A Long Strange Trip to Legalizing Medical Marijuana
As things now appear, you will be able to vote “yes” or “no” in November on each of three ballot propositions to legalize and regulate medical marijuana in Missouri. This is complicated but worthy of your attention. I do have some opinions on these three that I hope will be helpful.
To start, a little history will give us context. I remember a rumor from 50 years ago that a major tobacco company had trademarked the label “Tijuana Gold” in anticipation of the legalization of marijuana. This of course was your father’s and mother’s marijuana, a collection of crumbled leaves and a few seeds packed in a pipe and smoked. A drug with the nastiest legal classification, one that carried a three-year mandatory minimum prison sentence in the state where I first experienced it, a drug that packed all the wallop of a mild sedative, a drug so soporific that it caused many of us to stay mostly with our previous drug of choice – beer.
I speak of my generation, more or less, the generation of course that believed it invented marijuana. Also, for the record, sex and rock and roll.
“Pot” became an easy symbol of the 1960s generation’s revolt against war, racial injustice, and economic inequality. The push for gender equality was coming but needed to get pushier, and the 1969 Stonewall Uprising of gay people began working its long-term magic but not very publicly.
Pot and its image of disorder helped spawn the war on drugs, with its racial underpinnings, and the cultural clashes that have continued to poison our politics for the past five decades. Idealism has been trumped by cultural distractions. Some things have gotten better, some things worse, but the center currently seems to be losing its grip on our political system. That’s the big picture.
In this same time period, the past 50 years, there has been a revolution in the botany of marijuana – the mildly sedating drug of the 1960s was morphed to THC (tetrahydrocannabinol) concentrations many times greater, with offspring that produced genuinely useful medicine. Though study of its medicinal effects has been stifled for years by its legal classification, pot has persisted.
And here we are, with the generation of the 1960s that failed to get its commercial “Tijuana Gold” – along with failing to end the Vietnam War, failing to end the war on drugs and a whole lot of other stupid wars in between -- now enthusiastically embracing the movement to legalize medical marijuana. Marijuana might ease this generation’s aches of aging and make its transitions to the next life easier and less painful. Pot also may be a substitute for harder drugs – opioids, some of which have major pharmaceutical corporate sponsorship -- that are killing large numbers of our generation’s children and grandchildren. Whatever. We have arrived and the public, and many of its politicians, are there, too.
I think of my high school friend Martha, terminally ill with cancer a few years ago in a Minnesota hospice affiliated with Mayo Clinic. Her friends gave her a ride off the premises every day for her dose of marijuana, with the approval of her caregivers who were legally bound not to help. (Minnesota has since legalized medical marijuana.)
So here we are, with a public that is, if anything, ahead of and increasingly wary of some of its politicians who have relied on the cultural symbols of the drug-war era to get them to vote against their economic interests.
Pot persists. About 93 percent of Americans now support legalization of medical marijuana (Quinnipaic Poll); 29 states and the District of Columbia have done so. Sixty-four percent of Americans, including a majority of Republicans, support full legalization, according to the Gallup poll.
In Missouri, the show-me state, we very well could lose, even with 93 percent. How?
We have not one, but three proposals likely to make the November ballot because their proponents have submitted what seems to be adequate numbers of signatures.
Although none has been officially certified, I am using the ballot numbers and letters that the Secretary of State is expected to assign to each when approved. The three proposals are:
1. Amendment 2. The New Approach Missouri petition for a constitutional amendment, organized by a group of political activists and endorsed by the National Organization for Reform of Marijuana Laws (NORML).
2. Amendment 3. Find the Cures, which we can call the Bradshaw petition for its initiator and self-funder, Dr. Brad Bradshaw, J.D. M.D. Bradshaw proposes a constitutional amendment.
3. Proposition C. Missourians for Patient Care, an organization that includes lobbyists and activists, sponsors the petition for statutory changes – it involves no changes to the state constitution.
What happens if two or all three of these ballot propositions receive more than 50 percent of the votes? A warning: I am about to talk legal – the opinions are mine; others may have a different opinion. The past provides little guidance because we apparently have not been so lucky as to have three ballot measures at once on the same topic.
The Missouri Constitution, fortunately, gives an explicit answer: “…(A)ny measure proposed shall take effect when approved by a majority of the votes cast thereon. When conflicting measures are approved at the same election the one receiving the largest affirmative vote shall prevail.” (Article 3, section 51.) (Emphasis added.)
These Missouri constitutional provisions – in Missouri Constitution Article 3, sections 50 and 51 – that govern the initiative process do not distinguish between propositions for constitutional amendments and propositions for statutory changes. I originally had thought that a constitutional provision would prevail over a statutory provision. But I believe I was wrong. All propositions – constitution and statutes – are “measures” to be submitted in separate proposals to the voters. In the current situation, these three ballot measures conflict with one another in important ways. There seems no way to reconcile them; they are “conflicting measures.” As our Constitution dictates, the one receiving the largest affirmative vote – assuming that vote is a majority – prevails.
In short, it is “winner take all.” And each voter gets to vote separately on the three of them.
Here I bring a word of caution: With three competing ballot measures we may see negative campaigns against one or the other because their backers may want to “educate” the voters as to which proposal is best. With negativity there is the danger that the voters will conclude that all marijuana proposals are bad. There is a reason Coca Cola does not tell us not to drink Pepsi because Pepsi is bad for us… we might get the idea that all cola products are bad for us. With sufficient negativity, all three proposals could get fewer than a majority of votes – and all could fail.
Now that I have read the fine print, I am mortified by my inattention to detail. I wake up in the remorseful sweat that I may have signed the petition for the Amendment 3, the Bradshaw proposal, which, among other things, would do the following:
1. Amendment 3 sets up a nine-member Research Board to control all aspects of marijuana – cultivation, production, licensing of facilities, and sale of medical marijuana – and imposes a flat tax of $9.25 per ounce of marijuana flowers, $2.75 per ounce of leaves, plus 15% of the sale price. At that level of taxation and regulation, the black market undoubtedly will continue to thrive.
2. Amendment 3 would ban the retail sale of marijuana, except medical marijuana with a doctor’s permission at authorized dispensaries. If a current or future legislature wants to legalize marijuana for other purposes, too bad – because the constitution would not allow it. The voters would have to change the constitution again.
3. The initiator of the Amendment 3 – Dr. Bradshaw himself, presumably – initially would appoint members of the Research Board. Two of the three branches of government – which we learned in civics class are the executive and the legislative branches – are cut out of the process. In short, Dr. Bradshaw would be the founding father of his own government. I call the Research Board a “government” because it collects taxes, issues bonds, regulates the marijuana products, grants and revokes licenses, and is to use taxes to build a research institute in search of cures for incurable diseases.
The Research Board, whose members are physicians and pharmacists who also hold PhDs or law degrees, or are Nobel laureates, are appointed by the Research Chairperson. The Research Chairperson is a board member elected by the Board. These nine highly degreed board members would be paid at least as much as the Chief Justice of the Missouri Supreme Court.
I could get further into the weeds explaining this convoluted process but I would be painfully testing your attention span. Suffice it to say this is an entity that has all sorts of governmental power, with little or no relation to an actual elected government. But its web site does hold out the promise of 6,000 high-paying jobs and that the profits of its medical research eventually could eliminate the state income tax. That’s a really big set of expectations for a measure whose ballot title has a “fiscal note” that tells the voters that the measure would raise annual taxes and fees of only $66 million.
When I said that the Amendment 3, the Bradshaw amendment, shows no respect for how government operates, I did not mean to excite those who dislike government. To be explicit, the amendment allows an appointed board – not appointed by a governor and confirmed by a senate, but appointed by an unelected citizen – to regulate an industry, operate a tax-funded research facility, and control and spend hundreds of millions of dollars with no accountability to the voters.
Amendment 2, the New Approach proposal, which I believe is the only acceptable proposal for a constitutional change, is far, far less grandiose than Amendment 3, the Bradshaw proposition.
Amendment 2 simply allows doctors to authorize patients to buy, and dispensaries to sell, marijuana for the treatment of a variety of conditions for which it may be effective. It does not prohibit the legislature from legalizing marijuana for other purposes, including recreation.
The Amendment 2 tax is reasonable -- 4 percent on retail sales. The New Approach proposal, if approved by the voters, would rely on the established instruments of government to assure that the money gets to the places the law intends and that elected officials – or those for whom elected officials are responsible – are in control.
The New Approach Amendment 2 measure permits patients to grow a small amount of their own marijuana. The other two proposals do not allow this. All medical marijuana proposals sound like government-sanctioned cartels that control the market for their products. The New Approach Amendment 2 model, with a little grow-your-own, offers some relief from this cartel feature.
Like the New Approach proposal, Proposition C, the statutory proposition of Missourians for Patient Care, also is acceptable as a way of legalizing medical marijuana. Proposition C, the Patient Care statute, would impose a two percent tax – lower than the New Approach Amendment 2 proposal -- divided into four pieces, with equal portions for veterans’ health, public safety, drug treatment, and early childhood education and development.
While these respective proposals’ tax provisions are in conflict, neither proposition would tax marijuana so high as to keep the black market in business – which is what the Bradshaw Amendment 3 proposal would do.
If the New Approach Amendment 2 measure wins the race – and congratulations to all of you who worked to get it on the ballot – and gets more votes than the Bradshaw Amendment 3 and the statutory proposition, Prop C, its constitutional provisions will govern how medical marijuana is implemented. Like the Prop C Missourians for Patient Care proposal, the New Approach Amendment 2 provisions are ready to go within the existing structure of our government. Its provisions would be in our well-cluttered constitution and, therefore, largely out of the reach of legislative meddling.
If the statutory Missourians for Patient Care Prop C wins the race, implementation of medical marijuana will be subject to change by the legislature, which has the authority to re-write statutes enacted by voters. To be fair, this can be a good thing or a bad thing. It is a good thing because if there are flaws, the legislature can fix them without going back to the voters. It’s a bad thing, however, if the legislature passes laws to make implementation more difficult or imposes additional taxes or restrictions.
So your choice of which for these two proposals to vote for depends on how much you trust your elected representatives who serve in the legislature. New Approach in effect says do not trust them. I am agnostic on this point; I have seen the legislature do the right thing, and I have seen the legislature do the wrong thing. To New Approach’s point, the legislature thus far has rejected bills that would legalize medical marijuana, and the criminal laws it has enacted currently result in prison for quite a few Missourians whose highest level of offense is marijuana possession. My sense of faith and my mild cynicism born of experience, however, both tell me the legislature is most likely to do the right thing where their constituents are overwhelmingly in support, a support that I hope will be manifest in November.
If the Bradshaw “Find the Cures” Amendment 3 proposal wins the race, patients in dire straits who want medical marijuana might consider moving to Illinois. Bradshaw’s marijuana government – largely unrestrained by our elected government – is likely to be challenged in court. A court challenge would delay, and ultimately may derail, the availability of medical marijuana in Missouri. Millions of campaign dollars may be spent to tell you this is not so, that Missouri will be a paradise of abundant high-paying jobs and low, low taxes if only we vote for this cockamamie scheme. To the contrary, the Bradshaw Amendment 3 proposal looks like an accident waiting to happen.
Voters can vote yes or no on each of the marijuana proposals on the November ballot. As matters now stand, it is likely that I will vote “yes” on both the New Approach Amendment 2 proposal and on the Prop C Missourians for Patient Care statutory measure, and “no” on Bradshaw’s Amendment 3.
Why vote for two, when only one can win? Simply this: As things stand now, one of these two acceptable proposals will have to get the most votes if medical marijuana is to become a reality in Missouri. One or both will need a majority of votes. The conduct of the campaign, its negatives and positives, may help me answer this question: If I fail to vote for one of these acceptable propositions, am I giving some advantage to the one that is unacceptable?
In making this voting gamble, we should refuse to make the perfect – which does not exist – the enemy of the good, which comes here in two flavors. If we choose both flavors, we can, I hope, get one of the good ones and avoid the awful one. Good luck to us.
Michael A. Wolff