On the surface, legalizing marijuana in California next year seems like a slam dunk. No other part of the country is more economically and culturally accepting of cannabis than the Golden State, where three northern counties produce the vast majority of the nation's domestically grown weed. But the size and power of California's $1.1 billion pot industry poses a unique challenge to legalization advocates. Existing pot farmers and vendors want any new California law to protect them from the high taxes and strict regulations that have been enacted by other legal-pot states. "The first way we can lose is to go too far, to demand too much in the text of our initiative," veteran marijuana campaigner Bill Zimmerman said last week in a speech at an industry conference in Oakland.
"California history is replete with examples of initiatives that started with far greater support, yet still lost."
Any recreational pot measure must also appeal to the moderate voters who make up a third of the electorate, a group that's "unhappy about marijuana but reluctantly willing to legalize it," said Zimmerman, who shepherded through Prop. 215, the state's pioneering medical marijuana initiative, nearly 20 years ago. "Our 2016 effort has to be guided by an understanding of just how far these voters will go. Our beliefs about what is right have to be put aside in the interest of what is possible."
A 2016 measure could just as easily lose, he added, if it splits the pro-marijuana community, as the state's first failed recreational pot initiative, Proposition 19, did four years ago. (Fearing a drop in prices, all three counties in the state's pot-growing Emerald Triangle voted against it.) "Our opponents will jump at the chance to advertise our disagreements," he said, which could be "devastating."
Crafting a successful initiative will be an unusually delicate balancing act, admits Lynne Lyman, California director of the Drug Policy Alliance (DPA), the group expected to take the lead in drafting the measure. "There are so many issues that need to be researched and debated and vetted just to come to a consensus within the marijuana community," she says, "and then we have to make sure that the outcomes of these deliberations are things that the public wants."
Some 58 percent of Californians now support legalization, according to a poll DPA conducted last February. "California history is replete with examples of initiatives that started with far greater support, yet still lost on election day," Zimmerman cautions. But there's also some buyers remorse among legalization advocates in states where they compromised to win support from groups such as law enforcement. Critics cite problems with Washington's strict stoned driving law, for example, and say taxes and permit fees in all four recreational pot states are too high to support small producers or put an end to the black market, which can offer lower prices.
"I say we draw the line to make sure illegal growers are part of the solution, or else they will continue to be part of the problem."
Dale Sky Jones is executive chancellor of Oaksterdam University, the cannabis college founded in Oakland by Richard Lee, who was the driving force behind California's Prop. 19. Jones says the mainstreaming of cannabis now gives the state the chance to pass an initiative that's much more sensitive to the needs of the industry—in particular to the yeoman pot farmers who prop up Northern California's rural economy. "I say we draw the line to make sure they are part of the solution," she says, "or else they will continue to be part of the problem."
Bringing the Emerald Triangle growers out of the shadows would probably involve granting small farmers tax and regulatory exemptions not available to industrial growers. It could also reward outdoor growers for their smaller carbon footprints. (Indoor grows have been estimated to use a staggering 9 percent of California's electricity). The incentives would need to convince growers it's worthwhile to open their doors to environmental and health inspectors—no small task in a state where illegal growers export pot nationwide and the cultivation of medical marijuana has gone virtually unregulated.
But there are signs the pot industry is ready for a change. Bill Panzer, an attorney for Emerald Triangle growers, says his clients are now much more in favor of legalization than they were four years ago. "They want to come out of the cold. They want not to worry about the helicopters," he says. "But they want it in a way that's economically feasible."
Of course, pot growers don't account for a large part of the electorate, and the pro-legalization folks ultimately could decide to stick to what's worked in other states. Jones, for one, thinks that would be a mistake. "I don't know if you can pass an initiative without the base," she says. "I know the base is willing and able to be extremely disruptive. They have it in them. And then you are looking at 2020."
Following a string of high-profile corporate hacks at companies such as Target, Home Depot, and Sony, President Obama is now urging Congress to improve how companies respond to data breaches. He wants to require them to disclose consumer data breaches within 30 days of discovering them, make it easier for companies to share information about hacking threats with one another and the federal government, and criminalize the sale of botnets, programs used to coordinate attacks.
But while those may sound like good ideas, they're not winning universal support from top digital rights groups. "President Obama's cybersecurity legislative proposal recycles some old ideas that should remain where they've been since May 2011: on the shelf," writes the Electronic Frontier Foundation (EFF).
Here are the top five concerns with Obama's proposals:
1. They may allow companies to share your personal data with the NSA: Companies would receive legal immunity in connection with sharing information about threats with a cybersecurity center headed by the Department of Homeland Security, which could immediately pass it along to the National Security Agency and other federal agencies. The proposed disclosure law, which would trump other state or federal data-privacy laws, would require companies to take unspecified "reasonable" steps to strip information that could identify a specific person before sharing it, but only for individuals "reasonably believed to be unrelated to the cyber threat."
2. Private companies and the government already share information about security threats: The sharing happens through the nonprofit Information Sharing and Analysis Centers and Homeland's Enhanced Cybersecurity Services. "The question is what gap this bill is trying to fill when we already have a robust information sharing machine," says EFF legislative analyst Mark Jaycox.
3.The reforms would increase penalties under the draconian Computer Fraud and Abuse Act: The notoriously broad and stringent CFAA is best known as the tool used by the feds to prosecute digital rights activist Aaron Swartz, who killed himself in 2013 while facing 35 years in jail and $1 million in fines in connection with downloading copyrighted scientific articles. "We've repeatedly seen government prosecutions that use the CFAA's tough penalties to bully people," says Jaycox. In a press release, the White House says it wants to ensure the act isn't used to target "insignificant conduct." But a close reading of its proposed reforms appears to tell a different story: One provision increases the penalty for stealing data from any "protected computer" from one year to three, even if it wasn't done for commercial gain.
4. They supersede state laws: The White House's consumer data breach law would supersede at least 38 state data-breach laws, some of which are more stringent than the proposed federal standard. The law proposed by the White House would apply only to businesses that store information on more than 10,000 individuals, but California, Florida and some other states have disclosure laws that apply to any company that experiences a data breach affecting more than 500 people. "Any such proposal should not become a back door for weakening transparency or state power," the EFF said in a statement, "including the power of state attorneys general and other nonfederal authorities to enforce breach notification laws."
5. They could limit online civil disobedience: There are plenty of legitimate reasons to curtail the sale of botnets, but they've also been used by activists to carry out distributed denial of service (DDOS) attacks against repressive governments and corporate ne'er-do-wells. Last year, the hactivist collective Anonymous posted a petition on Whitehouse.gov asking that DDOS attacks be recognized as a legal form of protest similar to the Occupy protests. Under the CFAA, carrying out a DDOS attack can already land you in jail for many years, but now the White House wants to further clamp down on the practice by specifically allowing the Attorney General to go after botnets that help enable them.
Local fracking bans.Laws outlawing plastic bags. Strict tree-cutting ordinances. Another day in California? Nope. Welcome to life in urban Texas, where Democratic-controlled city councils are enacting powerful consumer and environmental protections—much to the chagrin of the state's leading conservatives. "Texas is being California-ized, and you might not even be noticing it," Gov.-elect Greg Abbott complained last week at a meeting of the conservative Texas Public Policy Foundation. "We're forming a patchwork quilt of bans and rules and regulations that is eroding the Texas model."
This, he added, is a nasty "form of collectivism" that could "turn the Texas miracle into the California nightmare."
Though California has long been a conservative bête noire, Abbott's comments highlight a rising fear among Texas Republicans. More than half of all Texans now live in 10 large urban counties that are growing much faster than the state as a whole. Their voters tend to be more liberal than other Texans, a trend that's accelerating as minorities, young people, and out-of-staters settle there, lured by cosmopolitan neighborhoods and good jobs. According to a 2012 analysis by the Houston Chronicle and San AntonioExpress-News, 70 percent of Democratic gains in Texas since 2000 have come from the four counties that encompass Dallas, Houston, San Antonio, and Austin. All of them voted for Barack Obama in 2012.
"My vision," said the Texas governor-elect, "is one where individual liberties are not bound by city limit signs."
In a state known for caring more about hot-button social issues than consumer or environmental protections, it should come as no surprise that urbanites would turn to their city councils to tackle quality-of-life issues the state prefers to ignore. The fracking ban enacted this November in Denton, a college town near Dallas in the gas-rich Barnett Shale formation, is a case in point: It might have never passed had residents felt the state was doing enough to protect them. "It says the industry can't come in and do whatever they want to do to people," Cathy McMullen, the head of the Denton Drilling Awareness Group, told the Washington Post. "They can't drill a well 300 feet from a park anymore. They can't flare 200 feet from a child's bedroom anymore."
Last week, the governor-elect went on to suggest that the Legislature should crush such liberal local regulations. "My vision," Abbot said, "is one where individual liberties are not bound by city limit signs."
But critics quickly accused him of hypocrisy. "It's disappointing to hear the governor-elect wants to overrule the will of city voters on a range of issues," Bennett Sandlin, the executive director of the Texas Municipal League, which represents city governments, said in a press release. "It amounts to the same kind of governmental overreach at the state level that he opposes when it comes from Washington."
That the new governor has so quickly backed himself into a rhetorical corner may reflect his party's increasingly cramped political circumstances. Demographic trends strongly suggest that Texas will turn blue. The state GOP, sandwiched in between the big federal government and a lot of pesky little local ones, almost seems to be defending the political equivalent of the Alamo.
Almost, but not quite: The Alamo is in San Antonio, now a stronghold of Democrats.
Nebraska is mad that Colorado pot is crossing its border
The attorneys general of Nebraska and Oklahoma petitioned the US Supreme Court on Thursday to overturn pot legalization in Colorado, arguing that its legal weed has been spilling across their borders and fueling crime.
"The state of Colorado has created a dangerous gap in the federal drug control system," the suit alleges. "Marijuana flows from this gap into neighboring states, undermining Plaintiff states' own marijuana bans, draining their treasuries, and placing stress on their criminal justice systems."
The Department of Justice pledged last year not to interfere with pot legalization in Colorado and Washington, but only if the states met a list of conditions, including preventing legally purchased marijuana from being diverted to states where it's illegal. Nebraska and Oklahoma are now arguing that the Supreme Court should compel the DOJ to act.
Evidence has been mounting that Colorado can't contain all of its weed. In June, USA Todayhighlighted the flow of its marijuana into small towns across Nebraska. Since 2011, the paper reported, felony drug arrests in Chappell, Nebraska, a town just seven miles north of the Colorado border, have jumped 400 percent.
But marijuana reformers argue that governments can't contain illegally purchased weed either, and that a few growing pains on the path to a more sensible drug policy are inevitable. "These guys are on the wrong side of history," Mason Tvert, communications director for the pro-legalization Marijuana Policy Project, said in a statement. "They will be remembered similarly to how we think of state officials who fought to maintain alcohol prohibition years after other states ended it."
Nebraska attorney general Jon Brunning has actually become too eager to support the alcohol industry, Tvert adds. Between 2008 and 2012, beer, wine, and alcohol interests donated $86,000 to Brunning. In 2012, he advocated for a lower tax rate for sweetened malt beverages such as hard lemonade. "It appears he is fighting to protect their turf," Tvert says. "He should explain why he thinks Colorado adults should not be able to use marijuana instead."
Steven D'Angelo's Harborside Health Center in Oakland, California, was a target of the federal government.
Good news for medical pot smokers: The $1.1 trillion federal spending bill approved by the Senate on Saturday has effectively ended the longstanding federal war on medical marijuana. An amendment to the bill blocks the Department of Justice from spending money to prosecute medical marijuana dispensaries or patients that abide by state laws.
"Patients will have access to the care legal in their state without fear of federal prosecution," Rep. Sam Farr (D-Calif.), a supporter of the rider known as the Hinchey-Rohrbacher amendment, said in a statement. "And our federal dollars will be spent more wisely on fighting actual crimes and not wasted going after patients."
The DOJ's earlier pledge not to interfere with state pot laws left it plenty of wiggle room.
The Department of Justice last year pledged not to interfere with the implementation of state pot laws, but the agency's truce left it with plenty of room to change its mind. Earlier this year, for instance, the DOJ accused the Kettle Falls Five, a family in Washington State, of growing 68 marijuana plants on their farm in Eastern Washington, where pot is legal. Members of the family face up to 10 years in jail—or at least, they did; the amendment may now stop their prosecution.
More broadly, the change provides some added peace of mind for pot patients in California, where the DOJ's pledge appeared not to apply. The Golden State's 1996 medical pot law, the first in the nation, has long been criticized by the DOJ as too permissive and decentralized.
Medical marijuana activists hailed the amendment's passage as a landmark moment for patients' rights. "By approving this measure, Congress is siding with the vast majority of Americans who are calling for change in how we enforce our federal marijuana laws," said Mike Liszewski, Government Affairs Director for Americans for Safe Access.
The CRomnibus spending bill wasn't a universal victory of marijuana advocates, however. Another rider aims to prevent the District of Columbia from legalizing marijuana; it prohibits federal funds being "used to enact any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance." But Reason's Jacob Sullum notes that the rider may be moot because DC's pot law has already been "enacted" by voters—it passed at the polls in November by a 2-to-1 margin.
Whatever the outcome in DC, the appropriations bill is an undisputed win for pot smokers. As Slate's Josh Voorhes points out, "the District is home to roughly 640,000 people; California, one of 23 states were medical pot is legal, is home to more than 38 million." In short, Congress has done a bit of temporary weed whacking in its backyard, but it's acknowledging that stopping the repeal of pot prohibitions by the states is all but impossible.