Democracy is a 2 x 4… time to get high

Nothing is certain in American politics, but New Jersey seems to have a few sure things.  Cory Booker is going to win.  Joe Biden will have a good night in New Jersey.  Marijuana will be legal.  A recent Fairleigh Dickinson Poll indicates that voters will approve New Jersey Public Question One by 2 to 1.  Support for the proposed legalization amendment among likely voters is above 60% in all regions of New Jersey. It is above 50% (barely) across every likely voter demographic.  Looks like everybody just wants to get high.

It is worth noting that this is the first time in U.S. History that a legislature gave the decision to legalize marijuana to the people. In most states, the people forced the issues through the initiative process.  In other states, legalization came through a legislative process with support of the governor.  But I am sure that in those states the same party controlled the legislature and governor’s mansion. Wait.. what.. Never mind.

A by-product of going this route is that the details of legalization are largely absent. In other states, the initiative or legislative crucible resulted in specific rules and guidelines for legalization.  In New Jersey the constitutional amendment allowing legalization basically says “It is legal. You have to be 21. Sales tax only (sort of). The CRC will tell you how.”

What the heck is the CRC?

Cannabis Regulatory Commission (CRC):  The CRC will be New Jersey’s regulatory body over most things cannabis.  It will issue licenses, shape how the new industry works, perhaps even subpoena and investigate criminal activity.  People have likened it to the Casino Control Commission which oversaw the reformulation of Atlantic City in the 1970s and 1980s.  Maybe someday Bruce Springsteen will re-write his song, “the Cannabis Regulatory Commission is hanging on by the skin of its teeth.”

Right before Covid-19 hit, Senate President Steve Sweeney made his appointment to the CRC (social worker Krista Nash).  That leaves 4 other spots.  Three of them appointed by the Governor and 1 by Assembly Speaker Craig Coughlin.  In addition, the Governor will appoint an executive director, with legislative consent.

I understand that there is time before the pot become legal in January of 2021.  However, who gets these slots will dictate how the industry grows and what legalization means.  Will the appointees come to legalization from a social justice perspective?  If so, expect them to come hard and first with plans for criminal record expungement perhaps even compensation for those convicted of low-level offenses. Will economic development be targeted towards communities hit hardest by illegal marijuana sales? Or will economic development be location blind?  Depends on who gets appointed to the CRC.

All these decisions will be guided by the executive director of the CRC.  This gubernatorial appointee will be largely responsible for fashioning the specific regulatory language and framework to meet the vision of the CRC board.  Legalization can mean lots of different things.  When California first “legalized” medical marijuana in 1996, the lack of restrictions and oversight led to a gold rush where anyone breathing could open up a shop and anyone with a headache could buy a truckload.  California has since stepped up regulatory requirements for medical and recreational cannabis and it appears it is once again possible to walk down the beach without getting a contact high.  My point is simply that the CRC matters because it has the capacity and mandate to organize and shape the way we do legalization in New Jersey.

Local Taxes

Under the amendment cannabis is subject to state sales tax, but no other taxes… EXCEPT ….local taxes. Those can be up to 2% of sales.  Welcome to New Jersey Game of Thrones edition.  It is pretty likely that eventually every municipality will adopt the 2% local tax. But how we get there will be a lot of fun to watch. Someone has to go first.  What municipality will pass the local tax first?  Then who holds out the longest without the additional tax?  For example, large cities (New Brunswick or Newark) might pass it immediately but smaller neighboring municipalities (Franklin and South Orange) might hold off and see if they can attract a vendor or two before raising the tax.  In the short term, this differential tax rate game might shape the landscape of sales.

But in the long term?  The two percent surcharge will be everywhere.

Democracy is a two-by-four

In a nutshell, I would suggest that the entire episode of cannabis legalization shows us that voting is a blunt but highly effective weapon.  Here is why.  Everyone in the state’s leadership wanted and thought that legalization was a slam dunk.  It wasn’t.  A series of nuances and details kept tripping up the outcome everyone wanted.  Some suburban democrats said no because they feared soccer moms.  Some progressive democrats said no because it didn’t include enough get out of jail free cards.  Some other democrats just wanted a bigger piece of the pie.  In the legislature, each of these groups wielded power like a scalpel and prevented a legislative solution.

So our legislators decided to get rid of the scalpels and go with the bludgeon.  The vote.  Voting is not subtle and not strategic.  It is yes or no.  You can’t vote yes for legalization, but only if it is sold someplace else.  You can’t vote yes but only if it expunges every remotely marijuana related conviction.  You can’t vote yes, but only if your team gets the contracts.   All you can do is vote yes or no.

This is an important lesson about the vote.  We all want the perfect candidate.  The one who is 100% aligned with everything you agree with.  While Joe Biden has passionate supporters we often hear; yes but.  Yes, Joe Biden but I wish he hadn’t done the 1994 crime bill.  Yes Joe Biden, but only if he promises to pack the court, get rid of college debt, give me free healthcare, stand up for Israel more.  Yes but…

While admittedly they seem to be dwindling by the day, many of President Trump’s supporter do not suffer from the Yes…Buts.  Many Trump supporters stop at “yes,” Whatever he says or does is a yes.  When Trump supporters have a Yes… But, it is that he was a nicer guy, didn’t lie as much, or didn’t talk about grabbing women.  On his policy choices, they are more often Yes. Period.

Yes, marijuana is going to be legal in New Jersey.  Yes, Joe Biden is going to win New Jersey.  But never underestimate the potential bluntness of the vote.  If you are thinking about staying home because it doesn’t matter in New Jersey or Biden isn’t quite perfect enough for you, please don’t. Trump has a sizeable base that doesn’t care about nuance and isn’t going to take the scalpel approach.  They are taking the club to all things voting. If you don’t show up. They will and they win.

Plus voting is the only way weed will be legal in New Jersey and if it fails consoling the Legislature will require lots of tissues and hugs. No one wants that.

Matthew Hale is professor of political science at Seton Hall University.