The Upcoming Marijuana Votes

I think the ballot question needs little modification — but I would welcome your thoughts before voting.

I supported Question 4, legalizing marijuana, because I feel there are too many ways for young people to get caught up in the criminal justice system. Dealing in illicit substances is all too attractive for young people who have limited opportunities. We need to take away the incentives to go into illicit marijuana dealing by creating a fully functioning legal market.

Fortunately, there is no movement to eliminate any of the basic freedoms created by the people’s vote last November.

Yet, there are two kinds of troubling proposals under discussion in the legislature.

First, increased taxation: The people voted to tax retail marijuana sales at 3.75% on top of the 6.25% sales tax. In addition, the people voted to allow a 2% local tax on top of that for a total of 12%. There are various proposals to increase those tax rates — motivated either by the opportunity to fund state priorities or by the notion that higher taxes would reduce consumption of an unhealthy product (think, for example, of our high tobacco taxes or of proposals to tax sodas).

I have no interest in these tax proposals — the higher we raise the taxes, the more persistent the black market will be. Moreover, in 2018, we will be asking the people to consider a tax increase on those making over $1 million per year, a proposal that would raise 10 or 20 fold more than the marijuana tax will raise. I do not feel that we should be nickel-and-diming voters, especially where they have already spoken as to the tax level they feel is appropriate for marijuana.

Second, elimination of the voters’ voice. The people’s vote last November allows communities to ban marijuana establishments by a local referendum. Several dozen communities have already gone through this process. Some local officials are lobbying for the ability to shut out marijuana establishments by a vote of the city or town’s governing body, instead of popular referendum. I personally feel that movement in this direction would send exactly the wrong message — the message that government officials know better than the people and should not have to consult them on this matter of community preference. Additionally, I am concerned that reducing the number of licit outlets will sustain the illicit market.

The ballot question vested regulatory authority in a commission appointed and controlled by the state treasurer, analogous to our Alcohol Beverage Control Commission. Some have suggested that we should split the appointing authority among the other statewide constitutional officers, as we have for the Gaming Commission. I have no objection to this, but do not find it compelling.

On a positive note, some are pushing for the addition of language to expunge the records of people who were convicted of marijuana crimes under the old law. I share the motivations of these advocates, but I think expungement is a side show in this context. Very few people will benefit from any feasible expungement process. Even under existing law, first-time marijuana possession offenders automatically get their records sealed.

Overall, while I see the potential for some technical corrections to the ballot question, I am at a loss to see why we’d want to make any major changes. People are watching government closely these days and there is a crisis of confidence. The last thing we should be doing is pushing back on the will of the people in the absence of very compelling reasons to do so.

I’d very much welcome your thoughts.

Update on June 21

Senator Jehlen has released to the Senate for review a good bill which is respectful of the will of the voters and responsive to the concerns I outlined above. She has also produced a summary and a comparison of the pending bills with the ballot question. The latter document includes some useful answers to frequently asked questions.

The House is taking up its bill today and the Senate is taking up its bill tomorrow. Conferees will get down to work on negotiating between the branches soon after that. There are over 100 amendments pending to both bills, so the bills will change materially before going into the conference process.

Thoughts still welcome!

Published by Will Brownsberger

Will Brownsberger is State Senator from the Second Suffolk and Middlesex District.

169 replies on “The Upcoming Marijuana Votes”

  1. Will –
    I agree with the logic of your response on all these issues. Rejecting the voters’ voice and so fully revamping the legislation as is now proposed seems quite wrong and voids the basic expectations of our democratic process. Increasing the tax level could defeat hopes of reducing the black market. Whether a slightly different administrative structure would work better may be arguable – and I trust the legislators to have a reasonable understanding of how to best define that.
    Thank you for your good thinking.
    Myron Miller

  2. I agree fully, Will, w your analysis. Especially raising the taxes. If legal weed becomes too expensive, we will be encouraging the illegal black market to flourish. Sallye bleiberg.

  3. Hi Senato Brownsberger,

    I agree with your stated positions on the proposed changes of the marijuana legalization referendum.

    Thank you,

  4. Hi Senato Brownsberger,

    I agree with your stated positions on the proposed changes of the marijuana legalization referendum.

    Thank you,

  5. Hi Will, you asked so here is my opinion.

    2. I knew this would happen. Everyone said woohoo, it’s going to legal. I kept saying that would believe it when I see it.

    3. Stop the foot dragging. The question won. Why not just license liquor stores to sell weed, or at least treat it the way liquor is. GRRRRRRRR. I remember I’m an old lady.

    4. That being said, thanks for looking out for democracy. And your points are well taken.

  6. Agree tax it to much they will just buy it on the black market, so its Lose lose for Massachusetts!! Guess they didn’t get that name Taxachusetrs for nothing !

  7. Will-
    I agree with you. It doesn’t make sense to impose a large tax on legal marijuana because folks will just buy it on the illicit market to avoid the tax. Also voters, not local officials, should get to decide if a particular community is going to prohibit marijuana sales within its borders.
    The commission the voters approved is fine-there is no need to tinker with it.
    And most importantly, the voters have spoken. Their decision should stand as is.

  8. Fully agree, Will. The suggestion of such a huge increase in the taxation would be the government equivalent of price gouging. The citizens of a town or municipality should take responsibility for decisions regarding local retail, they know their town and what it can tolerate,it also takes the political element out of decision making by town councils or selectman.
    I do believe however that complete expungement of all marjuana convictions would possibly be in keeping with a renewed interest in prison sentencing reform.

  9. You have already shared my thoughts. I think the various attempts at undermining the public’s decision on this issue are deplorable. The tax increase is yet another dodge. Thank you, as always, for your intelligent and reasonable approach.

  10. On the tax – it seems to me that voters were voting basically to legalize MJ, and whether the added tax was 3.75%, or higher or lower, was not much of a consideration, if any. So the level of tax is a debatable topic. I agree it should not be punitive and drive people back to their dealers. But this is a competitive situation. Legal stores have costs and profit expectations. Illegal dealers have the same. Surely the state has data on what it takes for a legal store to compete with an illegal dealer. That data is what should drive the discussion.

    1. Data is great, but it’s hard to get comparable data.

      We know that people are driving to New Hampshire to buy cigarettes, but that doesn’t tell us how much we can raise Marijuana taxes.

      There are a whole lot of factors that will weigh into the choices that people make about where to buy and those factors vary from locality to locaality and person to person.

      Personally, I’d rather not push it, especially given the political context.

      1. I guess you are saying the state has not sought the data. The police know exactly what the economics of the illegal MJ trade is.

        1. The legislature really has made good effort to seek the data — there is a good white paper that our special commission produced last March — read it here.

          Noone really knows the economics — not at the level of certainty that gives unambiguous guidance for policy purposes. The police know prices, but not economics.

          For about ten years, I was part of a multi-disciplinary drug policy project at Harvard (read our book here). I had the privilege of working with some of the best-known drug economists in the world.

          The economics are very complex and murky and subject to huge guesstimation.

  11. I voted against legalizing marijuana. I hate gambling and think drinking is a very mixed bag. Still, if the law passed, I guess it must be honored until such time as folks rethink.

  12. I agree with your points.

    I don’t really like legislation by ballot initiatives because, while the people get to vote, we don’t get to discuss details the proposed law and make changes. That’s something the legislature *can* do, but apparently wouldn’t do for some reason in this case. And even if we could do it, we don’t individually have the resources to do research into the details of the proposed law (such as what is an appropriate tax rate).

    And then we get into the situations we have now, where the legislature does finally act, but tries to overrule the will of the electorate (increasing the tax rate dramatically, changing how a city/town can rule out having marijuana stores, etc).

    So, I’d agree with your point that the legislature should fix technical problems, but leave alone what people voted for.

  13. I agree with all the comments you made. Keep the law the way we voted on it and tax the high earners.

  14. I think your reasoning and conclusions make sense on all points and so would support your votes as described. Thank you for your clear thinking, for holding firm to these important principles, and especially for reaching out to your constituents in this way.

  15. Hello, Will …
    That our elected representatives regard themselves as empowered and entitled to second guess the electorate should give us all pause. It such behavior — even more than rogue bureaucracies — that corrodes faith and trust in the government. If what we decide at the ballot box is ignored then we are no longer democratic society in any meaningful sense. Nor are those we elect representative in any meaningful sense.

    I support your position. Carry on.

    Cheers, Scott

  16. I agree with the House vote on the 28% tax. 12% is too low for a “sin” tax since I think the taxes raised should cover the cost of drug addiction treatment programs and the regulatory cost. For the tax delta if you really want marijuana for recreational use wouldn’t you want to buy it from a known source and pay a surcharge vs the random drug dealer on the corner? Having visited some of the stores in CO w a 27.9% tax I can tell you there is no shortage of demand.

    On a side note I think it’s time to do away with the 3 tiered distribution system with alcohol which only serves to benefit a few distributors. Given this day and age of Amazon prime and uber eats I should be able to order wine from a winery I visit without an undue tax that doesn’t even benefit the state.

    On the 2018 $1M surcharge I’m against since that demograhic is the most mobile. Just take a look at what’s happened in CT, but if it does go through the taxpaper should br allowed to pick the bucket i.e, infrastructure, parks, safety, education it goes into vs a general fund

  17. I agree with you especially on the local control issue. We have seen that politicians have lagged on this issue, making voters the instigators of change in every state where cannabis has been legalized. Local politicians will likely be more responsive to constituencies who are vocally fearful of outlets in there community even though they may not represent the majority view. Let communities vote!

    1. Leave the bill alone. That is my input.
      Follow the bill. The people voted for legalizing marijuana and this was not a nonbinding vote.

      I would also like to see in the near future those who have an arrest record for having marijuana petitioning to have their record expunged.

  18. As far as the Millionaie tax. I say be careful what you wish for. They may just move to a lower tax state and you might get less than you think

  19. Raising taxes as high as those being proposed would end up leaving the black market for marijuana in place. Reasonable regulated access is what is needed; marijuana isn’t going away.

    Eliminating the voters’ voice is a terrible idea. Referendums are the right way to do this. Allowing Boards of Selectmen or Mayors or other municipal bodies to ban marijuana rather than leaving this to the citizens of their communities sends a message of no confidence to the electorate/

  20. Will, I am neutral on the changes that you highlight. I am more concerned that it looks like the regulatory regimes for medical and recreational will be merged. This can make it more difficult to gain acceptance for a medical dispensary in a location that might have more concerns about a recreational one. It also may cause more issues if the federal government decides to crack down on one but not the other and lead to problems for both, remembering that they are not legal under federal law.

  21. On local choice – I agree with you that the voters in a community should decide, not their elected officials.

    On expungement – We should do everything we can to clean up the records of people convicted of crimes that are no longer crimes. But I assume that would not include dealers.

    Question – Will businesses certified to distribute medical MJ be automatically allowed to distribute recreational MJ?

  22. I’m with you on all fronts on this issue. No tax increase. No commission. No pushing back on the will of the people.

    Thanks for all you do!

  23. The history is important here. The legislature was opposed to medicinal marijuana, and helped slow that down. Then we voted this in, and they slowed that down. And now they’re making significant changes.

    The disregard for us, the voters, is palpable. It’s offensive.

    We had a ballot question, we considered it, we voted for it 2:1. Just do it, if only to demonstrate that the legislature cares what its constituents think. Give us the benefit of the doubt; and if a couple years in, it needs tweaking?, *then* start tweaking.

  24. Personally I agree with how you are thinking about this issue. If the taxes assessed appear to be too low to cover the cost of any negative health benefits in the future, we can raise them then. Local referendums definitely seem to be the way to go on this issue.

    1. It’s not about the pot for me. It’s not about the taxes, either.
      It’s about freedom.

  25. I think your perspectives are right on the money.

    Burdensome and disproportionate taxation is just a back door toward prohibiting and driving people to the illicit market. “Additionally, I am concerned that reducing the number of licit outlets will sustain the illicit market.” This cannot be understated: the intent is to effectively eliminate the illicit market. Geography is a important and if there are large areas where there are no sales allowed, this again brings back the illicit market.

    I agree that there should be some density restriction perhaps but that may already be in the ballot. In short, as you’ve said, this looks like tangential efforts to reverse or nearly reverse the stated will of the people.

    FWIW, I dont use the stuff, but can’t believe we’re filling our criminal justice system with these, fostering illegal sales, and ruining kids lives with criminal convictions for not much at all.

  26. I agree with you on both the taxes and the local ability to ban marijuana establishments.

  27. Will

    I totally agree with your positions. I was appalled at the bill that the house proposed. It went against the will of the electorate.

  28. I am in total agreement with you. The electorate voted . Are e they going to increase taxes on opioids? For once why can’t the legislature do what the electorate asked for. Thank you for your solicitation of ideas and for your service,

  29. I agree with you that both changes to the law are troubling. I also believe that the black market would flourish under higher taxes.

  30. Senator,
    I hope this finds you well.
    I am in COMPLETE AGREEMENT with you on this.
    You have once again earned my vote.
    54-46. That was the difference. If a Democrat won an election with those numbers the leadership would be saying things like “The people have spoken” and “This was a mandate”, or even “As Democrats, we believe in representative democracy. We must follow the will of the people”.
    The House Speaker says that we’re stupid, that we didn’t know what we were voting on. As if we can’t read, and think.
    I, therefore, thank you sir, for not being as condescending.
    I truly wish you well.

  31. Will, thank you once again for your thoughtful analysis of this issue; I agree with you on all points.

  32. Thank you for your thoughtful analysis and for your pushback against the effort of some of your peers to overturn the will of the public. I think there is need for greater regulation around advertising, for example, but the tax rate is fine as it is and democratic control is vital.

  33. I read the post and all the comments. It seems almost everybody is with Will, as I pretty much am. Don’t let local officials impose restrictions unless approved by voters. Make administration of the law associated regulations as simple and cost effective as possible.

    But I have a hard time deciding what level of taxation makes sense. Someone said that 27.5% doesn’t seem to dampen sales in CO. Maybe, but who can say what 10% would have done for sales? As for encouraging a black market, does anyone really know those parameters? Where’s the data?

    Consider that the 10% rate may be too low to deter people from amassing packets of legal pot and then dealing them to minors or nonresidents at a higher markup. Taxation at twice that or more might reduce that incentive. This would be moot if the law limits amounts of pot an individual can buy in a given period, but such restrictions would require a form of big-brotherism that most people wouldn’t accept.

    Lastly, I would like to see the law administered in a way that does not disadvantage small producers. The last thing I want to see is for pot to be corporatized, which inevitably leads to large concerns getting breaks small producers don’t. So, how about imposing a graduated tax on cannabis profits?

  34. The people have given a decision and that must be honored by the legislature. Even though I have mixed opinions about legalizing marijuana, the legislature should stop meddling around.

  35. The will of the people was to allow recreational Marijuana. It was a rare person who concerned themselves with the details.

    Your job is to figure out the best legislation to make Marijuana legal in a way that does not harm society — either the users or general public.

    It’s not about the advocates — get it right for the Commonwealth.

  36. > voters, especially where they have already spoken

    This is critical. The legislature could well have enacted progressive marijuana itself and failed to do so. For it now to raise the tax in a way that may threaten the most important part of the idea–to minimize or eliminate the black market–is very dangerous. Clearly, the generally conservative Democratic House of Representives–living under the speaker’s thumb–once again is reacting rather than leading.

  37. In terms of whether a higher tax rate would be a POLICY problem, it would be helpful to know somethings about other states’ experiences; my impression is that the tax rate is significantly higher pretty much everywhere else. It is very hard to know what the effect of a certain tax rate will be vis a vis the illicit market. It would help to know more about the experience of other states (which I know is obviously very limited), and to know what the tax rates are on alcohol and cigarettes. It seems reasonable to do something comparable with marijuana. I agree with the comment that people voted for this in order to legalize, not in order to set a specific tax rate. My (again not very informed) opinion is that this bill was put forward by commercial marijuana interests, who obviously would like the lowest feasible tax rate.

    From a POLITICAL standpoint, judging from the overwhelming weight of these comments, it doesn’t make a lot of sense to tinker with the people’s voice at this point.

    My philosophy here and with many other things is “legalize and tax to [or slightly beyond] social cost.”

  38. I couldn’t agree with you more. The ballot question is as close to democratic government as it gets. Any legislation that changes the ballot question as written undermines the people’s ability to participate in self government.
    Thank you for respecting the people’s decision.

  39. I agree with your analysis. Most of the proposed changes are bad policy.

    The only thing that gave me pause in this was “analagous to the ABCC.” I think the ABCC is terribly misguided most of the time, and I wouldn’t want to repeat that mistake.

  40. Hello,

    I agree with your thoughts. I think that taxing marijuana extensively will lead to more illicit buying/selling. Since this is the opposite of what we want, I would prefer to reduce the taxes on the drug.

    Children who want it will always be able to get access, just as they are able to access alcohol and cigarettes. However, the more prevalent legal avenues are, the harder it will be to find illegal avenues.

    Not allowing marijuana establishments is a short-sighted decision by towns and people alike. I agree with your basic sentiment, but I’m not sure it is that important.

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