State-run? Do the research.

Mar 16, 13 State-run? Do the research.

When the joint select committee of the Colorado House and Senate met for the first time March 15 to devise ways to implement an amendment legalizing recreational marijuana use in this state, it decided to remove from further consideration the idea of a state-run regulatory framework.

Not so fast, say many members of a new Colorado organization, called Smart Colorado (as a matter of full disclosure, Chris Thurstone and I support this group). Smart Colorado is committed to developing marijuana policies that put the public’s interests ahead of the marijuana industry’s — and a state-run regulatory framework is consistent with that mission.

The state committee’s dismissal is premature and especially unfortunate considering two things:

  • Legislators were determining an industry’s regulatory models before conducting hearings on marijuana legalization’s impact on public health and safety. Frankly, regulatory frameworks should have been the committee’s last topic for discussion, debate and decision-making.
  • The committee merely was told the governor’s task force didn’t recommend a state-run system — but I’m not convinced that’s because the task force ever did any serious or meaningful research of the subject.

The governor’s task force did a remarkable job of sorting through the dangerous mess that is Amendment 64. Unfortunately, in many respects, the deeply flawed amendment hamstrings government at every level from addressing what reasonable people already know will be significant — and significantly costly — problems for Colorado. To make matters worse, the amendment imposes ridiculous timelines by which this state must legalize and regulate recreational marijuana — something no other country in the developed Western world has done.

Given the mad rush, there are significant areas of concern that haven’t been adequately studied before decisions have been made — and the question of a regulatory framework is chief among them. Consider this daisy chain:

No one on the governor-appointed task force conducted, or provided, a thorough analysis of a state-run regulatory framework. No. One. Ask the governor’s office if it has done this legwork. If anything, I’m willing to bet it would have welcomed much more information from experts in other states where state-run alcohol sales are the norm. Ask the Colorado Attorney General’s Office if it has truly examined this. Ask the Colorado Department of Revenue. Ask any number of individual lawmakers. The answers — if everyone is being perfectly honest — will be no, no, and a thousand times no.

Never mind that numerous studies have shown a couple of things about monopoly states, which regulate alcohol through various aspects of state control here in the United States. We have 18 monopoly states in this country, and my home state of North Carolina is one of them — so I certainly don’t want to hear from politically conservative legislators in Colorado that this concept is “big government.” I’m also really tired of the insistence that state-run models are relics that just get in the way of “consumer convenience.”

Because, see, reputable research shows two big things:

  • Monopoly states make more money from alcohol sales than do states that collect taxes from a privatized market. This is a very good thing for states because taxpayers are on the hook for all sorts of social costs associated with alcohol abuse. They should stand in line to collect money from alcohol sales long before people who want to put liquor stores on every corner (of every poor neighborhood) and in every grocery store. The Economist explains the issue well through a story published last month on the debate about a state-run regulatory framework in Virginia.
  • Science has shown us that the state-run regulatory framework actually cuts down on social costs to states. One study to review is Hahn et al, 2012. These researchers from the U.S. Centers for Disease Control said there is “strong evidence” to support state-run regulatory frameworks, at least for alcohol, because they provide the greatest mitigation of social costs. That doesn’t mean states like North Carolina don’t have alcohol problems. They absolutely do. But when examined and controlled for several variables, the bottom line is that monopoly states make more money because of their state-owned frameworks, and they tend to pay fewer costs than do states that place an emphasis on “consumer convenience,” and “free markets.”

With science and economic analysis such as this backing him and the concerns for Colorado’s public health and safety so profound, my physician husband asked the governor’s task force to consider this idea seriously. There’s no other way to say this: the task force didn’t do so.

As for other state agencies consulted? We heard one thing overwhelmingly, and it goes something like this: “We are engulfed by this amendment, and what you’re proposing would require too much time to study and justify given everything else we are fighting and trying to figure out right now.”

The task force’s understanding of this issue largely hinged on the opinion of one lawyer — Sam Kamin of the University of Denver, who voted in favor of Amendment 64. Professor Kamin likes to position himself as being neutral on this subject, but you’d be naive to believe that. He told a task force working group that a state-run system was out of the question. He just pronounced it so, so the work group just pronounced it so to the task force (see page 12). And the task force just pronounced it to this select-committee of the Colorado legislature.

It is not “just so” — and there are lawyers who have quietly told us Professor Kamin’s interpretation of the law could be, and should be, challenged. The only justification provided so far is merely that this idea of a state-run regulatory framework is not in keeping with the spirit or text of Amendment 64.

“The spirit and text.” That is seriously soft ground in the legal world.

So far, no one has presented any specific language in the amendment showing exactly why Colorado cannot set up a regulatory framework that it also serves within as an operator.

Then there’s this explanation the work group proffered to the task force (see page 12 again):

As an additional matter, we note that adopting a regulatory model which called for state-run retail stores would raise serious federalism concerns. Under such a model, the state would be actively violating federal law rather than merely licensing others to do so. Such open defiance of the Controlled Substances Act might be seen by the federal government as an intolerable obstacle to the enforcement of federal law and could lead to a suit to enjoin such conduct. A state-run distribution system is thus far more antagonistic to the federal government than one in which the state merely licenses private conduct and should be rejected for that reason as well.

That says a lot, doesn’t it? It’s incredibly troubling that so many state officials find these degrees of separation from compliance with federal law acceptable — and that they believe President Obama and his administration do, too. It’s troubling that every regulatory framework of marijuana they’re considering is outside the bounds of federal law — and that the one regulatory framework that stands to save more lives and public resources is the very one they haven’t found the political will to consider.

And so it goes — unless people continue to ask hard questions of Colorado and federal lawmakers. The stakes here? Very high. It is imperative that we put aside politics and preconceived notions about the roles and responsibilities of government to conduct thoughtful and serious research on a matter of such vital importance to public health and safety.

My husband and I know the legalization of recreational marijuana is a very bad idea for Colorado and our country, but if we must live with it, we want more people to understand the merits of a state-run system. I hope you’ll consider my husband’s observations — and urge your elected leaders to give this regulatory framework the full and fair consideration it deserves.

2 Comments

  1. A state-run model would guarantee that DOJ would be forced to file a civil injunctive lawsuit against Colorado based on specific, articulable violations of the Controlled substances act.

    The State regulatory scheme must be sufficiently “insulated” from the regulated entities, such that state regulators should have NO concern or stake in the entities’ success or failure. If such a “run-of-the mill” regulatory scheme is contstructed, it will be much, much more difficult for DOJ to prevail in any injunctive lawsuit.

    • Thanks for writing, Nate. We appreciate your thoughtfulness.

      My bottom line is this: there is only one regulatory framework (yes, of alcohol) reputable science has shown to lessen harm to public health and safety and generate more revenue for taxpayers — who must pay for harms to public health and safety. That is a state-run, regulatory framework.

      If the federal government isn’t going to enforce federal law, then it’s time for this presidential administration to come clean before the whole world about that — and to work with state lawmakers to do whatever it takes to craft a regulatory framework that stands to spare the most lives.

Leave a Comment

Your email address will not be published. Required fields are marked *

Social Widgets powered by AB-WebLog.com.