Reefer Madness Revisited

Members of the Texas Hemp Campaign proudly display their support for the legalization of marijuana by dropping banners from the 11th Street bridge on the last Friday of the month. (Photo by Jana Birchum)

It's been five years since we sat down with Rob Kampia, co-founder and executive director of the Marijuana Policy Project, and what a difference those five years have made ("Reefer Madness," Aug. 31, 2007). Eighteen states and the District of Columbia have now legalized medical marijuana, Massachusetts passed a model decriminalization law, and just last month, two states voted to end marijuana prohibition altogether. And behind most of those actions are Kampia and the MPP. Indeed, Kampia has co-authored most of the medical marijuana laws on the books, his group spent years laying the groundwork for the successful legalization initiatives in Wash­ing­ton and Colorado, and the MPP was – by far – the biggest financial backer of the successful campaign in Colorado.

A recent Quinnipiac University poll found that support for legalizing marijuana for recreational use now tops 50% nationwide, and in a USA Today/Gallup Poll earlier this month, 64% of voters said that once a state legalizes pot, the feds should back off and butt out. With the landscape of marijuana regulation changing so dramatically and, relatively speaking, rapidly, we took time out to sit down with Kampia, in town for a vacation, to discuss the future of pot prohibition, the role of the feds, and whether Texas will ever get in the game. [Editor's note: This interview has been lightly edited for clarity.]

Austin Chronicle: Where are you compared to where you thought you'd be?

Rob Kampia: I think we're about at where I thought we'd be, because I knew that we were going to have to legalize medical marijuana in a bunch of states. I knew Congress was going to be a problem the whole way through.

AC: That's an understatement.

RK: Right. And I felt that eventually we were going to end marijuana prohibition entirely in a couple states and see where we're at. And that's basically on track to where and when I thought we'd be – because I knew it was going to be a long haul. I'm a very patient person.

AC: Given the Colorado and Washington [votes, legalizing marijuana for recreational use] ... are you surprised it was those two states or not? I'm not particularly surprised about Colorado, because it seemed like they were getting closer than anyone.

RK: For many years, the polling indicated that the states should have been Alaska first, Nevada second, California third. And then after that it would be a hodgepodge with Colorado, Washington, Oregon, and maybe Arizona. And then as time has passed, the polling has shifted and there were other issues with Alaska that took it out of the game. So, you know, as of two years ago, it became clear to me that these would be the first two states, but it was only two years ago.

AC: I wanted to ask you about Nevada, where this tax-and-regulate scheme [like Colorado and Washington] came first before voters [in 2002]. And it always looked like it was going to be a go, and then it wasn't. And then the second time it was, OK, you can make up those points ... because the polling was good. So what do you think happened there, ultimately? And do you think there were lessons learned there that were integral to getting where we are now?

RK: With regard to Nevada, the reason we lost twice there, in 2002 and 2006, was, first of all, because we had not only not any support from the political establishment, but we had vocal opposition from the political establishment. That doesn't necessarily make or break a campaign, but it does make a bit of difference.

And then also, another situation with Neva­da is that they haven't really had any positive experience with marijuana culturally. And so that was working against us. Because a lot of folks in Nevada were maybe libertarian-minded, so they were open to the idea, but they weren't really exposed to marijuana as a cultural/business issue. So the lessons learned from Nevada include things like, run an initiative during a presidential election instead of during a midterm election – that was a major lesson. Another is, if you're going to run ads, which hopefully you have the money to do – and which luckily we have had the money to do in Nevada and in Colorado – you want to run ads that don't scare people. We used to try to run ads that would scare people about prohibition. But instead what we decided was to try to make people comfortable about regulation. So that was a major thing.

AC: That makes sense. So, then, were you surprised about California not [legalizing marijuana for recreational use in 2010]?

RK: No. And I told them in advance, the folks who were talking about running an initiative in 2010, I talked to them in 2008 and 2009, and I said, "If you run an initiative in 2010, it's definitely going to fail."

AC: Why?

RK: The polling showed it.

AC: What was the problem there?

RK: It was just premature.

AC: So how much has your organization been a player in these initiatives, generally? And then also how much in these two recent and successful ones?

RK: Generally we were responsible entirely for the initiatives in Montana in 2004, Mich­igan and Massachusetts in 2008, Arizona in 2010, and then Colorado – we were 95% of that campaign in 2012.

AC: And you were big players in Nevada too, right?

RK: I thought you were talking about the winning initiatives. If you include the losing initiatives, we lost twice in Nevada, and we also lost ... it wasn't really our initiative, but we lost money in the South Dakota initiative in 2006. ... And then we also lost in Arkansas two weeks ago. So we've racked up a few losses.

AC: You didn't have anything to do with Washington?

RK: Our grants program funded an operation in Washington state from approximately 2003 or 2004 to 2009. And the whole purpose of it was to build political and institutional support for legalization so that one day we could run an initiative. So we built the groundwork there, and then we handed the baton over to the ACLU folks, who took it over the finish line.

AC: So you must be proud of this machine that you built – it's really come a long way. Is Peter Lewis [chairman of Progressive Insurance Companies] still involved?

RK: Yes, he's still involved. He actually funded about a third of the Washington initiative.

AC: I guess the question is what happens in Colorado and Washington. What do you think happens next?

RK: I think that both state governments are going to implement the initiatives faithfully and fairly. I think that both state governments are already involved in talking to the U.S. Justice Department to see how they can craft their state regulations so that they're least offensive to the feds. So that's already happening.

But, specifically, one development in Colorado is that the governor and the state legislature knew that marijuana was going to become almost the only topic of conversation in this upcoming legislative session, and they wanted to avoid that – because while they want to implement it, they don't want marijuana to be the only thing in the news for the next five months. So they're forming a commission, a nonbinding commission that will have a couple state legislators, someone from the governor's office, someone from ... the state attorney general's office, [and] one of our campaign people. It will be a task force, and the whole point of the task force is to come up with legislation that everyone can agree on, and then the legislature can just ram it through.

AC: That's actually pretty smart.

Rob Kampia

RK: Yeah, I don't have a problem with that. I actually think it's good for us because it's easier to have sensible conversations around a table of eight or nine people. ...

One difference between Colorado and Washington that was not highlighted in the campaigns ... is that in Colorado, we gave explicit permission to local governments to ban marijuana businesses. Not possession, just business. So what you're going to see in Colorado is a couple dozen cities banning businesses, and then some cities immediately embracing businesses. So the good cities will be Telluride, Denver, Aspen, Boulder, maybe Colorado Springs. Then the cities that will foolishly ban businesses will start to get jealous over the next couple of years because they're going to start seeing the tax revenues of their neighboring cities and then they're going to be repealing their bans. So I'm going to give you the chess game here, two moves in advance: Cities will ban, and then cities will repeal their bans, OK? ...

In Washington state, cities do not have the option to ban, so cities ... will be more concerned with things like zoning. Having it be reasonable – don't have them setting up next to schools, but they have to have them somewhere in their cities.

So that's one thing. Another thing to note is ... in Colorado the law actually allows adults to grow up to six plants – whereas in Washington state, adults aren't allowed to grow any of their own plants. So, even if the business side of things doesn't go smoothly in Colorado because of litigation or whatever reason, adults will still be able to possess, consume, and grow their own, and nobody will be able to do anything to touch that. In Washington, it's a little more precarious.

AC: Do you have any sense what the feds are going to do? How do you feel the Obama administration has done in the states where you have medical marijuana pass? Do you think there are any cues there to what we're going to see going forward with this?

RK: Obama ended up – you know, at the beginning he was the best president on medical marijuana, and now he's the worst president in the history of the country on medical marijuana. ...

When he was campaigning in 2007 and into 2008 he said, explicitly, on video and elsewhere – and we were the ones who [recorded] him – that he would not want the Justice Department to interfere with state medical marijuana laws. He was clear about that, and he was consistent. And then after he was elected, in 2008, Eric Holder said the same thing, on TV; and then in October of 2009, the Justice Department issued a memo saying the same thing. Late '07, '08 and '09, they were consistently awesome.

And then it all changed, and they became the worst by having federal prosecutors threatening landlords with property forfeitures. And there were obviously actual raids, where they were kicking in doors, which is the worst that could happen.

AC: What do you think happened there?

RK: You know, I just wrote a column for Playboy magazine, which was just published, which deconstructed this, but I'll give you the short answer: I don't think it was a political decision. I don't think it's good politics to go after cancer patients. ...

I don't think it's good policy. I don't think anybody in the White House said they wanted to divert resources away from going after violent cartels and instead go after medical marijuana patients. I don't think it was a public policy thing. And I don't think it's ideological. ...

And so the process of elimination, it's that Obama is a bad manager. So even though Obama spiritually wanted medical marijuana to be deemphasized, his underlings are used to going after marijuana, because that's how they've been trained. And if you're a bad manager and you let your employees do whatever they want, then they're going to go after the easiest targets instead of the more important targets.

AC: So now what do we do? In one way maybe he's given another chance to manage better and to fulfill what you believe. Or are we going to see trouble of a different kind?

RK: It's tough to say, because one thing we saw with the California initiative in 2010 was that the nine former heads of the [Drug Enforcement Administration] – all nine of them – wrote a letter to the Justice Depart­ment and said, "Can you please give an opinion on this legalization initiative in Califor­nia?" And the Justice Department waited a couple weeks and then wrote and said, "Yeah, we oppose it." And that became a news story, even though it wasn't really a news story.

But then, two years later, the same nine buffoons who used to head up the DEA wrote the same letter to the Justice Depart­ment and asked the same question. ... And the justice department didn't answer at all.

That is interesting. Oops! They screwed up. The difference was that in California in 2010, there was no presidential election, and California's not a swing state anyway. Colorado in 2012, it was one of the top three swing states. So, the Justice Department – you know people like to pretend or to joke that the Justice Department is not a political entity: It is a political entity. And the Justice Department/White House decided it didn't want to get tough on marijuana in Colorado, because if they did it could lose them the presidency.

So there was radio silence. And, by the way, even after Obama secured his election, he could say whatever he wants. He could be as jerky as he wants to. And the White House and the Justice Department are still silent. So, we're cautiously optimistic.

AC: So, practically speaking, [Colorado and Washington] go now to [the U.S. Department of Justice] and say, "Hey DOJ, guess what? You already know? OK, now what?"

RK: Both state governments have asked the DOJ, they said: "We're going to be implementing these laws, because we have to. By the way, what is your opinion?" In both incidences the Justice Department said, "We're reviewing these two state laws" ... and so they're in a review period ... which is fine with me. In fact, I'd like them to keep reviewing it for at least another four years. We want them to do nothing.

AC: OK. So they don't weigh in. What happens then if you get a Jeb Bush or some other Republican who doesn't feel the same way? You think maybe by then you've demonstrated that this works?

RK: Yes, after four years of marijuana being regulated it ...

AC: Becomes something you can't touch?

RK: Yeah, it becomes almost impossible to put the genie back in the bottle.

AC: So it sounds like what you really want is, maybe, two good years, or four, with these two [states] and then some other state then [maybe legalizes too] – is that the idea?

RK: Yeah, we want to pick off a few states every four years. It will escalate, obviously. We may get one state in 2014; we think we could get three or four states in 2016 – because presidential elections are better – and then who knows after that. But I'm guessing it'll escalate – I don't think it's going to be four states every four years forever. I think it's just going to end up being a change in federal law at some point after 2016, and then the house of cards falls.

AC: And then that would leave it to the states to do as they will.

RK: Right. It doesn't mean that every state is going to have legal marijuana after the federal law changes. I think what will happen is that after the federal law changes, most states will then regulate marijuana like alcohol, but in some states it'll be statewide, while in other states – like Texas or Arkansas – it'll be certain counties will be dry ....

AC: I was going to say, what about Texas? You told me before that Texas would, essentially, be one of the "come-along" states. That it's never necessarily going to be a leader.

RK: I haven't reviewed the interview I did with you five years ago, but I'm sure I probably said something like: states, federal, states. So that's what we're doing now – states [change their laws], the federal law changes, and then Texas will change after that.

AC: Exactly. That's exactly it. A come-along – we'll be pulled into it by time, like erosion.

RK: It's inevitable. Because Texans are going to get really frustrated if all these other states have really good economies and Texas is not having a good economy because cops are sniffing under people's doors and marijuana is not being taxed and Mexican cartels are setting up shop across Texas. That would be stupid.