Drug test: polling Congress about medical marijuana.

Last fall, when voters in Arizona and California passed ballot initiatives allowing doctors to prescribe currently illegal drugs, it seemed like one small step for a more humane drug policy. (See "Prescription: Drugs," February.) But in the wake of fierce - and continuing - denunciations by representatives of the federal government, the implications of the initiatives keep getting broader and broader. They raise, most notably, serious issues of federalism. Contravening federal drug laws, Arizona's Prop. 200 and California's Prop. 215 implicitly assert that drug policy is the province of state governments. That assertion provides a potential model for devolution of power in all sorts of policy areas.

In January, REASON polled the U.S. congressional delegations of Arizona and California to gauge their reactions to the initiatives - and to the Clinton administration's repeated threats to prosecute doctors and patients who exercise their rights under the new laws. Senators and representatives in the two states occupy an interesting middle ground in the debate for several reasons: Though part of the federal government, they represent the same voters who supported the state-level initiatives; while many members of Congress openly favor "devolving" power to the states, they rarely discuss drug policy in such a context; and the old liberal/conservative split is no longer a significant predictor when it comes to prosecuting the drug war.

We asked the states' four senators and 58 representatives the following questions:

1) Do you support the Clinton administration's threats to crack down on physicians and other citizens of your state who exercise their rights under Prop. 200 (Ariz.) or Prop. 215 (Calif.)?

2) Opponents of the measures such as drug czar Barry McCaffrey and Arizona Sen. Jon Kyl have claimed that voters were "asleep at the switch" and "hoodwinked." Do you think voters of your state were incompetent in passing this law?

3) Do you believe that physicians who prescribe or recommend marijuana to relieve a specific medical condition should be subject to criminal prosecution?

The aggregate results of our survey are reported in the chart; a full listing is available on Reason Online (www.reasonmag.com). Because politicians typically employ the specificity of psychics and rarely give simple, meaningful yes-or-no replies, we inferred their answers based on the overall content of their responses.

One of the most interesting results was also one of the most predictable: an unwillingness to discuss the topic at all. Out of 62 possible responses, 36 members refused to comment on the matter. Several congressional staffers expressed surprise and relief that the initiatives had not played a larger role during the last campaign. As Will Dwyer, a spokesman for Rep. George Radanovich (R-Calif.), explained with a laugh, "I don't think we took a position on it. We took a position for re-election." In a slightly different but popular vein, a staffer for Rep. Howard Berman (D-Calif.), said the congressman had "decided not to get involved" in the Prop. 215 imbroglio. Even Rep. Ed Royce (R-Calif.), a Reason Foundation donor, did not respond to repeated requests for an interview.

Many of the 26 senators and representatives who did respond seemed uncomfortable with the topic and unwilling to speak plainly about their positions. A notable exception was Rep. Bob Stump (R-Ariz.). Stump, who has little use for the Clinton administration in general, said he is "adamantly opposed to Prop. 200" and fully supports federal efforts to prosecute patients and doctors who use or prescribe marijuana and other substances banned in federal law. As to whether Arizonans acted incompetently in passing Prop. 200, Stump replied in the affirmative, explaining, "The opening paragraph of the ballot initiative argument - which is all most people read - had a very misleading statement. People thought they were making it tougher on drug criminals. I don't think the voters knew what they were voting on."

On the other hand, a number of respondents signaled relatively uncomplicated opposition to the federal response. Rep. Chris Cox (R-Calif.) said, "I don't support the prosecution of physicians who prescribe marijuana for specific medical conditions." A spokeswoman for Rep. Fortney "Pete" Stark (D-Calif.) told us the congressman supports Prop. 215 "definitely" and considers it a "genuine step toward relieving suffering." Rep. Ronald Dellums (D-Calif.), usually no great fan of decentralized government, has written the president urging a different response; Dellums, says a spokesman, believes this is an issue in which the "states have jurisdiction."

Such candor was rare. Interestingly, though, the responses show that even ostensible supporters of the Clinton administration policy were uneasy with publicly pledging their allegiance to this particular drug war battle - and it is certainly worth noting that the congressional delegations disagreed with the Clinton line by an almost two-to-one margin. A spokesman for Rep. Howard "Buck" McKeon (R-Calif.) simultaneously voiced his boss's support for a get-tough policy and suggested the possibility of revising that policy: McKeon, said Armando Azarloza, sees "no need to liberalize existing laws," but recognizes a need to "understand exactly what illnesses marijuana is good for."

In a written response, Rep. Matt Salmon (R-Ariz.) eschewed giving a yes or no to our first and third questions. "We must find a way to reconcile the wishes of the people of Arizona with our federal efforts to fight the scourge of illegal drugs," said Salmon, who described himself as a "strong proponent of reducing taxes, expanding trade, and promoting free market health care reforms like Medical Savings Accounts." He added, "As long as the medical community does not recognize the efficacy of illegal drugs, it is appropriate to enforce laws against their distribution." This seems to imply that if the medical community does recognize their efficacy, Salmon would sign on to Prop. 200.

Indeed, some members who supported the Clinton administration openly embraced that implication. Speaking for Rep. Frank Riggs (R-Calif.), Beau Phillips cited Riggs's opposition to Prop. 215 and said, "there is no credible medical research [as to] whether marijuana use is legitimate." However, according to Phillips, Riggs would like to see that research conducted, because the "door is not closed to any procedure that would reduce human suffering." When it comes to the specific issue of shackling cancer patients and their doctors, there seems to be little stomach for the sort of total war that has characterized federal drug policy.

When we asked whether voters were "incompetent" to pass the initiatives, we knew few politicians would be so impolitic as to answer with a simple yes. Among opponents of the initiatives, there was a fairly standard tap dance around the offensive word. "The congressman never believes voters are stupid," said a press secretary for Rep. Robert Matsui (D-Calif.). "But we're not sure what kind of awareness of the proposition there was." Along similar lines, a spokesperson for Rep. Matthew Martinez (D-Calif.) claimed "voters were not asleep at the switch, but they were hoodwinked. They let compassion override better judgment." A aide to Sen. Jon Kyl (R-Ariz.), one of the most outspoken opponents of the new laws, even suggested a psychological mechanism to explain continued support for the "misguided" legislation: "Nobody likes to be tricked. So now [voters] are defending their mistake more and more defensively."

Regardless of the voter competency issue, however, most respondents generally embraced the voters' will, even when it differed from a member's predilection. Rep. Sonny Bono (R-Calif.) "voted against Prop. 215 and doesn't believe in the medical marijuana approach," said spokesman Frank Cullen. "But [Bono thinks] it is wrong for the feds to step in." Similarly, a spokesman for Rep. Gary Condit (D-Calif.) said Condit is "opposed to legalizing drugs in any way. But he's a firm believer in states' rights and may oppose the federal efforts to crack down on doctors." The press secretary for Rep. Jim Kolbe (R-Ariz.) said Kolbe was against Prop. 200 and went so far as to suggest, "Perhaps voters didn't fully understand." More important was the second part of his response: "What else is new? To single out [the voters' decision] on this issue is wrong. Rep. Kolbe won't come riding in on a white horse with all the power of Washington behind him. The voters of Arizona have voted, and [the federal government] will have to deal with that in some legal framework that makes sense."

Such reasoning reflects some benefits of the initiative process: the ability to force a discussion of topics politicians would rather leave alone and the ability of citizens to demand accountability of their representatives. Two years ago, the medical marijuana issue was not simply flying below the political radar screen it was grounded. In the wake of Prop. 200 and Prop. 215, even the nation's drug czar is calling for research into a matter that the feds had more or less considered closed. With the passage of new medical marijuana laws in Ohio, Washington, and Massachusetts (see "Pot Pass," p. 21), the federal government may have to completely rethink its position. The conversation provoked by the initiatives may even lead to more-general questions about the costs and benefits of drug policy.

In that broad sense, the initiatives could well become the tails that wagged the big dog in Washington. If that happens, they may ultimately be more responsible for shifting power away from the federal government than any number of Beltway-based visions of a new federalism.

Poll Results

Sixty-two senators and representatives were polled. Twenty-six responded; 36 either had no comment or did not respond.

Question 1: Do you support the Clinton administration's threats to crack down on physicians and other citizens of your state who exercise their rights under Prop. 200 (Ariz.) or Prop. 215 (Calif.)?

Yes: 9 No: 15

Question 2: Opponents of the measures such as drug czar Barry McCaffrey and Arizona Sen. John Kyl have claimed that voters "were asleep at the switch" and "hoodwinked." Do you think voters were incompetent in passing this law?

Yes: 9 No: 16

Question 3: Do you believe that physicians who prescribe or recommend marijuana to relieve a specific medical condition should be subject to criminal prosecution?

Yes: 8 No: 15

Note: Totals do not add up to 26 because some respondents did not answer all questions.

A full report on the poll is available on Reason Online (www.reasonmag.com)

Nick Gillespie ([e-mail]) is a senior editor of REASON. The survey was also conducted by Managing Editor Rick Henderson, Assistant Editor Brian Doherty, and Staff Reporter Ed Carson.