Instead, pro-legalization groups including the ACLU studied exit polling, conducted their own focus group research, found moderate spokesmen, and tweaked proposals to try to build “trust” with a middle America that has grown steadily more accepting of pot use, yet, as Prop. 19 showed, remains wary of the impact of making the drug legal.
Three weeks ahead of Election Day, it now appears that at least one of those initiatives – Initiative 105 in Washington State – is heading toward passage, with some 57 percent of likely voters now backing the measure, according to a Survey USA poll taken in September. If that happens, it would be the first time a government has lifted pot prohibition, setting up a potential Constitutional showdown with a federal government that still prohibits growing, selling, and using marijuana.
But more critically, a successful legalization campaign in Washington would give the strongest evidence yet of how pro-marijuana groups can spin a winning message to the American center, even against entrenched and deputized opposition. How closely the promise of that message dovetails with the reality of legalization, however, will be the real test for broader adoption.
“I think these campaigns did learn a lot from the Prop. 19 experience,” says Beau Kilmer, co-director of the RAND Corporation’s Drug Policy Research Center.
“There were a lot of meetings after the fact and there’s some serious money [involved], all of which makes it easier to tease out potential liabilities and run a campaign where you’re doing focus groups and you have lots of televised advertisements.”
The initiatives in the three states differ slightly, but all have managed to cobble together ideologically diverse coalitions. They’ve also managed to balance societal safeguards with the promise of sizable tax revenues. Where Prop. 19 left it to municipalities to license growers and retailers, the new measures impose state regulation on the pot trade. And proponents have also picked a presidential election that’s likely to draw lots of younger voters and stuck to libertarian-leaning Western states to make their case.
In Washington State, Initiative 105 combines a 25 percent excise tax that could raise nearly $2 billion over the next five years with a ban on pot smoking in public, an intoxication limit of 5 nanograms of THC per milliliter of blood, and an exception that would allow employers to fire workers for smoking on the job.
That “not-in-your-face” tack is proving powerful enough that some of America’s biggest drug warriors are challenging US Attorney General Eric Holder to do something to help sway attitudes away from Initiative 105.
On a conference call Monday, several former senior DEA officials and directors of the Office of National Drug Control Policy said Washington should make it clear to voters that even if states pass the initiatives, pot smokers in those states would still be violating federal law.
The former drug-war officials on the conference call said that states like Colorado, which have legalized medical marijuana, have seen problems mount as a result, including reports of higher crime, more drug use by teens, and growing numbers of drug driving arrests.
On the call, former US drug czar John Walters said he thought it was “shocking” that Mr. Holder hasn’t made a statement on the referenda. “All you have to do is say things that this administration has already said. It would help enormously and I think it would defeat these measures,” said Mr. Walters.
The federal response, if any of the initiatives pass, will be critical. Obama said early on in his presidency that arresting medical marijuana users would not be a priority, although Mr. Holder said ahead of the 2010 election that the Department of Justice would “vigorously enforce” drug laws.
This year, Holder has been notably silent about the Western legalization referenda. And while Republican vice-presidential candidate Paul Ryan at one point said it’s up to states to decide, he later walked back that statement to Mitt Romney’s position, which is to fight legalization “tooth and nail,” as he recently said.
But stanching legalization at the state level may not be that easy. If voters approve such measures, it may force the federal government to adopt a nuanced approach. In Colorado, for example, the law is written so that revenues would go to schools, meaning federal enforcement could be seen as taking money away from education.
Other results could whittle away support for legalization, contends Mr. Kilmer at RAND. Lower prices – which would be inevitable if pot could be grown legally as an agricultural product – may drive more usage in other states and could seriously reduce expected tax receipts from legal weed sales, all of which may raise federal ire.
In the end, the focus of the new initiatives has been on assuring those who don’t smoke pot that the laws will actually have a net social benefit. To produce such benefits, marijuana proponents have now acknowledged, serious and complex regulatory safeguards have to be proposed, all of which means the growth of state government.
What may be playing the biggest role in the success so far of the Washington initiative specifically is that former US law enforcement officials have joined the pro-legalization movement.
In an ad running now, former US Attorneys John McKay and Kate Pflaumer appear with Charles Mandingo, the FBI’s former Seattle chief, to support Initiative 105’s licensing of marijuana growers, processors, and retailers.
"We know firsthand that decades of marijuana arrests have failed to reduce use," Mr. Mandigo says. "And the drug cartels are pocketing all the profits."
Rick Steves, the well-known PBS travel show host, is also currently touring the state, touting a pro-legalization message. Mr. Steves has said he does not believe that Washington will become a drug “mecca” if the law passes.