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Up in Smoke?

Winning the legal pot loss

Some might say that you’d have to be pretty stoned to consider a loss a win. Colorado’s and Washington’s creation of alcohol-like statutes for marijuana made Oregon a bronze-at-best state for pot legalization, but marijuana policy reform advocates are riding high. And not (necessarily) from Cheech-and-Chong-like hijinks. 

Many Oregon drug policy reform advocates are calling the vote on pro-legalization Measure 80, which garnered 46.75 percent favorability, a significant success — one that makes them certain alcohol-style regulation (legal for adults 21 and older, with carefully regulated and taxed sales) is right around the corner. Just two years ago, Oregonians shot down a measure creating dispensaries for Oregon Medical Marijuana Program (OMMP) patients with just 44 percent voting yes, and advocates say that gaining about three marijuana-related points in two years — and this time for possession (for ages 21 and up) without limitations based on amount — means the tide is greening. Even President Barack “Let’s Bust All the Dispensaries” Obama has called pot prohibition a low priority.

If Measure 80 was just a slightly loser-y winner, it lost due to lack of funding for a widespread, coherent ad campaign. That lack, activists say, is probably a result of not letting all the stakeholders, including national-level reform advocates, take part in its crafting. Not to worry, Oregon advocates already have their eyes on election years of Novembers yet to come.

Even while moving forward, Oregon House Ways and Means Co-chair Peter Buckley recalls why he got passionate about weed in the first place: money. Harvard economist Jeffrey Miron told EW that he estimated that prohibition costs Oregon about $61 million per year; he also estimated legalization could bring in about $36 million in tax revenue. That’s a $97 million difference annually for Oregon’s budget. 

“I’ve worked on budget after budget that has cut funding for education; we’ve struggled to maintain funding for services for people with disabilities and seniors,” Buckley says. “It makes no sense to me to do anything in this state that is wasteful of tax dollars that can be put to a better use.”

Oregonians consider our home a pioneer state. We’re still bragging about the Bottle Bill enacted in 1971. We think we’re a little mavericky — we see marijuana as a sibling to alcohol to the extent that Oregon ranked seventh nationally for use in the past year, according to one 2009 report by the Bulletin of Cannabis Reform. So how is it that those Washingtonians and Coloradans stopped throwing money and resources down the toilet before us?

 

Pineapple Excess

Measure 80 faced a lot of criticism from the public and editorial boards for proposing the “Oregon Cannabis Commission,” which would have had five of seven members elected by licensed growers and processors, to regulate sales and commercial cultivation. Some called it “putting the stoners in charge of the henhouse.”

Buckley agrees that the measure was imperfect, but he endorsed it nonetheless, partly due to its potential budgetary impact. “It did [have flaws], but for me it was important to try to get over the barrier of legalization,” he says. “The flaws could be fixed through legislative action, and I certainly was looking forward to the opportunity to try to fix them through legislative action.”

While Buckley says that the commission “rankled” people, he also says that quantity limits on possession could have made legalization more palatable to one district attorney he spoke to. Washington’s bill, Initiative 502, legalized possession of up to an ounce for those over 21, and thanks to Amendment 64, Coloradans of drinking age can now possess up to an ounce while on the go, plus six plants and all their trimmings in a locked location. “If Oregon’s proposal had been closer to Colorado’s, I think we would have been able to prevail — if we’d had some funding behind the measure as well,” Buckley says.

After legalization and regulation advocate Sam Chapman graduated from the University of Oregon in the spring of 2012, he started a political action committee, Oregonians for Law Reform, to support Measure 80, and the PAC raised about $8,000 for the cause. Chapman thinks that the big reason Measure 80 didn’t pass was money. “Had we had another $100,000, Measure 80 would have passed,” Chapman says. Oregon Cannabis Tax Act 2012 received $339,943 in cash donations and Yes On 80 raised $44,570 in cash donations. In contrast, Washington’s pro-I-502 groups had already raised more than $1 million before 2012 even began. Supporters in Colorado spent several million dollars in advertising alone.

The Washington and Colorado groups garnered widespread financial and popular support during the campaigns because a diversity of stakeholders were involved from the very beginning, insiders told EW. Buckley says it works the same way in Oregon. Successful ballot initiatives, Buckley says, are those where “the initiative itself has a lot of buy-in during the development of the initiative, and Measure 80 did not have widespread buy-in as it was being developed.”

Chapman says that pro-legalization advocates learned a lot from the Measure 80 campaign and will apply those lessons in the next go-around, but the 2012 election still exceeded his expectations: “I was aiming to hopefully get 44 percent but it turned out to be 47 — which proved that all of the assumptions about Oregon needing specific, really tough regulations isn’t necessarily true.”

 

Harold and Kumar seek advice from Washington and Colorado

Attorney Brian Vicente, who was a spokesman for Colorado’s Amendment 64 campaign, says including so many stakeholders in drafting the initiative was a painstaking process — but it paid off. “After six months of conference calls and heartache, we came together and came out with a law that a lot of people could get behind,” he says. “I think there’s a feeling that there wasn’t that sort of consensus building around [Measure] 80.”

Vicente says that in addition to taking a slow and steady approach to writing the next pro-legalization measure, advocates should focus on engaging a more broad-based fundraising effort. “We put several millions of dollars worth of TV ads on, as did Washington State, and I think that really helped reach a lot of the public that we couldn’t necessarily reach with a lesser-funded campaign,” he says.

The Colorado pro-legalization Amendment 64 campaign’s largest funder was the D.C.-based Marijuana Policy Project (MPP), which gave about $1 million in monetary contributions and about $241,000 in non-monetary contributions. MPP’s Director of Government Relations, Steve Fox, says that the group looks at factors like the language of the initiative and public opinion polls when deciding where it’s going to focus its election-related efforts. In the case of Colorado, MPP was involved from the early stages and was influential in Amendment 64’s drafting.

“In Colorado, the MPP put up a lot of the money itself, whereas in Washington State you had more of an alliance with Peter Lewis putting in a good amount of money and Drug Policy Alliance putting in a good amount of money,” he says. 

But Oregon doesn’t have much of a chance of attracting Amendment 64-level MPP dollars in 2014. Fox says MPP’s number one guiding philosophy is whether it’s a presidential election year, and the next one’s in 2016. “Since 2002, almost every funded initiative during a presidential election year for marijuana reform has passed, and just about every non-presidential election year initiative has failed,” Fox says.

Asked for what advice he’d offer Oregon activists interested in seeking more funding next time around, Fox offers three suggestions: “Develop a plan to spend the next three years directing all of your resources and energy toward public education that will establish the foundation for a victory in 2016,” he says.

“My second piece of advice would be: Don’t spend time and resources on a 2014 ballot initiative. Number three would be: Be very thoughtful about how you eventually draft the initiative. Figure out where you can push the limits and where you need to be a little more conservative,” Fox says. 

While Oregon’s proposal did have some endorsements from politicians like Buckley and former Oregon secretary of state Bill Bradbury, Washington and Colorado benefited from the support of conservatives like Tom Tancredo, dad-type geeks like Travel with Rick Steves’ Rick Steves and cops like retired Seattle police chief Norm Stamper.

Vicente says that reaching out beyond traditional liberal supporters of marijuana for endorsements made a significant difference to the voting results. “By bringing on a prominent conservative like Tom Tancredo as a spokesperson for the campaign,” he says, “we really could reach some audiences that believed in his core principles of small government, more personal freedom and better use of fiscal resources.”

Anthony Martinelli of Sensible Washington, a pro-legalization group that opposed I-502, says that if Oregon advocates want to put forth a more palatable regulation law in 2014, it’s Colorado’s Amendment 64 they should be looking at. Sensible Washington opposed I-502 due to language that changed Washington’s DUI law from an impairment standard for conviction to a per se standard — which means that instead of citing people based on impairment alone, anyone with more than 5 nanograms of THC per milliliter of blood could be cited.

THC is fat-soluble, so it can remain in your body while not causing impairment, and regular users — cancer patients using as medicine, for example — could build up base levels that persist on days they don’t smoke and aren’t impaired. And since users can’t say how much or for how long their THC levels will rise after smoking a bowl (but they can observe their own impairment), some say 5 nanograms is an unfair standard as well as an unscientific one.

Martinelli says that when Washington’s marijuana DUI law was an impairment standard, the conviction rate was over 90 percent, so a change to a per se standard made the initiative unacceptable. “We understood from the beginning that the one-ounce decriminalization and a couple of other aspects of it were steps forward,” Martinelli says, “but we just felt that the DUI provision and the possibility of prosecuting innocent people just wasn’t worth the rest of the exchange.”

 

Full weed ahead

Attorney Brian Michaels, who represents recently busted Kannabosm owner Curtis Shimmin (who was charged with racketeering, among other felonies, for his distribution to OMMP patients in his Eugene dispensary), says that legalizing marijuana, even on a state level, could help let people like Shimmin distribute to OMMP patients in peace. The team that raided Kannabosm seized all the shop’s marijuana plus an ATM full of cash. “The root of these charges is not any illegal activity,” Michaels says, it’s law enforcement unjustly going after marijuana. He says it is “the institution of government disrespecting its own law.”

“We’re kind of at the point where, as far as moving forward, we’re all in agreement that we want to move forward, but how we’re going to do it we’re going to have to figure out and define,” Chapman says. He’s working on proposals with Legislative Counsel that involve both legalization and creating dispensaries for medical patients who are unable to grow on their own.

Chapman says that coalition-building is next on his agenda, not clearing up Reefer Madness-style myths. “I think Oregonians are probably in a majority agreement that prohibition of marijuana has failed,” he says.

In building those coalitions, Chapman is thinking about what unconventional partners Oregonians for Law Reform might reach out to in the next campaign. “For example, the timber industry probably isn’t very excited about where they’re sitting right now, and they’re not necessarily fully open to the idea of hemp yet, but I think we’re in a position where sitting down with the timber industry and saying ‘look, hemp could save your industry,’” Chapman says.

“We’ve had some pretty historical meetings over the past month where we’ve sat down stakeholders, funders, activists, lobbyists all in the same room,” Chapman says, “and we’re starting those conversations.” On the table, he says, are all sorts of possible provisions, such as enacting the same provisions of the OMMP for all adults 21 or older, though he’s wary of a DUI law similar to Washington’s.

Former Measure 80 campaign manager Jennifer Alexander writes in an online Examiner.com article that she believes the real force that will determine how the federal government under Obama responds to Washington and Colorado’s new statutes will be found in the other 48 states. “While some feel that the feds are desperately clinging to their prohibitionists policies, it is my belief that the federal government is simply responding to what they believe to be the will of the people of the United States,” she writes. Alexander did not respond to requests for comment by press time.

Rep. Buckley says that he and other reform advocates are starting to create a Senate-House work group to sift through proposals for potential legislation and any adjustments to the OMMP that might be needed.

“We’re going to take some time, and hopefully convene this work group, and work for about a year to try to sift through the proposals, find out really what can get broad-based support, and if we can develop something through this research process that we feel does have broad-based support, we’ll ask the Legislature to refer it to the ballot in 2014,” he says.

Sending a legalization and regulation proposal for a public vote is essential, Buckley says, because passing marijuana reform measure is still somewhat controversial. He says that if that changes someday, it will be due to law enforcement being “at least neutral” on the issue, and he thinks that’s important in getting a successful measure to the ballot, too. “I don’t think the majority of legislators will overrule the concerns of their district attorneys and their sheriffs and their local law enforcement folks,” he says.

“Now we get to sit back and watch and see what happens in Colorado and Washington and what the reaction of the federal government is going to be, and we kind of get to plan accordingly,” Chapman says. ν