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Congress lags behind the states in legalizing Marijuana. Here’s Why.

November 15, 2022

Congress lags behind the states in legalizing marijuana. Here’s Why.

By: Sabrina Clebnik


President Biden’s recent pardoning of all US citizens and residents convicted of simple possession of marijuana has refocused national attention on marijuana legalization. With the medical legalization of marijuana in Mississippi and the recreational legalization of marijuana in Virginia, the “barrier” to legalized marijuana in the South has officially broken, and the rapid expansion of marijuana legalization continues. Currently, 37 historically Republican and Democratic-leaning states have implemented medical or recreational marijuana legalization— yielding a patchwork of laws and regulations across the states.


Even with so many states acting, experts argue that federal action is needed to create a viable and equitable cannabis industry. Yet, despite most states legalizing marijuana in some capacity, legislation in Congress related to marijuana legalization remains stalled. Congress has made little progress in enacting marijuana legislation compared to most states due to citizen influence in policy-making at the state level, the impact of neighboring states on each other, and Congressional Representatives’ reelection goals that result in lawmakers ignoring marijuana-related legislation. 


Direct Democracy is Driving Marijuana Legalization in the States

Unlike federal law, many states have laws that allow constituents to propose new legislation directly. The states that have had the most success in passing marijuana legislation are states with direct democracy in the form of either citizen initiative or popular referendum. Currently, 23 states allow statutes or constitutional amendments to be initiated through voter petitions. About half of the thirty states that have legalized medical marijuana did so through either citizen initiative or popular referendum


Using citizen initiative and popular referendum has proven successful in expanding marijuana legalization. There is also evidence that citizen initiative and popular referendum have indirectly influenced state legislators to act on cannabis legalization. Such indirect influence appeared to explain marijuana legalization developments in Ohio in 2016. In 2016, a citizen petition with substantial support was filed in Ohio to legalize medical marijuana. This petition prompted the Ohio legislature to enact a legalized medical marijuana law. Shortly after the legislature enacted the law, the Republican governor signed the legislation, leading citizens to suspend the petition.  


States are Influencing Their Bordering States to Legalize Marijuana

The neighbor model is the other driving force in state action to legalize marijuana. The neighbor model comes from the political theory known as regional diffusion – coined by Berry and Berry, the model outlines the resources needed to facilitate policy adoption. Regional diffusion presents the idea of emulation, which occurs when officials in one state view the policy of an initiative in another state to be successful and therefore want to copy it. Emulation is most likely to occur among “neighboring” states


This neighbor phenomenon has occurred in marijuana legalization as represented by the somewhat clustered domino effect of states enacting legalization in small pockets across the country. Legislators in states neighboring legal states quickly recognized marijuana legalization as a successful initiative that they wanted to replicate in their states. Legislators in nonlegal states needed to act fast as it became clear that residents in nonlegalized states would drive to legal areas to purchase marijuana, resulting in a significant loss of tax revenue. For reference, a small state area like Massachusetts can bring almost $200 million per year in marijuana tax revenue. Missed tax revenue was a significant factor in Rhode Island’s recent passage of recreational marijuana. Rhode Island shares a border with Massachusetts and Connecticut, both of whom have recreationally legal cannabis.


Reelection Goals Are Preventing Congressional Marijuana Legislation

As states rapidly legalize marijuana, it seems like nothing can get accomplished in Congress around any marijuana policy, including legalization. Personal opinions on marijuana, a clouded view of the public opinion of marijuana, and reelection goals prevent congressional moves to legalize and advance the development of marijuana legalization. 


Our congressional representatives are old: the median age of a congressional representative in the 117th Congress (2021-22) is 60 years old, much older than the United States median age of 38. Most people voting to keep those senior representatives in office also tend to be older Americans. Voter turnout for people over sixty-five was twenty percent higher than voter turnout for people between the ages of 35 to 44. Many scholars argue that issues important to older Americans receive disproportionate attention or an intentional blind eye because American seniors tend to vote, donate and participate in politics at a higher rate than their junior Americans. Additionally, political science research suggests that the abundance of seniors in Congress contributes to the disproportionate attention, or intentional ignoring, given to issues that the senior community cares about. 


The support for marijuana legalization has grown to an all-time high, with two-thirds of Americans supporting legalization efforts, up from one-third just ten years ago. At the same time, while most Americans support legalization, only one-third of Americans aged 65+ favor the legalization of marijuana, which is significantly less than the national average. Most of our representatives are in the small category age group of individuals who oppose the legalization of marijuana. Representatives from areas such as Montana and South Dakota, which are states that have voted yes to legalizing medical marijuana, have spoken out, saying that they don’t support federal legalization due to their personal beliefs on marijuana. There is a potential for good publicity in the eyes of congressional politicians when they oppose marijuana legalization since political science research informs us that congressional representatives tend to overestimate their constituents’ support for conservative policies


Unlike the states where often the citizens can present new legislation, Congressional legislation needs to be introduced by a member of Congress. Not surprisingly, re-election-seeking lawmakers are unlikely to advocate a measure that older Americans in their district likely oppose.


Citizens and state legislators will continue to push for legalization within their state, where they have the support and power. As long as congressional representatives prioritize winning reelections over passing wanted legislation by the American people, any congressional legislation addressing marijuana-related issues is prone to deadlock.