You cannot ignore either side when trying to pass something. For another view on what should be done read Jeffery Miron’s view on Prop 19’s failure

So as we march on to 2012, we at least now have a case study to work off. We will have two states pushing for full legalization this time, with other trying again for medicinal marijuana. If we learn from our mistakes, do our best to correct them, and keep at it, we can get this passed. It’s only a short two years away.

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