Last week, Attorney General Jeff Sessions announced a big change in how the Department of Justice treats states that have decriminalized marijuana. If you can put down your surgical bong and turn off your medicinal Black Sabbath albums long enough to remember, marijuana is illegal under federal law. Since 2013, however, federal prosecutors have been disinclined to indict growers and distributors in states that have made it legal. That’s because of the Cole Memo, an Obama-administration directive that encouraged them to defer to state law.
As a federalist, Sessions is normally a vehement defender of states’ rights. During his confirmation hearings, for example, he said the Voting Rights Act—which gave the DOJ authority to oversee elections in states that have historically disenfranchised minorities—was “intrusive.” He said the same thing about federal investigations into police abuses and about requiring states to recognize same-sex marriage. Yet even though he upholds the right of states to keep black people from voting and gay people from getting married, he draws the line at their right to legalize marijuana.
It’s probably just a coincidence that all three of these issues disproportionately affect minorities. The point is that Sessions stops being a federalist when the joint comes around, and that puts Montana—along with 28 other states that have decriminalized marijuana—in a tough position. Suddenly, federal prosecutors can swoop down upon any of the dispensaries that have opened in the last year, or any of the growers that supply them, or any of the banks that take their deposits.
It’s a real mess. For Sen. Jon Tester, though, it’s an opportunity. As you might also remember, were it not for your chronic pain, the sole Democrat in Montana’s congressional delegation is up for re-election this year. As the incumbent, he might fend off his eventual Republican challenger by running on his usual platform of being a farmer. Or he could seize the best wedge issue the Trump administration has yet given Democrats in red states.
In a Gallup poll conducted in late October, a record 64 percent of Americans said they supported legalizing marijuana at the federal level. Shockingly, a narrow majority of Republicans—51 percent—agreed. Montana voters have consistently expressed similar opinions for more than a decade, most recently through I-182 in 2016. Nationwide and in Montana, strong indicators suggest that Tester should run on a platform of legalizing marijuana at the federal level.
He is uniquely positioned to do it. Opponents of legalization, including Sessions, have framed it as a social issue. They’ve put marijuana in the same class as heroin and told so-called values voters that it will unmake society. None of Tester’s likely opponents is that kind of politician, though. Both Matt Rosendale and Troy Downing have positioned themselves as Trump loyalists, not social conservatives. Tester, on the other hand, has both the skill and the reputation to frame legalization as an agriculture issue.
When Montana first decriminalized medical marijuana in 2004—with a ballot initiative that won 62 percent of the popular vote—it experienced legalization as a growth industry. I suspect that most voters remember the subsequent Republican rollback as halting a boom, not saving law and order. Tester could present federal decriminalization as a way to create ag-sector jobs and strengthen family farms. He could even cite the Kurth family of Fort Benton, who grew marijuana to save their beef ranch before they were raided by federal agents in 1987.
All of Tester’s likely opponents have promised to support the Trump agenda, which includes the Sessions DOJ and its plans to crack down on states like Montana. Legalization would make a useful wedge issue. It would probably even siphon off some libertarian voters who normally go Republican. Most importantly, it would be the right thing to do.
Sessions’ decision borders on entrapment. It reverses federal policy after years of states encouraging people to grow and sell marijuana with Washington’s blessing. Suddenly, all those people are vulnerable to federal prosecution. It’s likely that the DOJ will only go after the largest growers and distributors, but it could just as easily arrest small business owners and even officers at local credit unions. All those people were told that what they were doing was legal, or at least that it wouldn’t get them in trouble. Now they are criminals by fiat of the executive branch.
Tester has a chance to solve this problem and offer the electorate something voters of both parties agree on. He should introduce a Senate bill to legalize marijuana and run on it. It would help build a stronger platform than mere opposition to Trump in a red state. It would offer Montana voters something concrete in exchange for sending the senator back to Washington. It would benefit the ag industry he has championed throughout his career, and it would cut through an increasingly tortuous knot between state and federal law. All he needs to benefit from this issue is the will to take it up.
Dan Brooks is on Twitter at @DangerBrooks.