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Marijuana Legalization’s Tipping Point

Colorado, Washington, and Oregon will decide on historic reforms in November.

Allen St. Pierre has waited for marijuana legalization since 1991. Well, longer than that — but that was the year he started working at the National Organization to Reform Marijuana Laws (NORML). So every election cycle his job is to cheer on the latest pro-marijuana initiative as though it will be the breakthrough the movement needs.

This time, the reality may be so close, he almost seems hesitant to gild the lily.

“It’s clear we’re on an upward trend and one of these two states could break through and cross the Rubicon and set up an incredible government challenge,” St. Pierre told TAC, referring to Washington state and Colorado, where marijuana initiatives have the best chance of passing on Nov. 6. Current polling shows that majorities in both states support the measures.

Elsewhere in the U.S., pro-marijuana referenda include a wide-ranging legalization measure in Oregon, initiatives calling for brand new medical marijuana laws in Arkansas and Massachusetts, and an effort to reverse the legislative gutting of medical-marijuana access in Montana. Seventeen states and the District of Columbia now have medical marijuana laws on the books.

Not since the failed California initiative to fully decriminalize and regulate the sale of cannabis beyond medicinal access has there been such a powerful opportunity to re-frame and advance the debate on marijuana reform. The legalization movement has benefited from a new approach, appealing to middle American sensibilities about the failure of the drug war and the hard lessons of prohibition. It is also gaining traction with fiscal conservatives who would rather tax marijuana sales than shuffle thousands of drug offenders through courts and prisons each year. According to this fiscal impact study, for example, the State of Colorado expects to save $12 million and raise $22.6 million in the first year of legalization through marijuana sales tax and licensing fees (embedded in the Colorado amendment is a clause mandating that the first $40 million raised be earmarked for a public school construction fund).

“For too long this [issue] has been ignored or treated as some Cheech & Chong joke,” said Tom Angell, a representative of Law Enforcement Against Prohibition (LEAP), a national organization of cops and criminal justice experts — both active and retired — dedicated to “speaking out about the failures of our existing drug policies.”

He pointed to the most recent Gallup Poll asking Americans whether marijuana should be legal. For the first time since Gallup started asking in 1969, more than 50 percent said “yes.”

“More people are recognizing that we cannot afford to continue arresting and prosecuting and locking up people for marijuana,” Angell says. “State legislators and city councilors across the country are now asking themselves, are we going to pay to arrest people for pot or fill some pot holes in the town?”

Most Americans understand that marijuana prohibition — much like the ban on liquor in the 1920s — is fueling a violent black market and bloated prison system, he added. In an era of shrinking state and local budgets, people are sensing the wisdom of redirecting those resources into fighting violent crime like murder and rape, and bolstering drug treatment and education efforts.

“We have people from all over the political spectrum,” Angell notes. “People are more comfortable speaking out.” And the support is coming from some unlikely places. Earlier this year, televangelist Pat Robertson told the world he supported legalization. In 2010, Sarah Palin generated headlines when she called pot a “minimal problem” and suggested “there are other things our cops should be looking to engage in.” Former Republican congressman Tom Tancredo recently endorsed Amendment 64 in Colorado, and GOP Senate candidate Michael Baumgartner has endorsed legalization in Washington.

“The shift in public opinion,” Angell explains, “is happening so rapidy.”

In Colorado, Amendment 64: Regulate Marijuana Like Alcohol Act of 2012 enjoys a wide swath of support from retired police officers, the NAACP, clergy, the Denver County Republican Assembly, and the State Democratic Party Convention, virtually insulating it from the typical attacks in which hippie dopester caricatures abound. The measure would amend the Colorado state constitution to make it legal for individuals over the age of 21 to possess up to one ounce of marijuana and/or grow up to six plants. It would allow the state to tax and regulate its sale, while maintaining current medical marijuana laws.

The major effort against it, a campaign called Smart Colorado, is headed by Wade County District Attorney Ken Buck, a controversial Republican who unsuccessfully attempted to ride the Tea Party wave into the U.S Senate in 2010. Smart Colorado, according to Colorado news reports, is operated by cadre of Denver lobbyists and funded mostly in part by Florida strip-mall tycoon and major Republican contributor Mel Sembler.

Sembler, a big-time donor to neoconservative national-security causes, according to RightWeb, is also a big anti-drug warrior and the founder of Straight Inc., a residential “tough love” teenage drug-treatment program that was forced to shut its doors in 1993 after numerous accusations of excessive physical force, psychological abuse, and at least one conviction of false imprisonment. Sembler now heads the Drug Free America Foundation and enjoys the support of prominent Republicans like George W. and Jeb Bush.

Still, the pro-Amendment 64 campaign is better funded. Supporters have invested $800,000 for advertisements to run throughout the month. Much of the $1.1 million raised by the pro-marijuana campaign was donated by Peter Lewis, the billionaire behind Progressive insurance. Lewis has been bankrolling a number of the initiatives this year and all told has put between $40 million to $60 million into the cause nationwide since the 1980s, according to a profile by Forbes.

Meanwhile, the Washington legalization initiative, known as I-502, is also attracting attention for the money it’s raised — more than $4 million, mostly from Lewis, George Soros, and Ethan Nadelmann. While the most recent survey has the majority of voters supporting legalization in Colorado 51 percent to 40 percent with the rest undecided, the measure is leading in Washington 57 percent to 34 percent.

Initiative 502 is succeeding in the polls despite infighting between the pro-legalization campaigners and those representing the medical-marijuana community, reminiscent of the fractious nature of the failed California vote, in which northern California growers and distributors actively campaigned against Proposition 19. Critics said it was because of self-interest, but the growers and distributors insisted the law was poorly written and smacked of  government overreach.

In Washington, the medical marijuana community says it’s concerned about a measure within the referendum that incorporates strict new rules for driving under the influence of drugs (DUID) that do not take medical-marijuana users into account.

Oregon’s measure is more extensive and contentious, and lacks the money and hefty organized support of the other two states, making it the least likely to pass legalization. “Oregon’s Measure 80 seems to be the step child — it comes to the dance late, it doesn’t have a pretty partner and it’s pretty broad and idealistic,” observed St. Pierre.

The big question is, what would the feds do if marijuana is legalized in any of these states? Surely they do not have the resources to arrest every small-time user and grower but are likely to continue to go after sellers.

Marijuana is still considered a Schedule I narcotic under the federal Controlled Substances Act and therefore quite illegal. Marijuana reformers have been completely bewildered over President Obama’s crackdown on medical marijuana facilities, particularly in California and Colorado. His Justice Department has been more aggressive then his predecessor’s, which is not what they had expected.

“We do know the government will oppose the will of the voters, as hard as that is to believe,” St. Pierre said sarcastically, noting that marijuana reform will likely come before the U.S Supreme Court again, where it has already been defeated, most recently in 2005. The U.S Court of Appeals for the D.C district has agreed to take up a case arguing against marijuana’s Schedule I designation beginning Oct. 16.

Meanwhile, the hope is that public opinion will continue to shift in favor of legalizing marijuana. “It’s going to take the grassroots building of support to show federal politicians that there is support for this, and that it’s not a third rail they can’t touch,” said Angell.

“And” he added, “we’re feeling really good about Election Day this year.”

Update: The Marijuana Policy Project, which plays a critical role in writing and funding marijuana-related ballot initiatives across the country, notes that it has contributed $830,000 to the Amendment 64 campaign in Colorado as of October 1. The article originally suggested that billionaire Peter Lewis had provided most of the funding.

Kelley Beaucar Vlahos is a Washington, D.C.-based freelance reporter.