Legalisation in Ohio - Let's make this the last time we mess it up

 

Update: The results are in and the cannabis legalisation initiative (Issue 3) has been soundly defeated by 65% to 35%. (the anti-monopoly issue 2 initiative was passed) Good analysis of the result from John Hudak at Brookings and Chris Ingraham at the Washington Post. See Postscript below

 

Ohio goes to the polls today in the latest state level ballot to legalise and regulate cannabis. Normally this would be cause to celebrate and cross fingers for a win - but this initiative has divided opinion even within the reform movement. The initiative is an example of what could be called regulatory capture; where control over the regulatory system is captured by those investors who seek to benefit from it. The initiative will put in place a constitutional amendment that grants monopoly (or technically oligopoly) control of production to 10 producers who just happen to the the investors behind the initiative. Now this would be obnoxious for *any* commodity, but for reform advocates like Transform, and many others across the US and wider world, there's a profound sense of disgust; this just isn't what we've been fighting for.

Having battled for amost 20 years to create the space for reform to flourish, we now have a responsibility to work with policy makers and embrace the unique opportunity cannabis reform presents - to learn from mistakes made with alcohol and tobacco control (only now beginning to be rectified) and build regulation models that prioritise health and well being over commercial profit from the outset. In the absence of principled leadership from Governments (with the honourable exception of Uruguay) civil society has had to step up and drive change. But with the influence that money can buy over ballot initiatives, businesses are increasingly moving into that space, at least in the US - and they, unsuprisingly, have their eyes on the cash, and not public health goals. Business involvement in policy development or research funding need not neccassarily be a bad thing - it can be both important and useful in the right context - but the potential for corrupting the policy making process is also obvious.

In Ohio, corruption of process has played out not just through the ugly monopoly structure the clique of investors have granted themsleves, but in a bill that has many problems. The experts from Drug Policy Alliance have stepped in and remedied some of it - but this was a belated harm reduction role only; they are not formally endorsing the initiative, just trying to make it a bit less awful (had they been drafting from the outset we wouldnt be having these problems). And if we needed any indication of the mindset of the initiatives promoters we need look no further than the embarrassing, and frankly moronic 'bud buddie' mascot used to promote the yes vote. They could hardly have done more to undermine the years of patient advocacy for responsible regulation if they tried.

The initiative also hands a potential propaganda coup to the opponents of legalisation, entirely needlessly. If it wins, they bolster their narrative about cannabis being the next 'big tobacco' - a silly argument in many respects but one that may gain traction in the wake of Ohio. And if it loses they get to claim that the momentum for reform is stalling, and reform is not inevitable. This last point is nonsense of course. The polls show clear majority support for legalisation in Ohio, even though support for the initiative is split evenly. Frustratingly the discrepancy is due to the unpopularity of the initiative, not the prospect of legalisation and regulation in itself. If the ballot fails the initiative's backers will have no one to blame but themselves; A responsible and more carefully constructed Bill, like Oregon's winning 2014 effort for example, would have walked it - and everyone would be a winner.

So we are left in the awful position of having to decide whether we would rather have a horribly flawed legal setup, or continue with the disaster of prohibition until something better comes along. That we are even questioning support for a major legalise and regulate initiative is testimony to just how bad this initiative looks - and the resentment from the reformers is entirely understandable. Some, like NORML, have prioritized the interests of the users over who it is gets rich, and essentially said 'hold your nose and vote yes'. Others like MPP have seen differing views emerge within the team, Tom Angell from Marijuana Majority has been overtly opposed, whilst DPA has been highly critical but ultimately sees the net benefits of a Yes likely outweighing a No. I respect all of these positions - for most this has been a difficult and unwelcome choice to have to make at all.      

Personally I cant possibly endorse Issue 3 - aside from its OK elements (and its not all bad), there's just way too much wrong with it for to pass the tolerance test. I dont care about people getting rich and I don't have a problem with commercial entities in the cannabis market - that's going to happen anyway. I do care when money in the market place corrupts policy and law making process so severely that policy priorities are reversed in the primary interests of a few greedy and demonstrably irresponsible investors.  It doesnt have to be like this either - there are plenty of options for appropriate forms of regulation, non profit market entities, or even government controlled monopolies (more like the Uruguay model).  But there is more at stake; Ohio sets an absolutely dismal precedent for other US states and for the rest of the world, and I honestly don't know whether the benefits of ending prohibition for Ohioans (who already have an OK cannabis decrim policy) are outweighed by the potential political costs for the movement of such a reprehensible regulatory structure.  I certainly wont be desperately disappointed if it loses (unlike previous state ballots, or next years big show down in California).

But, even a Yes vote could see the Ohio initiative entangled in legal disputes for years. Another initiative (issue 2) has been placed on the same ballot that would forbid initiatives that make constitutional amendments that grant monopolies - precisely what the cannabis initiative (issue 3)  does. Indeed issue 2 has evidently been designed with the purpose of nullifying issue 3.  There is legal disagreement over whether it will or not - but if its Yes, buckle up; its going to be messy

It's also been argued that this debacle will be a one off. None of the five or so other state level initiatives in train have anything anywhere near as bad as the Ohio monopoly provision, and its political costs wont have escaped the notice of other businesses looking to invest in policy change as well as the opportunities that follow it. Perhaps the best outcome would be a narrow win followed by a successful legal challenge to the monopoly provision (if that's even possible without taking down the whole initiative - we are in unchartered waters here).

Whatever the outcome - this episode has needlessly damaged the reform movement. We urgently need to reflect on the increasing influence of cannabis industry cash in the reform process and make sure nothing as dire as the Ohio monopoly happens again. Public health and well being has be prioritized over commercial profit - always.

Post script:

The initiative has lost - and if the worst we have to suffer is some smug tweets from reform opponents and a few more years under decrim instead of legalisation in Ohio, this is no disaster, especially given the majority support for reform in both Ohio and the US. Just to reiterate - if we want to make sure we dont make this sort of mistake doesn't happen again its vital that both refrom advocates and potential backers learn the lessons from the terrible decisions that led to his defeat. There was no reason for this to happen - it was simply greed and hubris.

this is what Marijuana majority's Tom Angell had to say:

“When it comes to the broader debate about legalizing marijuana, the defeat of Issue 3 won’t be a case of ‘as Ohio goes, so goes the nation.’ This was about a flawed measure and a campaign that didn't represent what voters want. Tonight’s results — and the choices that inevitably led up to them — are especially sad for Ohioans who use marijuana and will continue to be treated like criminals for no good reason. And this is particularly heartbreaking for those who need medical cannabis to treat serious ailments.

"It’s a shame Ohio voters didn’t have the opportunity to consider sensible legalization in 2015. Hopefully it’ll only be another election cycle or two until a more responsible team secures enough funding to put a better initiative on the ballot. Perhaps even the same group of investors cares enough about the real reasons for legalization to humbly receive the message Ohio voters just sent and try again in 2016 with a smarter proposal that establishes a more fairly regulated market.

“Several polls leading up to Election Day showed that a clear majority of Ohioans support legalizing marijuana, but voters won't tolerate this issue being taken over by greedy special interests. Our ongoing national movement to end marijuana prohibition is focused on civil rights, health and public safety, not profits for small groups of investors. This campaign also turned off many long-time legalization advocates by irresponsibly using a marijuana superhero mascot as a prop, which unnecessarily stoked our opponents’ fears about marketing to kids.

"A majority of Americans support legalization, and that’s why we’re going to see a large number of states voting on — and passing — truly responsible marijuana ballot measures next year."