Prop. 19: The Regulate, Control and Tax Marijuana Act of 2010

Intro- What is Prop. 19?

On November 2, 2010, California voters decidedly rejected passage of

Proposition 19, a measure that would have legalized marijuana for adults 21 and older in

California. Was it simply the product of delusional pot-head fantasies, as many claim?

Richard Lee, the man who originated Prop. 19,1 would be the first to say that legalization

as a conceivable political reality, was, for as recently as a decade ago, just that- a fantasy.

Although the ballot measure failed to pass, Prop 19: The Regulate, Control and Tax

Cannabis Act has for the first time brought marijuana legalization into the mainstream of

political discussion and has allowed “marijuana legalization” to escape the realm of

fantasy. The prospects for marijuana legalization in California transcend even

conceivable reality and have become a real possibility in the future. This isn’t hippie

rhetoric. Richard Lee, though to be sure has given the hippies up in Santa Cruz

something to cheer for, has inspired something much greater. His is a movement

supported by people from all walks of life. Its cause is no longer familiar to loyalists of

the 1960’s counter-culture movement alone but also understood and embraced by

intellectuals and the well educated. The movement for legalization transcends

demographics, socio-economic status, race, gender, and partisanship. This is fantasy

made reality. This is Prop. 19.

The Foundations of Direct Democracy (theory section)

1 John Hoeffel, Proposition 19 backer is committed to his cause. (Los Angeles: Times, 2010)

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For 21st century California legalization advocates, the ballot measure seemed a natural

tool. These pioneers of marijuana law reform may have stepped into unchartered

territory when taking up the task of politicizing the cause for legalization. However, the

mode by which the subject of their advocacy, legalization, is on the contrary quite

familiar. This paper is all about democracy. More specifically it is about direct

democracy. Through Proposition 19, ultimately I will assess the merits of direct

democracy’s use within the American Republic.

First, what is direct democracy? Quite simply, it is a form of government. The

origins of democracy or rather, demokratia lie with the political climate of Athens in the

6th century BCE. As a system of governance, democracy, was first championed by

Cleisthenes in response to injustices served by the tyrannical rule of his father

Peisistratus. Demokratia, in which political decision making was made directly by the

people, was designed to put an end to such injustices. Democracy has since the time of

the Greeks, come to occupy an important place in the political traditions of many nations

around the world. However, it typically exists in an altered form. Here in the United

States, we practice a republican style of democracy, whereby citizens elect leaders to

represent them in political decision making. It is important that American democracy

should not be confused with Greek demokratia.

Demokratia, the Greek word for democracy, does however exist in a limited way

at the state level. In some states, citizens are allowed to vote directly on legislative issues

or ballot measures. This is direct democracy, government at the citizen level, in which

the individual is called upon to make political decisions directly without the aid of

representatives. Nowhere is the practice of direct democracy more apparent or used more

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readily than in California, a state that occupies the attention of this paper. I will now

present the history of direct democracy in California to uncover the motivations for its

use. As it turns out, Californians were ultimately motivated to turn to direct democracy

by the same reasons that had inspired the ancient Greeks centuries earlier.

The history of California and the history of the state’s dealings with direct

democracy have a long and intimate relationship. Their histories are deeply intertwined,

with the fate of the former necessarily the function of, at some basic level, the latter. Add

to that, the fact that California, as one of the first states to adopt it back in 1911, has by

far the most experience with its use in governance, I will make the claim that direct

democracy is as quintessential Californian as are reefers with surfboards. It is

indubitable to think that marijuana legalization would be served by anything other than

direct democracy or take the form of anything other than a ballot initiative. Through

brief narration of the history of direct democracy and direct democracy in California, the

reason for its adoption and prominent cases that highlight its benefits and importance to

the state, I hope to shed some light on the questions of why and how marijuana

legalization found its way onto the 2010 ballot.

Direct Democracy in America

Direct democracy is by no means true to the type of system of governance,

envisioned by the founding fathers. It is, in actuality, a relatively new phenomenon that

radically departs from the republican system they established upon the founding of the

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Constitution. What is more, direct democracy as a phenomenon occurs only at the state

level and only in a handful of states.2

Direct democracy, as a concept, first made its appearance in American politics at

the end of the nineteenth century. Americans were moving westward in promise of land

and opportunity. For some, upon encountering a political vacuum in the new territories,

manifest destiny was the opportunity for political power. According to Stanford’s Bill

Whalen, a fellow of the Hoover Institute, on the curtails of manifest destiny a race for the

political upper hand ensued. Early on in the race, power was centralized “with the power

brokers of the day: captains of railroads, agriculture and mining.”3

As captains of big business expanded into the West and entrenched themselves in

politics there, America was at the same time undergoing a profound political change of a

different kind. Largely reactionary to the emboldening political power of the economic

elite, the 1890’s also saw the enfranchisement of society’s disaffected and marginalized

groups. The People’s Party (i.e., Populist Party), comprised of “Farmer’s Alliance

groups, Grange organizations, single-taxers, socialists, labor groups, and social

evangelists,”4 was formed in 1891 to represent those disaffected and marginalized groups

in contest with the economic and political elite. As their platform, they advocated

progressive taxation and the regulation of big business which put them at direct odds with

those elite tied to or representing big business. Although short lived, the People’s Party

(i.e., Populist Party) was however extremely influential in American politics before its

2 Shaun Bowler, Todd Donovan, & Carloline J. Tolbert, Citizens as Legislators. (Columbus: Ohio State University Press, 1998) 13 Bill Whalen, Who’s Afraid of the Big Bad Initiative? (Stanford: Hoover Review, July 30, 2000)4 Shaun Bowler & Todd Donovan, Demanding Choices: Opinion, Voting, and Direct Democracy. (Ann Arbor: University of Michigan Press, 1998) 4

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demise a little over a decade later. One of their most powerful and lasting contributions is

the topic of this paper, direct democracy.

Much the same as it had in ancient Greece, direct democracy came about in the

United States as a reaction to tyranny, or rather in this case, corruption popularized as

tyranny. The power brokers of the nineteenth century had been successful in broadening

their political power and entrenching themselves in Western politics. They used their

extreme wealth in the exercise of their influence, corrupting state legislators to attain their

special interests.

In California, the struggle of Populists versus power brokers most prominently

took the form of a clash between Populists and the Southern Pacific Railroad. Southern

Pacific dominated the state’s politics. To paint a clear picture corruption and California

politics at the turn of the twentieth century, historian Kevin Starr states that the railroad

“offered the most obvious instance of what was grossly wrong with California: a very

few of the super-rich virtually owned the state- its land, its economy, its government- and

were running it as a private preserve.”5 In Oregon, the Populists fought aristocratic

privilege. In Washington, they fought against the “machine-controlled legislature.” 6 In

states throughout the West, the Populists looked to their state legislatures and saw

corruption. The Populists, in those states where direct democracy would ultimately take

hold, reacted to corruption, abuse and scandal as Cleisthenes of ancient Greece had to

tyranny. Determined to break the hold of the well-financed interests over the state

legislature and fight those corrupted legislators for minority right and privilege they

advocated direct democracy as the solution. In doing so, they hoped that it would

5 Stephen M. Griffin, California Constitutionalism. Journal of Constitutional Law 5616 Bowler & Donovan 4

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provide a vehicle to bypass the corrupted legislators and afford the individual citizen new

and greater power over the process of legislation. They believed that it was only through

the devices of direct democracy, namely the referendum, recall and ballot initiative, that

would grant access to those groups who were, at that point, excluded from the legislative

process.7

In 1898, South Dakota was the first state to adopt direct democracy in the form of

the citizen’s initiative, followed closely by Oregon and Washington. In 1902 Oregon

became the first state to put a citizen’s initiative on an election ballot. Since then

thousands of initiatives, drafted by citizen’s outside of capitol buildings in ( ) different

states have found their way onto the ballot. California is one of those state’s making use

of direct democracy. Analysis of that particular state’s dealings with direct democracy

offers as Donovan and Bowler claim, “the most visible” and the most readily identifiable

“example of direct democracy on a large scale.”8

Direct Democracy in California

California, from the very beginning of its statehood, was particularly suited for

direct democracy. Constitutional Law Professor, Stephen M. Griffin, argues that its

eventual departure from the type of republican government it originally had was rational.

Essentially California lacked the kind of political economy that was necessary to support

representative government.9 There was too little farmland and too large of urban areas.10

Land ownership was concentrated and citizens complained of a land monopoly, as a

7 Bowler & Donovan 48 Bowler & Donovan 29 Griffin1110 Griffin 13

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result.11 What made the exercise of republican government especially impossible were

the operations of Southern Pacific. Citing historian Kevin Starr, the railroad “offered the

most obvious instance of what was grossly wrong with California: a very few of the

super-rich virtually owned the state- its land, its economy, its government- and were

running it as a private reserve.”12 This was all soon to come to an end, however, by the

power of 19th and 20th century Progressive movements.

In 1883, hundreds of letters of correspondence between railroad execs were made

public in the course of a lawsuit. “The bulk of these letters dealt with the delicate matter

of bribing Washington congressmen and Sacramento legislators to favor pro-railroad

legislation.”13 When citizens were later informed that no action was to be taken by the

legislature against Southern Pacific, they lashed out, led by an elite group of

progressives- the soon to be Lincoln-Roosevelt League.14

Keeping in mind their belief in republican theory of the time, which held that the

conditions in California were not conducive to representative government, they sought

ulterior means of checking Southern Pacific, all but absent in the then current republican

system. As Griffin writes, “direct democracy was the next logical step as corporate

influence persisted over the legislature.”15 This is not to say, Progressives rejected

representative government in principal. They merely meant to supplement it.

Still in its early stages the reform movement fought hard to eliminate the control

of well-financed interests over the legislature. In 1903 they had some preliminary

success, when John Randolph Haynes was able to convince Los Angeles voters to adopt a

11 Griffin 1112 Griffin 1113 Griffin 11-1214 Griffin 1215 Griffin 13

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reform package that would allow for the initiative, referendum and recall at the local

level. Direct democracy finally became a mode of governance at the state level in 1911,

motivated by corruption and bribery trials of some prominent union leaders and corporate

executives. 16 The Populists and Progressives had their success and brought with them

new levels of transparency to government.

Assessing the intent and efficacy of direct legislation

The Progressives advocated direct democracy in the hope that it would produce

policies that were more responsible and more responsive to the demands of the people,

than what legislatures, under political constraints, were capable of producing.17 Donovan

and Bowler, subscribing to the task of assessing whether or not these hopes have come to

fruition, provide two criteria, competence and responsiveness. Addressing the later,

Donovan and Bowler, beg the question, “to whom is the [citizen’s initiative] process

responsive?”

In summary of their conclusion, they admit that the ballot initiative process has

increasingly become a tool of narrow specialized interests. This reality is explained by

the rise of the modern initiative industry to supplant what was once an essentially

grassroots process. They claim that, “As the “initiative industry” matures and as gaining

ballot access becomes more costly for all groups, it becomes increasingly difficult for an

observer to distinguish the efforts of ‘citizen’ groups from the methods used by narrow

16 Robert M. Stern Democracy by Initiative: Shaping California’s Fourth Branch of Government. HealthVote.orghttp://www.healthvote.org/index.php/site/article/democracy_by_initiative17 Bowler, Donovan & Tolbert 18

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‘interest’ groups.”18 From this assertion some might draw the conclusion that narrow

interests can buy “favorable” legislation.

The need for campaigns to fill the void, left by the vacancy of political parties in

the direct democracy process, provided for the emergence of the initiative campaign

industry,19 alluded to earlier. Donovan and Bowler clarify- “[Direct democracy] reforms

subverted the traditional electioneering function of the party and provided the opportunity

for private (i.e., nonparty) organizations to offer advice and conduct campaigns.”20 This

provided the basis for an enduring professional campaign industry that has arisen to take

the place of the political parties in legislative politics.

The initiative campaign industry can be an extremely important, if not necessary,

channel to direct the success of ballot initiative campaigns. They provide valuable and

experienced insight for campaigns. Additionally, increased specialization within the

industry has yielded general consultants, and specialists in the areas of signature

gathering, fundraising, and political law, among others and has made the services offered

by the campaign industry all the more beneficial. As far as operators in the industry are

concerned, the success of any campaign is dependent on the services they provide.

Furthermore, “the earlier they are hired, the more likely they can affect the election

outcome.”21 This in itself is disconcerting. What is more, professional help is costly.

The success of a campaign then, might be seen as a function of an ability of a group to

finance such help. Consequently, there is a very real concern that all policy issues at-play

in the arena of direct democracy have invariably become, to some extent, money issues.

18 Bowler, Donovan & Tolbert 1919 Bowler, Donovan & Tolbert 20 Bowler, Donovan & Tolbert 6021 Bowler, Donovan & Tolbert

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“In California it takes money and lots of it. In order to win, you need to start

early, have direction and fund-raising…this is our role,”22 relates one of Donovan and

Bowler’s interviewees. Another unfortunate reality is that broad based grassroots

movements often do not have the necessary resources at their disposal to finance

professional help, at least not on the scale of more specialized interests. Donovan and

Bowler, when discussing the impact of spending in direct democracy, argue that “narrow

interests-typically corporate interests- are likely to be the groups making greatest use of

the costly ‘initiative industry’ and associated campaign techniques in California.”23

When a citizen’s initiative takes the form of a contest between broad based interests and

specialized well-financed interests, as is often the case24, there is a clear disadvantage for

the former. So it would seem that the directly democratic process of ballot legislation is

most responsive to those most capable of financing it. Thus it would also seem that

direct legislation would fail our assessment test on the basis of the “responsive” criteria.

What of our other criteria, competence? Is the ballot initiative process (more)

“responsible?” Further assessment of the citizen’s initiative, based on this criteria, yields

more disconcerting results. A common criticism of the initiative process is directed at its

“amateurism.” While professional legislators are certainly not without their flaws, runs

the argument, “they are at least familiar with the demands of drafting, writing, and

amending legislation in modern societies.”25 They criticize the directly democratic

process by pointing to the susceptibility of voters to “slick” ad campaigns because they

22 Interview 13. Bowler, Donovan & Tolbert 7623 Bowler, Donovan & Tolbert 4824 Often is the case that narrow specialized interests step in and campaign against an initiative, placed on the ballot by a broad based group, to defend their own interests. Bowler, Donovan & Tolbert 25 Bowler, Donovan & Tolbert 55

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are seen as lacking the depth of political knowledge necessary to make well-informed

decisions. Accordingly, citizen initiatives are not necessarily a reflection of public

interest but rather the ability of a campaign to use propaganda successfully, when

petitioning themselves to the voter. From this interpretation the citizen’s initiative does

not provide for responsible legislation, in the way envisaged by the Progressive

reformers.

Where and when the citizen’s process is responsive (to broad based movements,

representing the public interest), there exists a very real danger to minority interests and

even minority rights. Direct democracy as a mode of governance, is by definition,

majoritarian. Direct democracy does not insulate minority groups, in the same manner

offered by republican governance. Uninhibited by the shielding protection of the

republican electoral process the will of the masses can be and has in-fact proven to be a

very dangerous thing.

Is direct democracy (more) responsive? Is it (more) responsible? I will now

provide three examples of direct legislation in California to hash out the arguments for

and against direct democracy. The three examples I refer to are Proposition 13 (lowered

property taxes, 1978), Proposition 209 (repealed affirmative action, 1996) and

Proposition 215 (made marijuana available for medicinal use). As will be seen, all three

were approved by near-landslide majorities and applauded for their successes. However,

since their passage they have taken a lot of flack and even condemned as policy failures.

They have been accused by the mainstream media as either “socially divisive” or

“damaging to government’s ability to provide basic services.”26 These examples will

26 Bill Whalen, Who’s Afraid of the Big Bad Initiative? (Stanford: Hoover Review, July 30, 2000)

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draw out the shortcomings of direct legislation in practice. In defense of the initiative

process, Bill Whalen concedes that the initiative process is not without its faults; he puts

forth three- distortion, incoherent or nonsensical measures, and “monkey business.” For

Whalen as well as thousands others in California and in other direct democracy states, the

initiative process is, nevertheless, worth defending.

Proposition 13

Proposition 13: The People’s Initiative to Limit Property Taxation was approved

by California voters on June 6, 1978. Its passage brought about a formal amendment to

the California constitution. Specifically, it did three things. First, it set a maximum tax

on property of 1% of fair market value. Second, it limited growth in assessment to no

more than 2% per year. Third, it required a two-thirds vote of the state legislature to

issue any new state tax to substitute for lost local revenues.27

1960’s California saw a population explosion. Increased demand for housing

resulted in greater property values. This in turn resulted in the rise of property taxes, in

accordance with the state’s ad valorem property tax system.28 Many Californians,

especially older generations, with fixed incomes struggled to pay the increasing property

taxes. While many of the state’s citizens were feeling the pressure from increased

property taxes, the state’s government was actually running a multi-billion dollar surplus.

Despite this surplus, the state legislature could not find a way to come to an agreement on

a property tax or income tax relief measure. Baratz and Moskowitz credit this failure to a

27 Joan C. Baratz and Jay H. Moskowitz, Proposition 13: How and Why it Happened. (Phi Delta Kappa International) 928 "Ad valorem" is used to refer to property values by county tax assessors. California used a state tax commission, which notified the appropriate taxing authorities of the assessed value of property within their billing jurisdiction. Proposition 13: Love it or Hate it, its Roots Go Deep. (Cal-Tax Research, November 1993)

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lack of executive leadership in then Governor Jerry Brown to “crystallize the competing

interests and enact a compromise tax relief measure,” from the twenty or so proposed tax

measures.29 It was amidst this climate that Howard Jarvis began his fourth attempt to

collect signatures for a ballot initiative that would dramatically lower the state’s property

taxes.30 By 1978, with home ownership threatened by escalating property tax bills,31 the

fate of Proposition 13 was sealed.”32 On June 6, 1978 California voters adopted

Proposition 13 to lower and stabilize tax rates, by a margin of 65-35.3334

Analysis of Proposition 13 is a great opportunity to dive into the many

controversies of ballot legislation. First, is the issue of voter competence. One of the

notable conclusions in the famed Michigan study The American Voter, “is that voters

have low levels of conceptualization and consequently are unable to think in abstract

terms about politics and policy.” Donovan and Bowler summarize the argument.

“According to the paradigm, few voters are sufficiently sophisticated to think about politics on the basis of issues and ideology. Voters were said to lack sophistication in two key ways: (1) they have limited abilities to think in abstract about candidates and issues, and (2) they lack factual knowledge (Smith 1989; see also Luskin 1987).

29 Baratz and Moskowitz, Proposition 13: How and Why it Happened,30 Baratz and Moskowitz, Proposition 13: How and Why it Happened,31 The findings of Cal-Tax Research show that “In 1966, after an assessors' scandal, the Legislature enacted a reform bill (AB 80) to keep assessments at a uniform percentage of market value.” As a result, during the 1970s, when real estate values escalated rapidly, so did home assessments. Proposition 13: Love it or Hate it, its Roots Go Deep. (Cal-Tax Research, November 1993) http://www.caltax.org/research/prop13/prop13.htm32 Proposition 13: Love it or Hate it, its Roots Go Deep. (Cal-Tax Research, November 1993) http://www.caltax.org/research/prop13/prop13.htm33 Proposition 13: Love it or Hate it, its Roots Go Deep. (Cal-Tax Research, November 1993) http://www.caltax.org/research/prop13/prop13.htm34 The LA County assessor released the 1978 tax bills at the end of May, two months earlier than usual. These bills reflected the “astronomical” rise in residential property values. The local media responded by flooding their papers with stories of homeowners’ taxes increasing from $1,500 to $5,000 over a three year period. Baratz and Moskowitz, Proposition 13: How and Why it Happened,

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Many opponents of Prop. 13 claim that voters were duped. Similarly, opponents of direct

democracy would claim that they were not sufficiently competent to make informed

choices and this left them easy prey to slick ad campaigns that painted a picture of

something far different than what was actually the case. In both cases, opponents are

quick to point out the current state of affairs in California, where the government is no

longer running a surplus but rather, massive debt and is hard-pressed to finance valued-

services. Veritably, the immediate effect of Proposition 13 was the reduction of property

taxes by 57 percent; the net effect of which was reduction of local revenues by

approximately $7 billion.35

The second issue is the effect competing proposals have on voters’ ability to sort

through the demands of direct democracy. Proposition 13 was not the only tax relief

measure on the ballot. The California state legislature, fearing the effects of such a

heavy-handed tax relief measure such as the Jarvis initiative, countered it by putting a tax

initiative of its own on the ballot. Amidst the already demanding context of decision

making, Donovan and Bowler report that counter initiatives complicate things further for

ballot issue voters. Citing Banducci and Magelby, they write that the strategy “is to

confuse voters so they will vote No on both measures.”36 Indeed, many of the “No on

13” coalition members believed that Proposition 13 could not be defeated without

offering Proposition 8 as an alternative.37

Proposition 209

In 1996, Californians passed Proposition 209, which amended the state’s

constitution to eliminate affirmative action programs in the operation of public

35 Baratz & Moskowitz 1036 Donovan and Bowler 1937 Baratz & Moskowitz 10

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employment, public education, or public contracting.38 Within three weeks time, U.S.

District Court Judge Thelton Henderson moved to block enforcement of the proposition.

The 9th Circuit Court of Appeals subsequently overturned the ruling and Proposition 209

has since been the subject of many lawsuits and extreme controversy.

Proposition 209 was organized and funded by the Center for Individual Rights.

The group had primarily focused its energies in judicial contests; however, the Supreme

Courts refusal to hear two important affirmative action cases in the 1990’s forced a

change in strategy. In the mid 1990’s, the Center for Individual Rights joined with other

opponents of affirmative action to try their luck with California’s ballot initiative process.

The strategy shifted decision making to an arena where it might be more likely to

prevail.39 In doing so, opponents also reallocated power by changing who makes the

decision. “Changing the arena of conflict allows for different people to be involved and

different resources to be mobilized.”40

Was Prop. 209 responsible legislation? Who was it responsive to? The answers

to these questions are subject to interpretation. For opponents to affirmative action, Prop

209 was both responsible and responsive.41 For proponents, Prop 209 was neither

38 David Jung, Proposition 209, Preferences and Federal Finance Assistance. (Berkeley: PLRI) 139 Changing the decision-making structure represents one “solution” for making public policy work. Stone calls this a “powers solution.” Representing a broad based interest, Prop 209 was responsive in the way envisaged by the founders of direct democracy. It served the public interest, providing an alternative means to legislation; the search for an alternative mean necessitated by the unwillingness of state legislators and courts to get involved. Deborah Stone, Policy Paradox: The Art of Political Decision Making. (New York: W.W. Norton & Co. Inc., 2002) 355. Stone’s other “solutions” for making a public policy work are: inducements, rules, facts, and rights. 40 The strategy to 41 54% of California voters voted in favor of Prop 209. Election results found at http://www.sos.ca.gov/elections/sov/1996-general/1996-general-sov.pdf. Representing a broad based interest, Prop 209 was responsive in the way envisaged by the founders of direct democracy. It served the public interest, providing an alternative means to legislation; the search for an alternative mean necessitated by the unwillingness of state legislators and courts to get involved.

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responsible nor responsive. With affirmative action, as with all policy issues, “opponents

and supporters attempt to focus attention on opposite sides of the same coin.”42 The coin

(battleground for debate) is chosen when and whenever one side of the debate frames an

issue in a new way. To frame is to classify; and all forms of problem definition (literary

devices, numbers, causal stories, representations of interests, representations of rational

decisions) are techniques of classifying43 and thus means for framing an issue.

Early in the debate, supporters of Prop 209 attached to affirmative action

programs the label of “quota system.” This was strategically political, as Prop 209’s

supporters hoped to tarnish the concept of affirmative action by capitalizing on the

negative connotation of “quotas,” when framing and presenting the initiative to voters.

Quotas necessarily entail exclusion of certain individuals. Supporters of Prop 209 argued

that quotas kept white people like Allan Bakke44 out of California’s higher education

systems. Opponents, on the other hand, counter this strategy of labeling affirmative

action as a quota system by distinguishing between good and bad quotas. They argue that

affirmative action is an example of a good quota system. The new quotas, as opposed to

the old quotas, were good because they were intended to include rather than exclude.45

Stone makes it a point to note that, “All selection criteria are decision rules that

include some people and exclude others.”46 Persuasion in the polis often takes the form 42 Bowler, Donovan & Tolbert 39143 Stone 38044 In 1977 Alan Bakke was denied entrance into UC Davis’ medical school. Bakke challenged the decision on the basis of the university’s affirmative action plan, under which 16 spots were reserved for black students, and black and white applicants were considered under separate processes. Bakke claimed that his test scores were higher than those of some blacks who were admitted, that if it wasn’t for the quota system he would have been admitted, and that he was a victim of “reverse discrimination.” Stone 38745 Stone states that new quotas purportedly operate on the basis of floors, ensuring that at least a minimum number of people of a category are included. Old quotes were ceilings, meant to exclude. Stone 39146 Stone 391

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of maximizing or minimizing the implications of this reality, depending on the political

context. To expand, I now turn to the example of Proposition 215. It will serve to

illuminate for us the place of politics in defining problems and goals.

Framework and Outline: The ballot initiative as natural tool for legalization

Whether or not you agree with the terms of the ballot propositions discussed

above or their resulting policy outcomes, it is clear that in all cases, ballot legislation

opened “a door to the legislative process,” 47 otherwise closed to certain issues and certain

groups. Ballot legislation was the natural tool for accomplishing their policy goals. I

now refocus the attention of this paper to the main issue at hand- the policy process of

marijuana legalization.

The policy of marijuana legalization, when taking the form of a ballot initiative,

changed the terms of the policy game, its players and its venue. It was a calculatedly

strategic move on the part of the bills drafters and supporters. Like those examples

previously discussed, Proposition 19 is a great case study for direct democracy, even

more so. It is now the task of this paper to test the true aspirations of direct democracy.

What is great about the example of Proposition 19, is that it certainly goes against

any sort of professional trend. Unquestionably, Prop 19 was low budget, perhaps,

ultimately, to its own demise. But this reality, indicates that it was fundamentally an

initiative at the grassroots level. The movement for the legalization used the tool of

direct democracy afforded to them for the obvious reason that, being excluded from

access to the legislature, it was the only option they had. It was to this group whom

direct democracy was originally meant to serve. While, in the end, it failed to pass, Prop

47 Bowler, Donovan & Tolbert 3

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19 is an affirmation of the efficacy of direct democracy in providing an alternative means

of access to disaffected groups in society.

California and Cannabis

To understand Prop 19, it is necessary to understand cannabis culture in

California. Without a doubt there has long existed such a culture. It pervades all levels

of society, in all regions of the state. Nowhere else in the United States is marijuana use

and cultivation as prevalent or generally accepted as it is in California. Prop 19 is as

much a representation of a popular cultural phenomenon as it is a political phenomenon.

It was developed for and by the people of this “cultural” minority to address a public

matter of great concern to them, otherwise left untouched by the state government. What

is all the fuss about? Why are so many Californians willing to take up the cause for

legalization? The history of marijuana has much to say on this subject.

Marijuana Prohibition in California

Considering the overwhelming acceptance of marijuana in the state currently,

ironically California was one of the first states to outlaw its use, beating the federal

government to the scene by nearly a quarter century. Marijuana prohibition as policy is

abnormal, in the sense that it was not a reaction to any recognized problem, as we shall

soon see.

Cannabis indica, the original pharmaceutical name for marijuana, was introduced

to Western medicine in 1839 and became available in American pharmacies by the

1950’s, imported from India via England. Although it was incredibly easy to acquire,

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readily available in pharmacies and by mail order to anyone interested, few actually did

so. Cannabis indica was not popular as a narcotic and virtually unknown as an

intoxicant. 48 With little public exposure and limited use and at the time, there was no

grassroots agitation to put cannabis on the political agenda. Indeed, right up until 1913 at

the time California passed anti-marijuana legislation, it was not. Additionally, political

resources were at the time focused on the prohibition of much more pressing and

damaging drug problems namely alcohol, cocaine and opiates such as opium, morphine

and heroin.4950 However, on August 10, 1933, the Progressive controlled California

Board of Pharmacy saw to it that marijuana was made illegal. In a little over five years,

cannabis had gone from “unknown drug” to “illegal drug.” What can account for this?

The most generally accepted theory for marijuana prohibition takes the form of

the “Mexican Hypothesis.” Its first real proponent, David Musto, writes-

“The most passionate support for legal prohibition of narcotics has been associated with fear of a given drug’s effect on a specific minority…In each instance use of a particular drug was attributed to an identifiable and threatening minority group. The occasion for legal prohibition of drugs for non-medical purposes appears to come at a time of social crisis between the drug- linked group and the rest of the American society.”51

The anti-Mexican sentiment that ensued created a fear of the drug they were associated

with- marijuana. The Mexican hypothesis, however, as we will see has its flaws and

lacks empirical support for its claims.

48 Gieringer makes note in his index that the only mention of “hashish,” “cannabis” or “Indian hemp” prior to 1914 in California news publications comes form a single article in the San Francisco Call. Compilation of early marijuana literature is credited to Andrew Gates, available at www.reefermadnessmuseum.org Dale H. Gieringer, The Origins of Cannabis Prohibition in California. (New York: Federal Legal Publications, 1999, revised 2006) 249 The 1907 amendments made it illegal to sell cocaine and opium, unless by prescription. While cannabis was not included, the amendments did however set the stage for its prohibition in the near future. 50 The historical record shows that cannabis was not enough of a problem to be included in the 1907 amendments to the state’s poison laws, which banned other drugs like opium and cocaine for sale, unless by prescription.51 Musto, American Disease. 55, 75 (found in The Strange Career of Marijuana p. 29)

19

The first known reference to Mexican marijuana appeared in an 1897 issue of the

San Francisco Call. Following the Call’s mention of it, “marihuana” appears only four

more times from 1898 to 1911, all in the LA Times.52 However, it does also appear in

several magazine articles in the same time period, most notably the Pacific Drug Review

which popularly proclaims marijuana to be a “killer weed.”53 Grieger explains the basis

of the “killer weed” in the Mexican Hypothesis. In the late 1800’s, marijuana was widely

considered to be a lower-class drug in Mexico and “By the turn of the century, it had

come to be associated chiefly with delinquents and freelance soldiers, which naturally

enhanced its reputation for promoting violence.”54 Exposed to a large influx of Mexican

migrant workers, displaced by the Mexican revolution, Americans were hostile to this

new group of immigrants. The immigrants were foreign and so too was their drug of

choice- marihuana. Consequently, then, Americans diffused their hostilities of the

Mexican immigrants to the drug they brought with them.55

However, with mention of marijuana in only a handful of publications from the

states’ popular media sources at the time, it can be soundly concluded that there was no

public awareness of marijuana in California. As Grieringer explains, marijuana

prohibition was not a legislative measure responding to any public outcry against

52 Each of these media publications fails to mention that Mexican marihuana is in actuality identical to cannabis indica. This is explained solely by a lack of knowledge about the cannabis plant, its chemical components and psychoactive ingredients. 53 The Pacific Drug Review writes in 1906 that “The habitual user of mariahuana [sic.] finally loses his mind and becomes a raving maniac.” Similarly the Pacific Drug Review published another article in 1909 that read, “the marihuana weed is known as the most harmful of narcotic influences, however, and its leaves, when smoked in the form of cigarettes, produces a species of insanity which frequently ends in horrible death.” The ironic thing is that at the time of publication cannabis indica, which was being sold freely in pharmacies across the state, harbored a reputation for pharmaceutical safety. Cannabis was never regarded as a deadly drug. The Pacific Pharmacist writes, “Who ever heard of anybody being killed with cannabis indicas…?”54 Gieringer 1355 Charles Whitebread The History of the Non-Medical Use of Drugs in the United States: A Speech to the California Judges Association 1995 Annual Conference.

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Mexicans or their marijuana. Prohibition of marijuana did not coincide “with any

widespread concern or awareness of problems surrounding its use.” Rather, cannabis

prohibition was the result of a bureaucratic initiative.56

According to Gieringer, the real reason for the abrupt shift from cannabis’ status

as “unknown drug” to “illegal drug” was “the emergence of a new class of professional

policy bureaucrats with the authority and will to regulate drugs in California.” These

were the Progressives. Conclusively, the extension of anti-narcotics reform law in 1913

to include cannabis was a logical extension, based on their prohibitionist principles. It is

as Patricia Morgan claims- “an example of professional reform policy tied to the overall

ideology of the Progressive Era.”57

Nationwide marijuana prohibition

In the period from 1915 to 1937, some twenty-seven states passed criminal laws

against the use of marijuana.58 Following their lead, the federal government enacted the

Marihuana Tax Act in 1937. There are many parallels between the case studies of

California and federal anti-marijuana legislation, including the multiple hypotheses that

have arisen to explain it. Two hypotheses, in particular, have surfaced at the forefront of

the debate. The first is the Anslinger Hypothesis, which basically argues that federal

anti-marijuana legislation was the result of a bureaucratic initiative, much as it had been

in California.59 However, in this instance, anti-marijuana legislation cannot be fully

56 Gieringer 3257 Gieringer 3358 Whitebread 59 Unlike in California, the bureaucratic initiative, according to theorist Donald Dickson, was not undertaken out of a desire to legislate morality but rather to promote the survival and growth of the FBN. According to Dickson, the bureau pushed for a national marijuana law so that it could use its increased scope of operations as a basis for future demands for increased funding.

21

explained by a bureaucratic initiative. The second is the Mexican Hypothesis also

evidenced in our discussion of California. Its main proponent, David Musto, argues that

anti-Mexican sentiment sparked grassroots “agitation” movements that ultimately blazed

the trail for federal marijuana legislation in 1937. As it had been for our California case

study, the Mexican Hypothesis again fails to provide a conclusive explanation for the

passage of the Marihuana Tax Act.60 Together the two paint a more complete picture.

Himmelstein writes, “A complete understanding of the Marihuana Tax Act requires

attention to both the bureau’s actions and the social context in which it acted.”61

Also, as was the case of marijuana prohibition in California, it appears that anti-

marijuana legislation was not a reaction to any political or policy problem. According to

analyst, Jerome Himmelstein, federal narcotics officials virtually ignored marijuana prior

to 1929.62 Per request for review of the narcotic by a few different politicians in 1928,

“their initial response was cold indifference.” The Federal Bureau of Narcotics (FBN)

was created in 193063 and their reports from 1931-1934, explicitly deny that there was

such a thing as a marijuana problem.64

60 The major proponent of the Mexican Hypothesis, David Musto, does not provide evidence that there was an intense fear of marijuana at the time. Concern about marijuana in California during the 1930’s was still almost nonexistent and there is no documentation of a substantial rise in marijuana arrests in the 1930’s. Additionally, he does not provide evidence of local political pressure on the federal government. He cites only a handful of letters (two from Louisiana state officials to the surgeon general and the Prohibition commissioner in 1920; one from a U.S. marshal in Oklahoma to Anslinger in 1934; and one from a Colorado newspaper editor to Anslinger in 1934). Jerome L. Himmelstein, The Strange Career of Marihuana. (Westport: Greenwood Press) 28-2961 Himmelstein 3062 Semiannual and annual reports produced by federal narcotics officials between 1926 and 1928 did not even mention marijuana. 63 Joseph F. Spillane Debating the Controlled Substances Act64 “A great deal of public interest has been aroused by newspaper articles appearing from time to time on the evils of the abuse of marihuana, or Indian hemp, and more attention has been focused upon specific cases reported of the abuse of the drug than would otherwise have been the case. The publicity tends to magnify the extent of the evil and lends color to an inference that there is an alarming spread of the improper use of the drug, whereas the actual increase in such use may

22

There is good reason for this and the context of 1930’s America provides the

explanation. At the beginning of the 1930’s, the Federal Bureau of Narcotics (FBN) was

struggling to merely survive the backlash from the feds shortcomings and failures during

Prohibition and at the same time up against court challenges to the Harrison Act65, all the

while fiscally and politically challenged by an America in the depths of the Great

Depression. In order to survive as an organization, it had to limit its purview. The FBN

thus resisted proposals for federal anti-marijuana legislation so that its enforcement

capacities would not be overextended any further, which would invariably strain its

resources and might work to destroy its legitimacy. Instead, the FBN’s strategy was to

let the states handle marijuana and small-time narcotics offenders, while it made the

general policy and took care of the large-scale trafficking.

In order to indoctrinate its conception of drug policy federalism as official policy,

the FBN pushed the states to pass the Uniform Narcotic Drugs Act. But by 1934 and

after several years of lobbying only ten states had passed the act. Those opposed to the

Act cited its expense, its bureaucratic excesses, and its interference with the

pharmaceutical industry and the medical profession. In response, the bureau reversed its

official position on marijuana and conjured “up the specter of a marihuana menace.”66 It

worked; and it did well beyond the expectations of the bureau. “The added publicity

given the drug made federal controls appear all the more necessary. In short, the

not have been inordinately large.”- Bureau of Narcotics, Traffic, 1931, p. 51 (found in Himmelstein, p. 55) 65 The Harrison Act of 1914 was a US federal law that regulated and taxed the production, importation, and distribution of opiates and cocaine (the distribution, sale and use of cocaine was still legal for registered companies and individuals).66 Himmelstein 59

23

bureau’s efforts to avoid federal marihuana controls eventually led to its having to

embrace them.”67

The hearing on the Marihuana Tax Act of 1939 lasted only two hours and upon its

conclusion, President Franklin Roosevelt signed the nation’s first federal marijuana

policy into effect on August 2, 1937. The nation’s first federal marijuana law did not

actually criminalize the drug itself. Rather, it made it illegal to transfer marijuana

without an approved tax stamp, pursuant to heavy fines and potential jail time for tax

evasion. In order to receive a tax stamp, a farmer would have to transport their harvest to

a single location in Washington D.C. for registration. In order to register for a tax stamp,

farmers would necessarily have to transport their harvest illegally and in doing so would

incur fines well in the excess of whatever profits yielded by the crop. The commercial

marijuana industry was crushed with one fatal blow and disappeared virtually overnight.68

Another parallel drawn between California’s experience with anti-marijuana

legislation and the federal government’s, is the underlying intent and purpose of the

legislation each produced. It is clear that both were designed to limit prevalence and

prevent widespread use of the drug. In both cases, this has undoubtedly failed.

Reefer Madness: From 1913-1973 and the War on Drugs

Since the enactment of anti-marijuana legislation, marijuana has become

increasingly more prevalent. In 1913 there were only a handful of users in California but

within the century since, this number has been multiplied exponentially to represent

something like ( ) California pot smokers. By current estimates, Californians

67 Himmelstein 5968 Marijuana: A Chronic History

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consume about three to six billion dollars worth of marijuana every year. Since 1913,

there have been well over 1,850,000 marijuana arrests recorded in the state. For the

current proponents of marijuana legalization, these numbers represent reefer madness.

The FBN’s anti-marijuana policy effort dominated public discussion of marijuana

in the mid-1930’s. “Policymakers and the media faithfully adopted the bureau’s image of

marihuana, repeating the bureau’s examples of marihuana related violence and ignoring

the data that the bureau chose to ignore.”69 Just prior to the passage of the Marijuana Tax

Act, Henry J Anslinger, director of the FBN, enlisted the help of the movie industry in its

propaganda ploys. Most famously, in 1936 Reefer Madness was released under the title

Tell Your Children. Tell Your Children “was financed by a small church group and was

intended to scare the living bejeezus out of every parent who viewed it.” Soon after its

release, it was purchased by Dwain Esper who changed the title to Reefer Madness.70

The film’s success was brief but its popularity among the cult cinema classic movie goers

has been long lasting. The film capitalized on the violent and maniacal image of

marijuana that Anslinger had given it.

Anslinger’s propoganda efforts were very successful, which led to a widespread

consensus of the drug. Newsweek labeled marijuana a “dangerous and devastating

narcotic” and Scientific American said that it was “a serious menace” and “more

dangerous than cocaine or heroin.”71 Nearly all articles from the time period regarded

marijuana in this way. Himmelstein relates the wide consensus about marijuana as

dangerous, cause of violent crime, and threat to the nation’s youth to the concept of FBN

69 Himmelstein 5970 http://web.archive.org/web/20060328163318/http://www.reefer-madness-movie.com/history.html71 Himmelstein 65

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hegemony (see Table below). “This consensus did not reflect a simple convergence of

several independent assessments of the available evidence. Instead, it was largely created

by the FBN, which effectively dominated public discussion of marijuana.”72

Danger of Use, 1935-194073

Articles regarding marijuana as:

Dangerous Not so Dangerous

20 (95%) 1 (5%)

By the 1950’s there had been a rather dramatic shift in the marijuana consensus.

It was no longer seen as a rampant menace, or an epidemic among school children. The

image of marijuana as mind destroying and violence-generating was replaced with the

image of marijuana as a gateway drug to worse things like heroin. Behind this change in

characterization of marijuana was the FBN.

Once the FBN had procured the Marihuana Tax Act, the FBN no longer had an

interest in portraying marijuana as an out of control epidemic. If the FBN had continued

on with its program of portraying marijuana as an epidemic and menace to society, it

would have suggested that it was failing in its law enforcement efforts. Editorials and

articles in print media from the time reflect this change in opinion of the drug. Science

Digest reports that “the behavior of the marihuana smoker is of a friendly sociable

character.”74

In the late 1940’s the average age of heroin users seemed to be declining. Less

than five years prior, Anslinger had gone on the record as saying that the marijuana user

was quite different from the heroin user. The marijuana user was generally in his teens or

72 Himmelstein 6873 Himmelstein 6574 Himmelstein 77

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early twenties while the opiate user was typically in his later thirties. When statistics

from federal narcotics hospitals in 1949 showed that the median age of those admitted for

heroin had dropped, the marijuana user and the heroin user suddenly appeared to be

drawn from the same age group. This gave rise to the Stepping-stone Hypothesis.

Himmelstein writes, “The rise of the Stepping-stone Hypothesis, in short, was consistent

with demographic changes in drug use as these were perceived by the bureau and other

policymakers.” He goes on to say that this however might not be the whole story.

According to Himmelstein, beginning with the commissioning of the LaGuardia Report

in 1939, the FBN was increasingly forced to defend its position on marijuana. Thus,

“The Stepping-stone Hypothesis also may have served the interests of the bureau by

allowing it to justify continued controls over marihuana despite skepticism about the

drug’s dangers…”75 It spared the FBN the task of continually responding to critics “by

allowing it to argue that although marijuana use might be innocuous enough to itself, it

led to heroin use, which was unquestionably dangerous. Once the hypothesis had

become accepted, moreover, the very harmlessness of marihuana became an argument

against its use.”76

Despite marijuana’s newfound regard as innocuous, Congress passed the Boggs

Act in 1951 and the Narcotic Control Act in 1956, both of which greatly increased the

penalties for drug offenses. By 1957 mere possession of marijuana carried a minimum

sentence of two years for first time offenders, five years for second time offenders, and

ten years for third time offenders. For many people, the increased penalties seemed

75 Himmelstein 8876 Himmelstein 88-89

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unfounded and absurd, leading to a new host of criticism. Beginning in the 1960’s

marijuana’s reputation as dangerous was seriously called into question.

The counterculture movement, begun in the late 1950’s by people like Jack

Kerouac and other beatniks quickly evolved a powerful social movement by the 1960’s.

Pop culture icons like Bob Dylan popularized the use of marijuana and it spread quickly

to a large group of disenfranchised, middle-class, suburban, white kids. Marijuana

quickly became the celebrated centerpiece of their counterculture movement. Smoking

marijuana was seen as a way to expand thinking and a symbol of their defiant resistance

to conformity.

As these troubled teens, increasing in number, found themselves in court and

subject to criminal sanctions, there was powerful impetus for a widespread departure

form the marijuana consensus. Himmelstein writes, “The spread of marihuana use to

middle-class youth gave these youth and their parents, including policymakers

themselves, a direct interest in reforming marihuana laws and thus injected a powerful

new force into the drug control debate.” The predominant opinion in the period from

1964 to 1967 was that the dangers of marijuana had been greatly exaggerated and that it

was not to be regarded as a dangerous narcotic (see Table below)

Articles regarding marijuana as:Time period Dangerous Not So Dangerous Sample Size

1964-1976 19 (43%) 25 (57%) 44 (100%)1890-1963 34 (77%) 10 (23%) 44 (100%)

1935-1940 20 (95%) 1 (5%) 21 (100%)

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The spread of marijuana to new demographic groups in America can also be

attributed to the war that was waging oversees in Vietnam. Many soldiers in Vietnam

found marijuana to be enjoyable, a relief for anxiety and anxiousness, and readily

available. Widespread drug use among soldiers in Vietnam, viewed by the Nixon

Administration as a potential cause for failure in the war effort, led the Administration to

engage the US in a new type of war.

The focus of this paper has been the regulation of drugs classified as narcotics, the

category in which cannabis was placed in, in ( ). Regulation of narcotic drugs was the

responsibility of the justice department’s FBN. However, in an entirely separate realm of

federal drug policy is the control and regulation of non-narcotic drugs, like amphetamines

and barbituates. This was the responsibility of the Bureau of Drug Abuse and Control

(BDAC), a branch of the Federal Drug Administration (FDA). The cornerstone of FDA

policy was the 1938 Food, Drug and Cosmetic Act, which “created a class of drugs

available only on a physician’s prescription, and gave the FDA authority to designate

which drugs would be placed in that category.”77 However, by the 1960’s it was clear

that the FDA was having just as hard of a time with controlling the increased incident of

non-narcotic drug abuse as the FBN was having with narcotic use.78 Throughout the

1960’s, there was a strong effort to stem the tide of increased drug use, both those

regarded as narcotic and non-narcotic drugs. Most of these efforts resulted in failure.79 In

77 Spillane 1978 The FDA lacked most of the tools it needed to regulate distribution. The agency had no ability t track manufacture, or distribution at the wholesale level, and only limited ability to track-retail level distribution. FDA inspectors investigating illicit sales could not carry weapons. Spillane 2079 Between 1961 and 1965, Congress considered several measures to reform federal regulation, including Senator Thomas Dodd’s proposed “Barbiturate and Stimulant Control Act” in 1962, and Pyschotoxic Drug Control Act in 1964, which was expanded by Dodd to include “barbiturates, amphetamines, and CNS stimulants, and

29

1965, Congress passed the Drug Abuse Amendments (DACA) but its many shortcomings

lead many to the conclusion that legislation providing for a more comprehensive

approach to drug control was needed. An additional impetus for comprehensive drug

control came as a result of the merger of the FBN and the BDAC into the justice

department’s newly created Bureau of Narcotics and Dangerous Drugs (BNDD), in April

of 1968.80 In 1970, Congress responded by passing the Comprehensive Drug Abuse

Prevention and Control Act.81

The Act of 1970, most importantly, sets forth the auspices of Title II, the

Controlled Substances Act (CSA). Joseph Spillane of the University of Florida writes,

“It (the CSA) replaced a long series of previous legislation, including the Harrison

Narcotic Act and the Marijuana Tax Act,” by specifying the authority of the federal

government and providing “a framework within which all existing and new substances

could be regulated based on abuse potential, safety, and medical utility.”82 The Act placed

controlled substances into categories based on medical utility and potential for abuse,

delineating different drugs into five different schedules.83 Most notably, marijuana was

placed in the Schedule I category, reserved for those drugs with “ “. Additionally, the

1970 Act set “prescription refill limitations, security standards, recordkeeping

requirements, order forms, production quotas, and the registration of importers and

exporters of controlled substances.”84 The heavy demands of the CSA, in effect produced

all those drugs,” like LSD, determined to be having a potential for abuse “that may result in psychotoxic effects or antisocial behavior.“ Spillane 2080 Spillane 2081

82 Spillane 1783 Schedule V pertains to…84 Spillane 25

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“an enormously closed regulatory system” and enabled the overseer of that system, the

BNDD, to emerge as an extremely powerful administrative agency.85

On March 22, 1972, the National Commission on Marihuana and Drug Abuse (aka

the Shafer Commission) in its report titled “Marihuana: A Signal of Misunderstanding”

recommended that “possession of marihuana for personal use no longer be an offense”

and that “casual distribution of small amounts of marihuana for no remuneration, or

insignificant remuneration not involving profit would no longer be an offense, based on

the conclusion that “[T]he criminal law is too harsh a tool to apply to personal possession

even in the effort to discourage use” and that “The actual and potential harm of use of the

drug is not great enough to justify intrusion by the criminal law into private behavior, a

step which our society takes only with the greatest reluctance.”86 Ignoring the report

from his own commission, Nixon declared “We need, and I use the word ‘all out war,’ on

all fronts” against marijuana.87

In order to better prosecute his war on drugs, he replaced the BNDD with the

Drug Enforcement Agency (DEA) in 1973. The new agency took a hard line against

drugs and marijuana was made the prime target. Keeping in mind that most people

viewed marijuana as relatively non-dangerous in and of itself, the theory, proposed by

counterculturalists of the time and now generally accepted by legalization proponents, of

the DEA’s hard-line approach to marijuana lies not with the drug but rather with the

people that used it.

“Its very difficult to get hippies off the white house lawn when they are protesting, unless you can criminalize their behavior, which in that case was smoking pot. Nixon was

85 Spillane 2586 Report from the Shafer Commission in 1972. Paul Armentano ‘Celebrating’ 35 Years of Failed Pot Policies87 Armentano

31

unfriendly to cannabis but more so because the people that were making his life difficult, used it.”- History, Cannabis: A Chronic History

Direct Democracy: The Policy Process of Marijuana Legalization in California

In 2010, fourteen years after the passage of Proposition 215, Californians were

once again confronted, on the ballot, with yet another cannabis initiative. The “Regulate,

Control and Tax Marijuana Act of 2010” was introduced to voters at the polls by

describing itself as a “common sense” approach to marijuana control. As this

introduction supposes, the ballot argument unfolds rather simplistically. First, it assesses

the current state of affairs, under marijuana prohibition, to conclude that prohibition is

quite obviously a problem. If this is accepted, then the conclusion that marijuana should

be made legal, necessarily, follows. As it turns out, the majority of California voters did

not see things so black and white and in the end voted down Prop 19. With a clear

majority in opposition, how did marijuana legalization find itself on the ballot in the first

place?

In order to understand how pot found itself on the ballot in California, we will

first need to understand the public policy process of direct democracy, thus far left

unaddressed in this paper. To do this, I will turn to a public policy model, developed by

John Kingdon. Kingdon’s model is extremely useful for the purposes of this paper. It

breaks down the policy process to its essential elements to provide a systematic mode of

analysis. It rather effectively, un-complicates the otherwise very complicated process of

policy formulation and provides a readily applicable policy paradigm from which to

examine specific cases.

32

The model, however, is meant to explain the policy process of legislation as set

forth by the American constitution and is not intended for use in explaining the function

of direct democracy. It cannot, thus, be strictly applied to our case study of the Prop. 19

ballot initiative in California. Nevertheless, one cannot help but notice at some basic

level the semblance of a Kingdon-like policy structure in our example of direct

democracy, Proposition 19. It is now my task to tweak Kingdon’s model to better fit our

examination of direct democracy and the Tax, Control and Regulate Cannabis Act of

2010. The ultimate goal is to reduce the complexity of the policy process of direct

legislation, to the same effect achieved by Kingdon.

Policy Models

Kingdon’s model endows us with three levels of analysis from which to examine

the policy process. These are problems, solutions and politics. For Kingdon, problems,

solutions and politics are to be understood as distinct process “streams,” that operate and

function irrespective of one another. The revised version of Kingdon’s model, I provide

will show that although the streams flow apart from one another, “largely governed by

different forces, different consideration and different styles”88 they do so alongside one

another and can come together at critical times.89 Our revised policy model when applied

to our case study of Prop. 19, exhibits a form of procedural narrative, whereby the

problem stream flows into the solution stream, are conjoined and together flow into the

political stream.

88 John W. Kingdon, Agendas, Alternatives, and Public Policies. (Michigan: Longman Press, 2003) 8889 Kingdon 88

33

First, in the problem stream, problems are called to the attention of people in and

around government. Second, in the solution stream, a policy community of specialists,

including: bureaucrats, academics, interest groups, and researchers, work to generate

potential solutions. Third, politics in the form of: swings in national mood, vagaries of

public opinion and interest group pressure campaigns effect the policy solution that is

chosen for the agenda.90

This paper will flow according to the narrative of Prop. 19’s policy formulation.

It will be divided into three different sections to reflect the three different process

streams. In each section I will expand on Kingdon’s model, to the extent as is necessary

to understand the public policy process of Proposition 19.

The Initiative Process- The Policy Process of Marijuana Legalization in California

The Problem Stream

The first of Kingdon’s processes to be addressed is problem recognition. He

explains that a problem comes to the attention of people in and around government by

way of indicators, focusing events, crises, and symbols. Indicators show that a problem

exists and might need government action. Many times they result from routine

monitoring of various activities and events, conducted by both governmental and

nongovernmental agencies. They watch for changes in patterns of things like: highway

deaths, disease rates, consumer prices, costs of entitlement programs, etc.91 Kingdon tells

us that one of the most common of the routine monitoring activities is following the

patterns of federal expenditures and budgetary impacts.

90 Kingdon 8791 Kingdon 90

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Indicators may also be the result of studies conducted on a particular problem at a

given point in time, either by a government agency or by nongovernmental researchers

and academics. According to Kingdon, decision makers use indicators in two major

ways: first, to assess the magnitude of a problem and second, to become aware of

changes in the problem.92 A change in an indicator may be viewed as problematic

because for better or worse it indicates a shift from the status quo. “Policy makers

consider a change in an indicator to be a change in the state of a system; this they define

as a problem.”93 Once the public is alerted to the change in the indicator, the change is

almost always exaggerated because people tend to believe the change is symbolic of

something larger and no longer in conformity to their previous experience.

Consequently, indicator change can have powerful and “exaggerated effects on policy

agendas.94

Long before Proposition 19 was conceived, it was recognized that there was a

problem with marijuana prohibition. Following Nixon’s declaration of war on marijuana,

routine monitoring of various groups, including governmental agencies like the DEA,

revealed statistics that indicated, despite heavy enforcement and penalty schedules,

middle class marijuana use was steadily rising. All across the country, people began to

take notice of this trend and this had powerful implications for the way in which

marijuana was perceived. As the public was made aware of the high rates of marijuana

use among children and teenagers of the middle class, many were forced to reevaluate

previously held stereotypes of the marijuana user. In most cases, the “new” marijuana

user was a respectable individual. Despite their differing ideals, this omission allowed

92 Kingdon 9193 Kingdon 9294 Kingdon 93

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the public “to see them as total human beings, not merely drug users.”95 Himmelstein

writes, “The wholly negative image of marihuana and the draconian penalties for use that

had been acceptable when users were socially marginal gave way once use shifted to the

middle class.”96

Findings from reports, like the Shafer report, altered the public perception of

marijuana and allowed many to reassess its danger; and routine monitoring indicated high

rates of arrest among the middle class. Together, these statistics and findings forced a

change in the public’s perception of the problem “indicator.” Parents, who had once seen

marijuana as dangerous became less likely to view its users as criminals, especially when

those users were their own children. Change in perception of the problem indicator and a

fear that their children would be stigmatized as criminals, inspired a powerful group of

parents, some of which were politicians, to begin lobbying state legislatures to change

existing marijuana policy. In 1976, the costs associated with enforcing marijuana laws

along with prosecuting and incarcerating offenders became so high that the California

legislature bowed to the desires of lobbyists and decided to break from federal policy,

reducing the penalty for possession from a felony to a misdemeanor. In the years since,

many states have followed California’s lead. Currently thirteen states have enacted

similar versions of marijuana “decriminalization.”

95 Himmelstein 10696 Himmelstein 30

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