Looking To Legalize In The Buckeye State

Should marijuana — growing, selling, and consuming — be legalized in Ohio?  A number of different groups and legalization advocates are pushing to put the issue before voters in the Buckeye State, perhaps as early as this fall.

In fact, there are several apparently well-funded efforts pursuing different proposals that vary in material ways — a sign, perhaps, that legalized marijuana is now a big business, but also a source of confusion.  One proposal wants to permit cultivation and use of medical marijuana, as 23 states have done; others want to move directly to making Ohio the fifth state, after Colorado, Oregon, Washington, and Alaska, to fully legalize cannabis.  There are other differences as well, on issues such who can grow the crop and where, how much people can possess, and whether revenues from taxes on marijuana would be dedicated to fund pension plans, fix roads and bridges, or used for other purposes.

The bigger question, of course, is whether Ohioans are ready to move toward legalization.  Ohio has never been the leader in new initiatives that move sharply in any direction on the political or social spectrum; it didn’t legalize casino gambling until it was surrounded by states that had done so — and even then only in the throes of the Great Recession when casino gambling promised to deliver desperately needed jobs.  The Buckeye State has long been a place of moderation, where political disagreements don’t get nasty and common sense prevails, which is why Ohio is always a crucial swing state when presidential elections roll around.

I doubt that Ohio voters are ready to legalize marijuana right now.  I expect opponents to make the argument that the Buckeye State should take a wait-and-see approach.  Let the states that have gone the full-scale legalization route be the laboratories of democracy, and let Ohio sit back until the evidence is clearer on what it all means in terms of overall use, drug addiction, crime, job creation, tax revenues, pot tourism, and the other areas that might be affected by legalization.  What’s the rush?  With the bump in employment and tax revenues delivered by the Utica Shale development efforts in eastern Ohio, opponents might argue, it’s not like Ohio needs to be out front on the issue.

On the other hand, Ohio’s status as a bellwether state presumably makes it a tantalizing prospect for legalization advocates.  If moderate, level-headed Ohioans can be convinced to amend their state constitution to legalize marijuana, that would certainly tell you something about the overall national mood on the issue.

Referendum Fatigue

If you eat enough turkey over the holidays you can get a condition called “turkey fatigue.”  In Ohio, I’m working on a serious case of referendum fatigue.

In November, Ohioans will vote on three “issues.”  I’ve written about Issue 2; UJ has discussed his position on the issues here.  Ohio Democrats, miffed about how majority Republicans drew congressional districts, also want a referendum on that law.  An anti-abortion group wants to amend the Ohio Constitution to define “personhood.”  In recent elections, the Constitution has been amended on several occasions, including to allow casino gambling.  It’s getting so that you can’t walk to the library without someone asking you to sign a petition for another statewide vote.

In Ohio, it’s not hard to get an issue on the ballot.  For a referendum — an action to challenge a new law — you need an initial petition signed by 1,000 registered voters and then a petition signed by six percent of the total vote cast for governor in the last election, with signatures obtained from 44 of the 88 Ohio counties that equal three percent of the votes cast for governor from those counties.  The Columbus Dispatch, in a story about the “Personhood Amendment,” said 385,000 signatures would be needed to put it on the ballot.   That sounds like a lot, but it is only a small fraction of the 11.5 million people who live in the Buckeye State, and is not a huge challenge for a well-funded, single-issue organization.

That’s exactly why the increasing resort to referendums is a bad thing.  In Ohio, government is not decided by direct votes of citizens; we elect representatives who are supposed to study the issues, take testimony, and reach considered decisions.  The referendum process means that the losing side on any legislative battle need only convince a small percentage of Ohioans to sign a petition, and the duly enacted law will be delayed until the election is held.

That result raises issues for both Republicans and Democrats, because Ohio is a swing state.  If Democrats use the referendum process now, Republicans surely will do so when they are out of power.   The elections impose costs and lead to the kind of over-the-top dialogue we are seeing now with Issue 2.  On the complex issues confronting a diverse state like Ohio — where multiple constituencies and repercussions must be weighed — having decisions made by voters who are informed primarily by alarmist 30-second TV ads just isn’t good policy.

Constitutions And Casinos

I’ve previously noted my opposition to Issue 3, which would amend the Ohio Constitution to allow casinos to be built in four Ohio cities. One reason for my opposition is that I think the Ohio Constitution should be a constitution, not a statute or a detailed laundry list.  In my view, constitutions should establish broad approaches, goals, aspirations, and prohibitions, and leave the minutiae to be filled in by future legislatures and executives.  The federal Constitution is a good example.  Constitutional provisions like the Supremacy Clause and the Commerce Clause leave lots of room for interpretation.  A good constitution provides a framework that describes how the process of government should work, yet is flexible enough to deal with changing technologies and concepts.  It is the difference between a document that says that the legislature has the power to levy taxes and one that says that all horses used for commercial purposes will be taxed at one ha’penny per biennium.  The former approach has helped to guide more than 200 years of constitutional democracy; the latter would need to be amended repeatedly. 

If you read the text of Issue 3 — and it is available, in PDF format, on the website of the Ohio Ballot Board under the heading Issue 3 — you will see that it is inconsistent with the foregoing notion of what a constitution should be.  Indeed, Issue 3 is extraordinarily detailed.  It is more than five pages long.  It specifies which taxes can be levied on the casinos, at what percentage, and how the funds generated by those taxes will be distributed.  It states the license fee to be charged and how the proceeds of the license fee are to be used.  It specifies that one (and one) casino may be created in each of Cleveland, Cincinnati, Columbus, and Toledo, and it even specifies the particular properties, identified by their individual tax parcel numbers, on which the four casinos may be developed.

In my view, therefore, Issue 3 is not a constitutional amendment.  A real constitutional amendment on the topic might state, for example, that casino gambling is legal in Ohio and is subject to regulation and taxation by the General Assembly, with the proceeds of such taxes and regulations being distributed as directed by the General Assembly.  Issue 3, in contrast, is legislation that is being offered as a constitutional amendment only because, if it is incorporated into the Ohio Constitution, it could not be overridden by the Ohio General Assembly and could only be modified by another constitutional amendment.

I don’t think casino gambling is a good idea as a matter of social policy, but I also am opposed to junking up the Ohio Constitution with a bunch of detailed regulatory language that could soon be outdated and anachronistic.  I’m against Issue 3 for that reason as well.