How the Ohio legislature blocked marijuana decriminalization for the next 20 years

All of the attention in yesterday’s Ohio election was on Issue 3, the proposal to legalize marijuana. However, Issue 2, a proposal to protect “the initiative process from being used for personal economic benefit,” a poison pill inserted by the Ohio legislature, also passed. The vote was much closer on Issue 2 than 3. I was advising people that if they wanted to vote against Issue 3, just vote against Issue 3. Here’s how Issue 2 is likely to prevent future decriminalization efforts and a few lessons learned for those of us interested in decriminalizing marijuana in other states.

Ohio Bureau of Criminal Identification & Investigation (BCI) recover 203 marijuana plants in Meigs county. Photo CCNC 2.0 courtesy of Ohio Attorney General.

Here’s what Ohio Issue 2 said. The proposed amendment would:

Prohibit any petitioner from using the Ohio Constitution to grant a monopoly, oligopoly, or cartel for their exclusive financial benefit or to establish a preferential tax status. … Require the bipartisan Ohio Ballot Board to determine if a proposed constitutional amendment violates the prohibitions above, and if it does, present two separate ballot questions to voters. Both ballot questions must receive a majority yes vote before the proposed amendment could take effect.

Basically, the amendment puts determination of what constitutes a monopoly, oligopoly, or cartel, in the sole hands of the Ohio Ballot Board. The Ohio Ballot Board consists of Secretary of State Jon Husted (R), two Republicans, and two Democrats. In other words, this constitutional amendment that was just passed puts sole control of determining whether all future ballot proposals are some kind of monopoly in the hands of Secretary of State Jon Husted. Here’s why this likely blocks decriminalization for a long time to come.

1. The state legislature won’t touch the issue because it is majority Republican and they would face a political backlash. Primarily from older, “tough on crime” Republicans. A ballot initiative is therefore the only political chance for decriminalization in Ohio.
2. Roughly $20-30 million is required to pass a ballot initiative in the state. Any initiative.
3. ResponsibleOhio raised this money from investors based on their ability to make a profit. The only way they can make a profit is if they have growing privileges for some amount of time. This time around, they proposed 10 growers.
4. In the future, however, because of Issue 2, this is now virtually impossible. The legislature can say a monopoly or oligopoly is whatever it wants. 100 growers? 1000 growers? They can literally block it for any number of investors.

Now you might say, as I’ve heard from many: “Good.” Everyone should be allowed to grow and sell marijuana. The problem with this approach is that “everyone” is not going to fund $20-30 million to pass a ballot initiative. Raising the $20-30 million requires some guarantee of profiting. Even if it’s a short term guarantee.

A few lessons for the future

One of my big lessons learned (and I just learned this last week) was that the Ohio legislature could put issues on the ballot and, more importantly, that people don’t realize these aren’t “people backed” initiatives.

ResponsibleOhio, whether you agreed with them or not, gathered 700,000 signatures for Issue 3. Issue 2 was put on the ballot by Republicans in the state legislature as a poison pill, not just for this ballot initiative but for any future efforts at legalization. It’s really devious too and confused the hell out of most people I know who generally follow politics pretty closely. When I explained what was going on to people, they overwhelmingly agreed and voted against Issue 2. However, the issue was hardly touched in the media and so snuck through on the coat tails of opposition (though by a much slimmer margin).

My other lesson learned is that perhaps we shouldn’t be so afraid of the idea of someone profiting. The number of alcohol producers in Ohio are also limited. Yet no one is screaming. Words like “cartel” and “oligopoly” and “kingpin” were being tossed around casually when it would simply have been a state regulated business.

Could there have been more producers? In my opinion, sure. Was this some kind of evil criminal enterprise? I don’t think so. I think the group looked at the money it would take to get 700,000 signatures and funded the effort on the hopes of future returns.

Is this regulated industry worse than all the people who will remain in prison because we didn’t decriminalize marijuana? Is Nick Lachey worse than the currently illegal drug trade we have in Ohio?

One of my favorite comments comes from this Salon article:

Black men are currently four times more likely to face prison on cannabis charges. Maybe we should ask them about whether 10 growers constitutes a deal-breaking monopoly.

And unfortunately, on the backs of all the frothing anger, the Ohio legislature snuck through a poison pill that will prevent future efforts and likely sets marijuana decriminalization in Ohio back 20 years.

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David Akadjian is the author of The Little Book of Revolution: A Distributive Strategy for Democracy. Follow @akadjian