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How to Implement a Policy You Hate: Lessons From the Legalization of Marijuana

• February 17, 2014 • 12:00 PM

Colorado State Capitol Building in Denver, at night. (Photo: EdgeOfReason/Shutterstock)

In Colorado, voters very clearly articulated a position, and the government was compelled to follow through with it—like it or not. Is this an example of democracy at its best?

Last week, I attended a roundtable discussion at the University of Denver’s Sturm College of Law that assessed how the rollout of legal marijuana has been going in Colorado since January 1st. The panel included many of the government officials who were part of the task force that built the regulatory structure, basically from scratch, for the first legal sales of recreational marijuana.

One of the striking things about the discussion was that several members of the task force were clearly uncomfortable with, or even outright opposed to, marijuana legalization. Jack Finlaw, who works as counsel to Governor John Hickenlooper, expressed great reservations about Amendment 64, the constitutional initiative that voters approved in 2012, and noted that the Governor shared those views and had spoken out against the initiative during the election season. Finlaw quoted an unnamed state official who complimented the task force by saying, “You’ve done a really great job implementing bad public policy.”

The Obama administration signaled last year that they would not interfere with legal marijuana sales in Colorado and Washington. Nonetheless, they clearly did not want to enable drug tourism.

You could see this as direct democracy at either its best or its worse. Here, the voters very clearly articulated a position, and the government was compelled to follow through with it. I suppose the government could have stalled for a time, with the governor possibly waiting until after his re-election campaign to implement the policy, and it’s not clear what kind of electoral penalty, if any, he would have paid for that. But the government nonetheless followed through and assembled a legal structure in just a year, putting to shame some other states I might name that legalized marijuana in 2012 but have yet to allow a single sale.

How did they do it? They looked at various state models governing the sale of medical marijuana to see what had worked reasonably well and what seemed largely chaotic (like in California). They conferred with officials in Washington state about how they might be going about the task. They spoke with federal government officials about what they would and wouldn’t allow. (Remember, marijuana is still a schedule one drug under federal law.) It was a very collaborative and informed process.

The reactions from the federal government were particularly interesting. The Obama administration signaled last year that they would not interfere with legal marijuana sales in Colorado and Washington. Nonetheless, they clearly did not want to enable drug tourism, where anyone with a connecting flight through Denver could make a quick stop and grab some pot on their way to their next destination. To mollify this concern, the Colorado team sharply limited the amount of marijuana out-of-staters could buy at one time (just 1/4 of an ounce, as opposed to the ounce that residents may purchase). This, noted Denver law professor Sam Kamin, technically runs against the text of Amendment 64, which states that anyone aged 21 or older may possess up to an ounce. But it was viewed as a necessary compromise to avoid federal interference.

One burning question from audience members was the tax issue—just how much revenue have marijuana sales generated in Colorado? Unfortunately, we just don’t know yet. Sales in January won’t be tabulated until the end of February, and we probably won’t know for another month or so just how much revenue has been raised. What’s more, the status of the industry is scheduled to change over the course of the year as different aspects of the law are rolled out, so it’ll be some time before we have a sense of how good a deal, financially anyway, marijuana is for the Centennial State.

One other concern expressed by the panel was the way Colorado went about legalizing pot—via constitutional amendment. This is relatively easy to do in Colorado (requiring just a majority of the electorate) but makes tinkering with the new law more challenging. Any fine-tuning of the law (maybe reducing the number of plants people may legally grow in their houses) must be done via another constitutional amendment. Washington state, by contrast, effected legalization via statutory initiative, allowing the legislature to make further refinements.

Overall, though, this strikes me as a pretty good example of direct democracy in action. While the initiative process can certainly be abused, taking advantage of voters’ relative ignorance of public policy issues, this was a very straightforward proposition, and surely those who voted for Amendment 64 had a pretty good idea what it meant for the state. It is a credit to the state’s government that they managed to roll out a legal edifice within a year and follow the public’s will in an area where many officials were clearly uncomfortable. I imagine this will serve as a good example of policymaking as other states consider legalization.

Seth Masket
Seth Masket is a political scientist at the University of Denver, specializing in political parties, state legislatures, campaigns and elections, and social networks. He is the author of No Middle Ground: How Informal Party Organizations Control Nominations and Polarize Legislatures (University of Michigan Press, 2009). Follow him on Twitter @smotus.

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