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The New Potency of Pot

Endorsing legalization might not be as politically promising for Democrats as it seems. They should go for it anyway.

Sen. Cory Booker at a hearing.
Sen. Cory Booker looks on during a Senate Foreign Relations Committee meeting at Dirksen Senate Office Building on Capitol Hill on March 15. Justin Sullivan/Getty Images

On Thursday, Attorney General Jeff Sessions threatened the burgeoning legal marijuana industry by rescinding an Obama administration memo that effectively ensured states could legalize pot without federal interference. Before Sessions’ reversal, the Obama administration’s decision to allow states to try legal marijuana and Donald Trump’s initial support for those state-based experiments seemed to establish how far and fast the policy conversation on pot has moved since the end of the previous decade, when legalization was still considered a punchline. That joke is now bringing hundreds of millions of dollars to state governments, is projected to create more than 250,000 jobs by 2020, and could ameliorate vast inequities in a criminal justice regime that egregiously impacts minorities.

All of this seems to be moving public opinion very quickly, and the growing consensus among pundits is that Democrats should think about catching up. An October Gallup poll found that 64 percent of Americans back full legalization—a figure that has increased by more than 15 points in five years. Moreover, a CBS News poll from April found that 71 percent of Americans would oppose a federal crackdown on pot businesses in states where marijuana has been legalized. “Democrats: Stop being freaking nerds and tack marijuana legalization onto your national platform,” Splinter’s Emma Roller wrote that month (yes, on the 20th). “Because honestly, what do you have to lose at this point—more state legislative seats? Do I really need to sit you down and explain to you that people—and especially young people—like marijuana, and will vote for candidates who support legalizing it?”

As contenders in the party’s already crowded 2020 field try out potentially distinguishing stances, at least two hopefuls have signaled they might not need that talking to. Cory Booker’s  Marijuana Justice Act, introduced in July, would not only legalize pot but also allow resentencing and record expungement for those convicted of federal marijuana offenses, cut law enforcement funding from states that disproportionately arrest and imprison minorities for marijuana offenses, and allocate $500 million for reinvestment in communities impacted by the war on drugs. Bernie Sanders, who might also run in 2020, supports descheduling marijuana and allowing states to set policy. Then there’s Kirsten Gillibrand, a co-sponsor with Booker of the CARERS Act, which would protect medical marijuana operations from federal intervention and facilitate marijuana research. She responded to Sessions with tweets focusing mostly on medical marijuana patients, as did Elizabeth Warren, who has co-sponsored a bill that would allow banks to service marijuana businesses without federal intervention. Kamala Harris, who called for the decriminalization of marijuana last year defended her state, which began legal recreational sales just this week. “Jeff Sessions should drop his agenda to re-escalate the complete failure that was the ‘War on Drugs’ and leave California alone,” her tweet read.

Of course, the war on drugs never really ended. President Obama, whose administration nodded to drug reformers with the Cole memo and drug commutations, and disappointed them by refusing to reschedule pot unilaterally, bears no small share of responsibility for that. To little notice, Hillary Clinton argued for the classification of marijuana as an Food and Drug Administration–regulated Schedule II drug during her campaign—troubling those in the cannabis industry who have said navigating medical regulations could be even more of a headache than the status quo. 2020’s top contenders as a whole appear more progressive on the issue than either of them, but only Booker and Sanders are conducting themselves like candidates who know recreational marijuana has broad and growing public support.

Marijuana advocates and voices on the party’s left argue this reticence leaves votes from young and minority voters on the table. At first glance, polls seem to bear this out. In August, Quinnipiac found that 71 percent of voters younger than 35 support legalization as well as 65 percent of nonwhite voters. But this is a different question from whether the prospect of legalization significantly increases turnout among those voters. As of now, government data indicate it does not, at least for young voters. As FiveThirtyEight’s Harry Enten has written, the Census Bureau’s numbers show that the 14 marijuana state ballot measures between 1998 and 2014 corresponded with, on average, a 0.2 percentage point drop in youth turnout overall and a 0.1 percentage point increase specifically during midterms. This isn’t terribly surprising—support for legalization might be growing quickly, but slightly fewer than a third of Americans strongly support it.

Legalization is not, today, a vote-driving issue for most Americans or even those Americans more likely than others to say they support it. That does not mean, however, that it can’t become one. It’s possible that the promise of full legalization at the federal level might be a better driver of turnout than state initiatives. More critically, it is also fully plausible that the Democratic Party could increase the salience of marijuana as an issue by making legalization central to campaigns, talking loudly about the failings of prohibition, and offering proposals both concrete and bold in the vein of Booker’s Justice Act. Promises to restore the Cole memo, timid policy planks focusing largely on medical marijuana, and throwaway lines about decriminalization cannot reasonably be expected to make substantially more voters go to the polls for a Democratic candidate than would normally do so.

Democrats should also consider the likelihood of countervailing rhetoric from the right, even though legalization has picked up not inconsiderable Republican support over the past several years.  Much has been made of Gallup’s finding that 51 percent of Republicans back legalization. Colorado’s Cory Gardner, one of a handful of Republicans representing the party’s pro-pot constituency in Congress, is reportedly responding to Sessions with a push for congressional action to protect states like his that have legalized recreational marijuana. This is encouraging, but there’s reason to believe Republican attitudes could shift quickly and dramatically if marijuana were to become the center of political attention. There were tentative moves toward criminal justice reform by Republicans in Congress late in Obama’s second term. All came to a halt with the election of Donald Trump, a “law and order” candidate who intones about “American carnage” as crime remains near historic lows. Trump’s rhetoric, the prevailing mood on the right, partisan polarization, and persistent narratives about race, drug use, and crime, collectively suggest a marquee debate on legalization could be ugly and fractious, particularly if Democrats follow Booker’s lead in tying legalization to restorative measures that would help black Americans as disproportionately as they are hurt by current policy.

Already, there are glimmers of where Republicans might take such a debate. In April 2016, Sessions urged “grown-ups in Washington” to send the message that “good people don’t smoke marijuana.” If so, America is quite obviously in a state of moral crisis. Surveys indicate that perhaps a majority of Americans have tried pot while more than a fifth currently use it—that’s either a basket or several dime bags of deplorables depending on how broadly Sessions meant his indictment. On Fox & Friends on Tuesday, Ainsley Earhardt warned that the bad people using marijuana in California could soon be joined by unsavory, pot-smoking immigrants now that the state has both gone through with legalization and declared itself a sanctuary for the undocumented. “Not only if you’re illegal you’re welcome in California,” she said. “Also if you want to get high, you are welcome there, too. So you can be illegal and wasted on marijuana and live in that state and be just fine.”

If the right is as unreliable and given to demagoguery on the issue as it seems to be, the prospects of federal legalization in the near future could depend almost exclusively on the vision, willpower, and political courage of the Democratic Party. That should concern advocates.

But if resolve is in short supply, activists should badger ambivalent or hedging Democrats into getting on the right side of the issue. The fact that voices on the right might endorse the Trump administration’s crackdown as a strike against the minorities Republicans believe are corroding law and order makes it all the more imperative— substantively and politically—for the Democrats to move swiftly away from prohibition. If they do, it will be indicative of the party’s capacity to shed defensive gradualism in favor of good, ambitious policy. Whether or not marijuana in particular drives more voters to the polls, a party that champions and enacts legalization will certainly seem a more compelling and convincing agent of change. And the promise of change—at least as intoxicating as pot and considerably harder to come by—generally polls pretty well, too.

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