Legalizing Marijuana: How the Citizen’s Initiative Interacts With the Legislature

by Sierra Udland

One of the key features of the legislature “[is] its multiplicity of membership—its plurality of voices.”1 As Rosenthal writes throughout the chapter on the Lives of Legislators in Engines of Democracy: Politics and Policymaking in State Legislatures, legislators are a diverse group.2 Even if they share certain characteristics, each person has lived a different life with different experiences; that is their voice, their contribution.

Committees, or representative groups of these plurality voices, are the supporting structure of state legislatures, acting as investigators of the assigned topic. As a whole, they “appear to be the only way to process the large volume of legislation and yet encourage expertise and specialization. American state legislatures utilize committees because of the need for expertise, the high level of demands for legislative action, and the large volume of bills introduced by legislators.”3 They allow for a fair distribution of the immense amount of work that goes into legislating essentially all policy areas at all times.

In the past there have been many studies conducted on committees with two main approaches, according to Schaffner. The first is the traditional approach, “committees have been viewed as acting independently of their colleagues who do not serve on the committee…”4 The second approach is the role of committees

“as providing information and expertise for the benefit of the entire chamber (Gilligan and Krehbiel 1990; Krehbiel 1991; Maas 1983). In this case, committees are viewed as agents of the chamber, generating expertise in issue areas and reducing information costs for other legislators to produce public policy representative of the chamber as a whole. Committee assignments are used to ensure that committee membership is representative of the chamber (Krehbiel 1991). Through this selection process, the chamber is able to rely on the expertise of their committees because they know that those committees’ preferences are similar to their own.”5

Other researchers agree with this outlook “…a basic purpose of the committee system was to create a division of labor which would facilitate ‘some means of expertise in policy review and legislative oversight.”6 It should be considered that “all legislatures rely upon committees, rather than the full forum, to process legislation. With the introduction of so many proposals in modern times, a full-forum treatment would mean either that most proposals were never considered or that those considered were passed on or rejected with great haste.”7 Committees provide a way for legislators to manage their workload and for non-committee members to be informed on the many issues they will be voting on. Indeed, legislators most frequently considered committees to be important decision-making arenas, “almost two-thirds (1,293 of 2,028) of the respondents ranked regular committee meetings first, second, or third.”8

 

Overview

Representatives in the Oregon House are placed on committees by a process of interest and interview. The House Speaker will converse with representatives individually “to discuss their priorities and interests,”9 and use the information to place the member on a committee. Senate committee members are placed similarly through their leadership, and the two houses meet in conference committee and privately to forge separate policies together into one bill.

There are many types of committees including special, joint, conference and standing committees. Of interest to this paper are joint committees, defined by the legislature’s official procedure manual as “a committee made up of committees appointed by each house.”10 Usually joint committees are on standing issues that the legislature, as a state, is concerned about. This years topics include standing committees on Legislative Counsel, Legislative Administration, Tax Credits, and Ways and Means. The M91 Committee does not meet the standards of a standing committee, but it is structured as a Joint Committee because Measure 91 was the result of a statewide vote.

Like other joint committees, M91 seats five members of the House and five members of the Senate. Both chambers have an appointed Co-Chair who share leadership duties. Other single-chamber committees such as the respective House Judiciary, Rules, and Health Care committees all have only five members. Each House committee in the 2015 Session has one more seated Democrat member than Republican member because the Oregon House currently has a Democratic majority. The M91 Committee follows this approach with 6 Democrats and 4 Republicans.

The Citizen’s Initiative

One thing that makes this committee unique is that it is legislative component to a statewide citizen’s initiative. Oregon was one of the first states to give its citizens the option of a citizen’s initiative, which “gives direct legislative power to the voters to enact new laws, change existing laws, or amend the Oregon Constitution.”11 Voters can do this by gathering a certain percentage of signatures determined by the outcome of the most recent general election. Measure 91 was initiated as a statute rather than a constitutional amendment and so only needed 6% of voter signatures for it to be placed on the ballot. Once on the ballot it was subject to a simple, statewide majority vote. It passed with 55 percent of voters in favor.12

State citizen initiatives “are not new technology or techniques (South Dakota was the first in 1898; Oregon the second in 1902), [but] their use has expanded in recent years to the point where they serve as a powerful alternative to institutional-based political regimes.” Other sources note that 27 “of the states provide for voter-initiated legislation… Voter initiatives give the voters, or perhaps those interest groups who are able to mobilize large groups of voters, a direct say in the making of law.”13 Certainly it has become a tool for marijuana legalization in the states that have passed such laws so far.

According to Representative Helm of Beaverton & Cedar Hills, Measure 91 has been brought before the legislature for review because “some things are too vague, some things were not thought of and so not included, and measure proponents may have guessed in some areas of the law.”14 Sponsors of measures can be any person without the need for special qualification, often a collection of volunteers and professionals from many fields and walks of life. Inevitably some nuances of the law were not thought of during the initial drafting, as citizens are not experienced lawmakers. The intended purpose of the committee is the “need to harmonize the new measure with existing laws.”15 One example given is edibles: these marijuana-potent foods will have to comply with other legal requirements such as packaging regulations from the Food & Drug Administration. The committee is here to bring laws born out of ideas into the technicalities of reality.

Because the law was created by initiative if certain aspects of Measure 91 were ever contested in court the legal language would be regarded in a different light than those laws passed by representatives in the legislature. Some aspects courts would review for a legislative bill include “the wording of the bill, and the context. They look at the sentence and other parts of the statute for clarification. They consider other state laws and the legislative history of the bill– what was happening in committee? And sometimes floor debates, but those are weighted the least.”16

In the case of Measure 91, the courts will not have the option to review the legislative process of the measure because it was not made by legislators, but enacted by popular vote. Because of this the courts will look instead at the “ballot history in public debate and the explanatory statement provided in the voter’s pamphlet.” The voter’s pamphlet statement is provided by the sponsors of the measure as to how to read sections of the measure in the way the writers intended, and therefore what the voters approved.17

 

Two Halves of a Whole

The committee has been focused on two areas throughout the meetings. First is the OMMP– this program was also enacted by the citizen’s initiative process in 1998. The intent of Measure 91 was to complement the program rather than encompass it, having included explicit language to avoid substantially affecting the OMMP. Previous ballot measures to make marijuana legal were defeated mainly over concerns that the proposed measures did not do enough to protect the medical program. Legislators are taking this aspect seriously, inviting medical marijuana growers, caregivers, patients, and laboratories to testify with their opinions and concerns. They have mostly focused on tweaking aspects that will directly coincide with the recreational industry like product safety testing standards, dispensaries potentially operating as a  retail shop, and different rules for medical and for recreational growers.

The second aspect is the actual implementation of the industry when legalization day comes. This is where discussions about the OLCC have been taking place– having already regulated liquor, Oregon voters decided through the measure that having the OLCC regulate the retail marijuana industry would be best. The OLCC will be regulating licensing, taxes, and production with law enforcement authority. They will also be conducting research on driving under the influence of marijuana in collaboration with other state departments by January 1st, 2017.

What the Committee Has Considered

Public hearings are conducted on many of the proposed bills assigned to the committee. This is to ensure citizen’s viewpoints, experiences, and concerns are evident throughout the lawmaking process beyond the point of passing the measure. Anybody may come to testify during public hearings, whether for personal or business reasons. This is a valuable resource for committee members to hear from citizens in all walks of life and of varying expertise. Citizens who voted No on Measure 91 are more than welcome to testify, and those who oppose only certain components are also sure to be heard as long as they attend the meeting.

Many other policy areas have been affected by the measure’s passage and must be considered before the first portions of the law go into effect on July 1st, 2015. Many people and organizations from multiple state departments, interest groups, current participants in the OMMP, Oregon cities & counties and outside experts have been invited to testify before the committee. The committee has also heard testimony from the chief petitioner of the measure, Oregon growers, Oregon laboratories, lawyers, law enforcement personnel, dispensaries, the Oregon Liquor Control Commission, private citizens, business owners, coalitions of Oregon cities and counties, and experts from other legalized states.

Work sessions are meetings where the committee members will speak with testimony panels about certain aspects of the proposed bill or amendment. This allows the testifying groups to state their professional opinion on the legal language or express a preference for a certain policy choice. Lawmakers realize that they are regulating others and not themselves, so the work sessions exist to include the affected citizens when fine-tuning the details. Senate Bill 844, discussed in more detail below, was the subject of more than 6 work sessions. From these sessions the committee has attached more than 26 amendments clarifying, rewriting or scrapping parts of the bill. When a bill has completed its journey through the work session hearings it will be voted on. In a Joint Committee the bill must receive a majority of Yes votes from the House members and also a majority from the Senate members to be passed to the floor for a vote.

The committees at the Legislative Assembly have a few types of meetings they can call throughout the course of the session. These are informational meetings, public hearings, and work sessions. Informational meetings have invited testimony on certain topics from experienced witnesses. The committee has had several informational meetings where the testimony covered a wide range of topics such as: History of Marijuana Legalization in the US, Youth Prevention, Laboratory Regulations, the Oregon Medical Marijuana Program, licensing, taxes and revenue, environmental and land use provisions, law enforcement, and banking services for marijuana businesses.

Oregon wishes to be a shining example for which other states may follow, so they are looking at both Colorado and Washington to discern the best course of action. Vice Co-Chair Senator Prozanski emphasized the importance of other states’ experiences, saying “it has been one year since the measure was written, and things have happened in Washington and Colorado that we should look into.”18 And so they have– Colorado specialists have been invited to testify on aspects of Colorado’s legal marijuana during the public meetings. Sparrow Strategy and the Colorado Department of Public Health’s Injury Prevention unit both weighed in on preventing youth from abusing marijuana. Sparrow Strategy presented an anti-abuse campaign made for and adopted by Colorado while the Dept. of Public Health also made suggestions based on their limited experience. Testimony like this is some of the only information available as marijuana has only been legal for a short time in these states, and it is incredibly valuable so that Oregon may avoid strategies that did not pan out so well.

Another important issue surrounding marijuana legalization is taxes. This important aspect persuaded a few states to initiate legalization as new source of revenue to bolster their budgets. Senator Prozanski of Eugene and surrounding areas emphasized the need to pre-empt locality governments in this area. He, as well as others on the committee, has expressed a need to “keep taxes low so that we can undercut the black market.”19 There is concern that with legalization more people will be inclined to grow and sell the product illegally, bypassing taxes all together and therefore slashing sale prices. Citizens will not be attracted to legal stores if their product costs substantially more than what they could easily obtain off the street for much less.

Opting Out and the Federal Question

One controversial proposal has been Senate Bill 844 with upwards of 26 proposed amendments. One contentious amendment, 844-6, discussed an important legal concern of local opt-out processes. Not all districts in Oregon had a majority of Yes votes for Measure 91. In fact, only 14 counties had a majority of voters who said Yes out of a total of 36. Counties with a majority of No votes had between 51-69 percent of voters opposed.20 Both Colorado and Washington have included local opt-out of legalization in their new laws, so what will Oregon choose?

One side of the debate contends that it would be inappropriate for localities to regulate a law established by a statewide vote. Though more counties had an overall No vote on the measure the criteria for passage was a majority of Yes votes tallied as a whole (see Fig. 1). A few No counties did not even reach 1,000 ballots cast on the measure, while the most highly populated, Multnomah, had 287,000 voters weigh in. Many of the No counties had small vote counts below 10,000 with huge disparities of nearly 70 percent against and 30 percent in favor. Counties who ultimately tallied up as No with more than 10,000 votes cast were more likely to be within 5 percent of having an evenly split electorate.21 These No counties would then be able to opt out with only slightly more voters in agreement.

Another idea in support of the statewide vote is that the measure as passed includes an opt-out provision. Section 60 of the 38 page measure lays out the framework for the option, saying that cities and counties may place an opt-out on the next general election ballot if at least 10 percent of their registered voters sign a petition to do so. After that only a simple majority of votes is needed to enact the opt-out.22 Senator Prozanski says this will ensure that “citizens are the only ones to limit or prohibit the new market by going through the democratic process rather than the alternative of having between 3 and 7 City Council members decide.”23

Co-Chair Representative Lininger says that it’s a matter of “cultural change.” Marijuana legalization is very controversial, and it would be a step backwards to allow cities and counties to opt out at the mercy of the leadership. The ballot measure was written and passed by state residents, which clearly defines what they would like to see. In contrast, “legislators have more special interests approaching them” and different concerns during the making of laws.24

The other side of the debate advanced by some committee members and many city and county representatives is that by barring the localities from opting out at will the state is opening itself up for a lawsuit. Marijuana is still federally illegal, classified as a Schedule I drug by the Drug Enforcement Administration. Measure 91 rescheduled the drug as Schedule IV25 and other legalized states have reclassified their laws also. This interesting dichotomy between the federal and state governments is somewhat of a legal gray area. The US Department of Justice has released a few “Cole memorandums” stating the extent of their flexibility on the matter. The DOJ has asked other attorney generals to prosecute cases only when they go astray from certain principles including sale to minors, massive illegal drug operations, preventing grows on public lands, violence in relation to the industry, diversion of the crop to other states, and instances of public health such as drugged driving. The memo expresses that states must “implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose” to the priorities previously listed. These systems must be laid out on paper but “must also be effective in practice.”26

Marijuana is still mostly illegal, and “if state enforcement efforts are not sufficiently robust to protect against the harms set forth above, the federal government may seek to challenge the regulatory structure itself… including criminal prosecutions, focused on those harms.”27 This is where Oregon localities may be able to challenge the law. Though the initial challenge may be filed with the State at first, it could also be filed in federal district court or be appealed to a federal court where the program would likely be struck down due to illegality at the federal level. Understandably lawmakers do not want this scrutiny from the federal government for their own sake, but it would also jeopardize other states who have taken the legalization plunge.

In Conclusion

More than half of the states have some form of citizen’s initiative. In this case the ballot measure was reviewed by the legislature for implementation purposes, making the M91 Committee a result of direct democracy. The people of Oregon voted to pass Measure 91 and the legislature has been transforming it from an idea smoothly into a new law. The Committee is taking care to fully consider all viewpoints and different aspects in the implementation of this direct mandate from the voters.

Oregon is on the forefront of changing marijuana politics—the state joined three others and the District of Columbia when they voted to legalize marijuana. Legalization is extremely controversial and the result of implementation in Oregon, known already for its great medical marijuana program, will hopefully be the shining example for other states to follow in the future. The Committee has taken care to include viewpoints from those in agreement and the naysayers, from experts and patients in the OMMP, and private citizens. They have spoken with people in Colorado and Washington to see how certain strategies have succeeded or failed. And they have heeded the words of the federal government so that Oregon may be one of the first experiments in this new area.
Endnotes

  1. Briffault, R. (2012). BEYOND CONGRESS: THE STUDY OF STATE AND LOCAL
  2. Rosenthal, Alan. “Lives of Legislators.” In Engines of Democracy: Politics and Policymaking in State Legislatures. Washington, DC: CQ Press, 2009.
  3. LEGISLATURES. Legislation and Public Policy, 7(23), 23-30. Retrieved March 15, 2015, from http://www.nyujlpp.org/wp-content/uploads/2012/10/Richard-A.-Briffault-Beyond-Congress-The-Study-of-State-and-Local-Legislatures.pdf
  4. Francis, W., & Riddlesperger, J. (1982). U. S. State Legislative Committees: Structure, Procedural Efficiency, and Party Control. Legislative Studies Quarterly, 7(4), 453-471.
  5. Schaffner, B. (2007). Political Parties and the Representativeness Of Legislative Committees. Legislative Studies Quarterly, 32(3), 475-497. Retrieved March 15, 2015, from JSTOR.
  6. Asher, H. (1974). Committees and the Norm of Specialization. The Annals of the
  7. American Academy of Political and Social Science, 411, 63-74. Retrieved March 15, 2015, from JSTOR.
  8. Schaffner, Political Parties.
  9. Mason-Gere, J. (2014, December 11). Kotek announces 2015 House committee assignments. Office of the House Speaker. Retrieved March 13, 2014, from https://www.oregonlegislature.gov/kotek/Documents/Dec12PR.pdf
  10. Legislative Committee Services. “Background Brief On… Initiative, Referral, and Referendum Process” (2012) 1-4.
  11. Ibid.
  12. Helm, K. (2015, February 25). General Questions about the Committee On Implementing Measure 91 [Personal interview].
  13. Prozanski, F. (2015, March 18). Questions about the Committee On Implementing Measure 91. [Personal interview].
  14. “2014 Oregon Election Result Maps.” The Oregonian. November 18, 2014. Accessed March 15, 2015.
  15. Ibid.
  16. Lininger
  17. Cole, J. Guidance Regarding Marijuana Enforcement (2013 August 29).
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