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  1. 1. Prop. 19: The Regulate, Control and Tax Marijuana Act of 2010<br />Intro- What is Prop. 19? <br />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, 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. <br />The Foundations of Direct Democracy (theory section)<br />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. <br />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.<br />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 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. <br />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. <br />Direct Democracy in America<br />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 Constitution. What is more, direct democracy as a phenomenon occurs only at the state level and only in a handful of states. <br />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.” <br />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,” 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 demise a little over a decade later. One of their most powerful and lasting contributions is the topic of this paper, direct democracy. <br />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. <br />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.” In Oregon, the Populists fought aristocratic privilege. In Washington, they fought against the “machine-controlled legislature.” 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 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. <br />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.”<br />Direct Democracy in California<br />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. There was too little farmland and too large of urban areas. Land ownership was concentrated and citizens complained of a land monopoly, as a result. 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.” This was all soon to come to an end, however, by the power of 19th and 20th century Progressive movements.<br />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.” 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. <br />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.” This is not to say, Progressives rejected representative government in principal. They merely meant to supplement it. <br />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 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. The Populists and Progressives had their success and brought with them new levels of transparency to government. <br />Assessing the intent and efficacy of direct legislation<br />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. 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?” <br />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 ‘interest’ groups.” From this assertion some might draw the conclusion that narrow interests can buy “favorable” legislation. <br />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, 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.” This provided the basis for an enduring professional campaign industry that has arisen to take the place of the political parties in legislative politics. <br />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.” 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. <br />“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,” 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.” When a citizen’s initiative takes the form of a contest between broad based interests and specialized well-financed interests, as is often the case, 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.<br />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.” They criticize the directly democratic process by pointing to the susceptibility of voters to “slick” ad campaigns because they 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. <br />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. <br />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.” These examples will 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. <br />Proposition 13<br />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. <br />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. 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 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. 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. By 1978, with home ownership threatened by escalating property tax bills, the fate of Proposition 13 was sealed.” On June 6, 1978 California voters adopted Proposition 13 to lower and stabilize tax rates, by a margin of 65-35.<br />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. <br />“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). <br />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. <br />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.” Indeed, many of the “No on 13” coalition members believed that Proposition 13 could not be defeated without offering Proposition 8 as an alternative. <br />Proposition 209<br />In 1996, Californians passed Proposition 209, which amended the state’s constitution to eliminate affirmative action programs in the operation of public employment, public education, or public contracting. 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. <br />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. 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.” <br />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. For proponents, Prop 209 was neither 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.” 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 classifying and thus means for framing an issue. <br />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 Bakke 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. <br />Stone makes it a point to note that, “All selection criteria are decision rules that include some people and exclude others.” Persuasion in the polis often takes the form 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.<br />Framework and Outline: The ballot initiative as natural tool for legalization<br />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,” 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. <br />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. <br />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 19 is an affirmation of the efficacy of direct democracy in providing an alternative means of access to disaffected groups in society. <br />California and Cannabis<br />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. <br />Marijuana Prohibition in California<br />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. <br />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, 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. 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. 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? <br />The most generally accepted theory for marijuana prohibition takes the form of the “Mexican Hypothesis.” Its first real proponent, David Musto, writes- <br />“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.”<br />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.<br />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. 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.” 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.” 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. <br />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 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. <br />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.”<br />Nationwide marijuana prohibition<br />In the period from 1915 to 1937, some twenty-seven states passed criminal laws against the use of marijuana. 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. However, in this instance, anti-marijuana legislation cannot be fully 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. 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.”<br />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. 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 1930 and their reports from 1931-1934, explicitly deny that there was such a thing as a marijuana problem. <br />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 Act, 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. <br />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.” 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 bureau’s efforts to avoid federal marihuana controls eventually led to its having to embrace them.”<br />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. <br />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. <br />Reefer Madness: From 1913-1973 and the War on Drugs<br />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 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. <br />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.” 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. 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. <br />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.” 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 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.”<br />Danger of Use, 1935-1940Articles regarding marijuana as:DangerousNot so Dangerous20 (95%)1 (5%)<br />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.<br />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.”<br />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 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…” 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.” <br />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 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. <br />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. <br />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)<br />Articles regarding marijuana as:Time periodDangerousNot So DangerousSample Size1964-197619 (43%)25 (57%)44 (100%)1890-196334 (77%)10 (23%)44 (100%)1935-194020 (95%)1 (5%)21 (100%)<br />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. <br />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.” 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. 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. In 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. In 1970, Congress responded by passing the Comprehensive Drug Abuse Prevention and Control Act.<br />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.” The Act placed controlled substances into categories based on medical utility and potential for abuse, delineating different drugs into five different schedules. 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.” The heavy demands of the CSA, in effect produced “an enormously closed regulatory system” and enabled the overseer of that system, the BNDD, to emerge as an extremely powerful administrative agency. <br />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.” Ignoring the report from his own commission, Nixon declared “We need, and I use the word ‘all out war,’ on all fronts” against marijuana. <br />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. <br />“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 unfriendly to cannabis but more so because the people that were making his life difficult, used it.”- History, Cannabis: A Chronic History <br />Direct Democracy: The Policy Process of Marijuana Legalization in CaliforniaIn 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?<br />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. <br />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. <br />Policy Models<br />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” they do so alongside one another and can come together at critical times. 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. <br />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. <br />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. <br />The Initiative Process- The Policy Process of Marijuana Legalization in California<br />The Problem Stream <br />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. Kingdon tells us that one of the most common of the routine monitoring activities is following the patterns of federal expenditures and budgetary impacts. <br />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. 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.” 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. <br />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 the public “to see them as total human beings, not merely drug users.” 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.” <br />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.” <br />