Knock conservatives

Could Legal Marijuana Tip the Senate for Democrats?

Cautious incumbents are using it to shore up support from progressive voters and challengers are seizing on the issue’s high popularity to knock conservatives.

By JAMES HIGDON

When Senator Bill Nelson came out squarely in favor of Floridians’ right to smoke medical marijuana, it surprised many political observers in the Sunshine State. Nelson, a conservative Democrat who promotes his reputation as a ramrod former astronaut, has mostly kept out of the fray during the years-long battle over medical marijuana—both before it passed in 2016 with 71 percent of the vote and in the year and half since, as supporters have battled the state’s Republican leadership over how to implement the new law. “It’s just not in Bill’s constitution,” one marijuana advocate and former Nelson staffer had told me just the day before the senator’s big reveal.

But the timing of Nelson’s endorsement—as quintessentially stiff as it sounded: “I support, and have with my vote, medical marijuana recommended by a physician”—perhaps should not have been so surprising. Less than a week earlier, a judge ruled the state’s ban on smokable medical marijuana was unconstitutional. Governor Rick Scott, who is running to unseat Nelson in November, quickly appealed the judge’s ruling, placing him on the opposite side of 6.5 million Florida voters, 1.9 million more than had voted for President Donald Trump. Even Republicans in Florida saw the potential advantage that this could give Nelson.

“Any politician who thinks they can alienate over two-thirds of the voting public and win, is kidding themselves,” Stephani Scruggs Bowen told me. She’s the wife of Michael Bowen, who uses medical marijuana to treat his epilepsy and was one of the plaintiffs who sued to overturn the legislature’s ban on smokable marijuana. Stephani Bowen served as Trump’s Florida director of field operations in 2016. “Rick Scott has been a great governor, but if he wants to beat Bill Nelson, he needs to obey the Constitution … and stop trying to get in between a doctor and his or her patients.”

So in late May, Nelson, perhaps thinking about two recent polls that had for the first time showed his supremely well-funded opponent in the lead, tried to put some daylight between himself and the governor.

“I think what it means is how far along this issue has evolved just over the last couple of years,” said Ben Pollara, a Democratic strategist who has worked for Nelson on his last two campaigns and served as campaign manager for the medical marijuana initiative since 2014. “It’s gotten to a point where somebody on the moderate-conservative end of the Democratic spectrum like Bill Nelson is not just coming out for medical marijuana but getting involved in a political fight and saying people ought to be able to smoke this stuff. It is no longer an issue with political downside; it’s an issue with almost entirely political upside.”

That’s a calculation that is playing out in a handful of tight Senate races this year, where an issue that has 68 percent support nationally offers a way for cautious moderates in red states—Democratic Senators Claire McCaskill in Missouri and Heidi Heitkamp in North Dakota, for example, both of whom could share the ballot with marijuana initiatives in November—to shore up support from the liberal wing of their party. In states like Nevada, where marijuana is already fully legal, it gives Democratic challengers like Jacky Rosen a ready coalition of bipartisan supporters.

Anti-marijuana activists scoff at the notion that legal cannabis mobilizes voters. “I highly doubt marijuana is going to be a determinative factor for enough voters to change an election,” Kevin Sabet, the founder of anti-legalization group Smart Approaches to Marijuana, told me by telephone from his new office in Manhattan. “And really, it’s a minority of people, like a big minority of people. … I’ve never seen marijuana swing any kind of election. It’s such a low priority vote.” Indeed, marijuana does not rank among Gallup’s “most important problem[s] facing the country today” as of May 2018.

But those who back legalization measures say the continuing and vocal hostility of Attorney General Jeff Sessions toward marijuana, despite its popularity among groups as varied as military veterans and parents with sick children, not to mention its surging economic impact, provides all the motivation that they need to bring their constituency to the polls.

“I don’t believe [Sabet]. It does, in fact, motivate voters,” Rep. Earl Blumenauer, founding member of the Congressional Cannabis Caucus, told me. “You look at Conor Lamb’s election in Pennsylvania. Conor was very supportive of medical marijuana, and it didn’t have to influence very many people to be the margin in a district that was decided by fewer than 1,000 votes.” He also pointed to Alexandria Ocasio-Cortez’s shocking upset of Rep. Joe Crowley in New York. “She embraced this issue and ran on it; she beat this drum loudly. I’m convinced that contributed to some of the energy and the brand that she’s developing. And you’re going to see more. … In a close race, [marijuana] could absolutely determine the outcome.”

Stephani Bowen, arguing from the opposite side of the political divide, agrees with the Oregon congressman. “It absolutely will [tip a race] in states where it's on the ballot as medical marijuana because every family knows someone: whether it’s a cancer patient, or a dementia patient, a veteran struggling with [traumatic brain injury], or an epileptic patient—everybody knows someone who needs medical marijuana, and they’re desperate to get them the help they deserve.”

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Not every state is Florida, where the issue has remained front of mind for years thanks to a combative and deep-pocketed campaign led by a wealthy and very vocal trial attorney named John Morgan. Morgan has almost single-handedly propelled legalization across the line in Florida and has kept the fight going when the state legislature backpedaled on how to implement the new constitutional amendment.

In West Virginia, where voters went harder for Trump than in any state except Wyoming, Senator Joe Manchin has struggled to find his voice on the issue. Facing a stern challenge from state Attorney General Patrick Morrisey, Manchin has been wary of creating unnecessary separation from the policies of the Trump administration despite his state’s legislature passing a medical marijuana bill in 2017. In fact, it’s the author of that bill, state Senator Richard Ojeda, who has shown how to use medical marijuana as an effective campaign issue; Ojeda, a Democrat, is now leading in his bid for West Virginia’s 3rd Congressional District seat, in part because of the appeal to veterans and injured blue-collar workers of medical marijuana as an alternative to highly addictive opioids that have ravaged the state. “Richie’s going to win, and he doesn’t do anything quietly,” Blumenauer told me. “Manchin ignores this at his peril.”

Morgan expressed some sympathy for Manchin’s position: “Politicians like Joe Manchin, they’ve got to walk a political tightrope. He’s in a state that Trump won by 40 points. So I give those types of politicians a pass.” Morgan compared the marijuana politics to same-sex marriage, and how politicians were the last ones to the party: “Obama was not for same-sex marriage, Hillary Clinton wasn’t for same-sex marriage. And then all of a sudden, one day they were. And you’re like, ‘When did that happen?’ And that’s what’s going to happen here with marijuana. Claire McCaskill will put her toe in the water, and then later you’ll hear, ‘Well, I was always for it!’ And we will be like, ‘Well, no you weren’t, but we’re glad you are now.’”

McCaskill has indeed stuck her toe in the water, but maybe just a toe. When I asked for her current position on marijuana, her campaign referred me to her two-sentence comment in January: “I support medical marijuana in Missouri. I think it’s the right way to go,” she said on KMOV, the St. Louis CBS television affiliate. Her opponent, Missouri Attorney General Josh Hawley, has mentioned marijuana even less than she has. His campaign did not respond to two requests for comment.

McCaskill and Hawley will share the ballot in November with a voter referendum to legalize medical marijuana, yet neither candidate’s website mentions the word “marijuana,” even as McCaskill struggles to connect with black voters, who tend to support legalization in higher numbers than other racial groups. A poll in Missouri conducted by PPP in July 2016 showed that 62 percent of registered voters said they would vote yes on a ballot issue that would legalize marijuana for medical purposes, including 44 percent of Republicans.

Blumenauer told me he believes that medical marijuana “just might be the margin of victory for Claire McCaskill. She will benefit from it being on the ballot. That just drives particularly young people to vote. But as we move closer to Election Day, I make a prediction that Claire becomes more and more comfortable and probably outspoken—especially when it comes to medical marijuana and veterans.”

In North Dakota, where Trump won by 35.8 points in 2016, voters this November will likely decide on their second marijuana initiative in two years, this time on the question of full legalization. A poll by the Kitchens Group showed that full legalization does not have the same level of support as medical marijuana, which won nearly 64 percent of the vote in 2016. Forty-six percent of North Dakotans favor allowing recreational use, with 39 percent against and 15 percent undecided. For now, Heitkamp is fighting a tough reelection race against Congressman Kevin Cramer, who has modest pro-marijuana bona fides: He voted in favor of Rohrabacher-Farr (an amendment that protected state-legal programs from federal interference) and co-sponsored the Hemp Farming Act. Both Heitkamp and Cramer frame the issue as a matter of states’ rights. Heitkamp, though, will actually talk about marijuana with a reporter (Cramer declined two requests for comment).

The Heitkamp campaign told me that she was the better candidate for marijuana voters in North Dakota because “on this issue, Senator Heitkamp has not only spoken out about it and urged the AG to respect the will of ND voters, but she also voted against Jeff Sessions when he was nominated to be Attorney General.”

When asked whether Sen. Heitkamp would support the recreational legal marijuana ballot initiative should it get on the ballot, her Senate office said in part, “Senator Heitkamp believes that these types of decisions are best left to the states and their citizens—and once made, that state laws should be protected.”

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The reluctance to seize the issue may have something to do with a lack of party leadership. When asked for a comment for this story, the Democratic Senatorial Campaign Committee offered a terse statement: “It's another example of GOP candidates aligning themselves with Washington ahead of the voters in their states—and that's a problem for their campaigns.” The problem for the DSCC is that, much like Claire McCaskill’s campaign website, the organization tasked with getting Democrats elected to the Senate is still afraid to use the word “marijuana.” That discomfort extends down to the campaign level as well, says Pollara.

“The natural tendency of consultants [is] to try and fit 30-second ads into as broad a box of poll-tested messages as possible,” Pollara told me. “Every media consultant knows how to do a health care ad, jobs ad, climate change ad … [but] marijuana requires a level of public opinion research to do right that simply doesn’t fit into the standard polling and focus grouping that candidates do. … There’s no readily available research like there is on health care, jobs, etc., to say ‘OK, marijuana polls well, and here’s how to message it so it moves votes for a candidate.’”

Blumenauer agreed: “The people who handle politicians—campaign managers, consultants, pollsters—they’re risk-averse. It’s a new issue and they don’t think they have to deal with it, and it’s just stupid.”

In Nevada, where voters legalized recreational marijuana with 54.5 percent of the vote (it received 90,405 more votes than Trump), no one needs to tell Rosen what to say. She knows that her opponent, Republican Senator Dean Heller, is not a fan of the issue, and she’s eager to remind voters.

Rosen supported the legalization effort, and she co-sponsored a number of pro-marijuana bills in Congress, including the House version of the Strengthening the Tenth Amendment Through Entrusting States Act—or STATES Act—which would reverse Sessions’ repeal of the Cole Memo and make it permanent law that the federal government couldn’t interfere with state-legal marijuana programs. In May, she made a campaign stop at a legal Las Vegas dispensary to meet with workers there.

“Senator Heller’s record has put him on the wrong side of this issue,” a Rosen campaign spokesperson told me. “From his vote to confirm Jeff Sessions as attorney general to his refusal to take action protecting Nevada’s marijuana industry from the threat of federal intervention, it’s clear that Senator Heller puts his loyalty to Washington Republicans ahead of what’s best for Nevada workers and business owners. While Jacky Rosen is fighting for bipartisan bills to protect our marijuana industry and defend the will of Nevada voters, Senator Heller has been cowering in silence on the sidelines.”

Heller opposed the ballot measure that legalized recreational marijuana; he voted to confirm Sessions as attorney general; he refused to criticize Sessions after Sessions repealed the Cole Memo, the document that instructed Department of Justice officials to avoid making marijuana cases in states where the drug had been legalized; and he hasn’t responded well to the press on this subject. When asked for a statement on his current position on marijuana for this story, a Heller spokesman told POLITICO Magazine: “While Senator Heller is personally opposed to recreational marijuana, he respects the will of Nevada voters and the outcome of the 2016 ballot initiative. He has worked closely with Senator Gardner [a co-sponsor of the STATES Act] and a group of bipartisan senators to ensure the rights of states like Nevada are protected.”

Despite his statement of solidarity with Gardner, Heller is not currently a co-sponsor of the STATES Act, although Nevada’s junior senator, Catherine Cortez Masto, a Democrat, is a co-sponsor.

Tick Segerblom, the Nevada state senator who led the legalization campaign, told me the Nevada Senate race could be the most clear-cut example yet of marijuana voters deciding a statewide election. “Nevada could be the classic case because it could come down to 1 percent, and clearly marijuana is an issue here. Jacky Rosen is perceived by the marijuana community as very strong and supporting, while Dean Heller has consistently been opposed to marijuana. … There’s a lot of people here who are single-issue voters. The industry’s got 5,000 employees, and trust me, every marijuana employer is going to be telling their employees, ‘You’ve got to vote for Rosen.’ The funny part is, at least in Nevada, the industry is owned by Republicans. The people who work there are not, but the money behind it is all Republican.”