Attorney General Jeff Sessions’s decision last week to allow federal prosecutors to go after marijuana businesses in places where pot is legal under state law might have alarmed some observers, but it was hardly surprising. Sessions is an old-school drug warrior who is fairly open about his hatred of weed, so it’s natural that he rescinded the Cole Memo, the Obama-era guidance that told the feds to lay off cannabis merchants in states like Colorado and Washington except in extreme circumstances.
It’s a move that Neal Levine, for one, has been anticipating. Based in Denver, he’s been campaigning for marijuana liberalization since the early days of the George W. Bush administration. But where Levine differs from many marijuana advocates is that he identifies as a libertarian, specifically the type of libertarian who calls taxation “confiscation.” His first political gig was working for the maverick wrestler-turned-governor Jesse Ventura. After nearly 20 years of activism (both paid and unpaid) he now lobbies in Colorado and Washington, DC, for Livwell Enlightened Health, one of Colorado’s biggest weed retailers.
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Despite the GOP’s historic aversion to marijuana, Levine regards legalization as a natural cause for conservatives, so much so that after the election of Donald Trump he teamed with industry grandees to establish the New Federalism Fund, a organization aiming to win the administration over to supporting legalization.
“The social justice component of the marijuana argument—all of which is completely legitimate— has been prominent for some time,” he told me over the phone from Livwell’s headquarters shortly after Sessions’s announcement. “By contrast, the New Federalism Fund was set up to talk to the right, from the right, using the language of the right.”
The NFF wants to win over the right by appealing to one of its most deeply held philosophical principles: that states should be free to set their own destinies with limited interference from the federal government.
But while states’ rights has long been a popular rallying call for conservatives, it’s become apparent in the Trump era that not everyone on the right believes that states should really have all that much leeway, with the administration trying to crack down on “sanctuary cities” that don’t assist the feds’ efforts to deport undocumented immigrants. But that hasn’t stopped Levine from appealing to legislators in an effort to get them to leave states alone when it comes to marijuana.
“Our view is that states should be the laboratories of democracy,” Levine said. “The authors of the Constitution intended that states should be free to pursue their own social and policy changes, when the impact is limited within their own political territory.
“Federalism is always challenged on the difficult things; not those easy issues where there is broad consensus,” he said. “Marijuana represents the ideal opportunity for the administration to reaffirm its commitment to the principle that states should have the power to decide.”
But the NFF’s argument goes beyond constitutional theory: Convinced it can build traction with the White House, the NFF has deployed Trumpian language in its promo materials, calling on the administration to promote “American prosperity” and back “American job creators.”
On Capitol Hill, the NFF has called on conservative lawmakers to strip away a bit of IRS code that leaves legitimate marijuana businesses paying eye-watering amounts in taxes. Known as 280E, this line of tax code was created in the early 80s in response to an audacious attempt by drug cartels to profit from corporate tax rules. Today, 280E prevents any company from deducting business expenses connected to federally prohibited substances like marijuana. The end result is that many marijuana businesses are paying tax rates north of 70 percent.
“We aren’t asking for special favors,” Levine said. “Marijuana businesses just want to be treated like everyone else. People assume we’re swimming in money. What they don’t realize is that if you’re in the cannabis business the government is helping itself to pretty much everything that you’re taking.”
Last year, 15 House Republicans pledged their support for a new initiative to deliver “tax parity” by overruling the hated 280E (that’s three times the number of Republicans who supported a similar bill in 2015). And there are other signs of conservatives willing to rethink their traditional opposition. Last week, several prominent Republicans—largely those representing weed-friendly states—publicly criticized Sessions’s anti-weed move, among them Colorado Republican Senator Cory Gardner, who opposed legalization in his state but is now leading the charge against the Justice Department’s perceived overreach.
Although these moves might make headlines, the fact remains that the vast majority of Republicans oppose the liberalization of weed. The Rohrabacher–Farr Amendment—a bipartisan measure intended to stop federal agencies interfering with states’ medical marijuana programs—has been consistently opposed by the majority of House Republicans. Likewise, voting data from the National Organization for the Reform of Marijuana Laws (NORML) shows that Senate Republicans typically take a much tougher stance on marijuana than their Democrat counterparts.
Among rank-and-file party members, the picture is slightly more nuanced. Although still significantly more skeptical than Democrats, polling data has shown growing support from Republican voters for marijuana liberalization (with some polls even showing narrow majority support), particularly among younger voters.
One of those younger voters is John Baucum. Based in deep-red Texas, he serves as political director of Republicans Against Marijuana Prohibition. In 2015, he pressed Ted Cruz on his marijuana position, calling on the Texas senator to reiterate his support for states’ rights.
Having walked in Republican and marijuana circles, Baucum knows more than most how rarely the two positions go together. Nevertheless, he insists that things are slowly changing.
“It used to be that if you were looking to move up professionally within the GOP —or perhaps even stand as a candidate yourself—you had to stay away from controversial topics like marijuana reform,” Baucum told me from Houston. “The emergence of libertarian figures like Rand Paul – and the more populist approach taken by Trump—has made it easier for people who support less state interference with marijuana usage.”
“Texas is a conservative state,” he went on. “But over three-quarters of young Republican activists told us they supported some degree of marijuana reform. That might not mean full legalization—it could mean decriminalization or the use of civil penalties—but it shows the progress we are making the case with conservatives.”
Sessions’s move doesn’t mean there will be a wave of arrests targeting legal pot dealers, but sellers are nervous. Many fear that mixed signals from Washington may lead to nervousness among banks (who have only recently opened up their services to marijuana merchants), taking the industry back to the dark era of cash-only payments.
In Colorado, most of the big distributors remember the days of having to pay staff and suppliers in brown envelopes, not to mention having to find safe storage for the thousands in cash crossing their counters each day. That isn’t just a major business inconvenience: Having that much cash in transit is a huge public safety issue.
“The New Federalism Fund is happy to keep talking to one member of congress at a time, until they realize this industry is here to stay,” said Levine. “We will keep telling our story to the federal government and make clear that any clampdown could undermine public safety and damage the economies of multiple states.”
For cannabis campaigners from both the right and left, the ultimate goal of federally legal weed may seem especially distant right now. But if anti-cannabis laws finally do fall, it’ll likely be because at least some Republicans favor legalization. If nothing else, multibillion-dollar industries have a knack for getting their way.
Robert Jackman is a writer interested in personal freedoms—however strange or provocative—in today’s America.
