The Justice Department’s decision to free federal prosecutors to enforce marijuana laws in states that have legalized the drug adds to the political burdens of congressional Republicans trying to hold their House and Senate majorities in an already challenging election year.
An early indication of the issue’s potency was the fierce reaction of Republican Senator Cory Gardner of Colorado, a state where voters legalized cultivation and possession in 2012. Gardner, who also is chairman of the GOP’s Senate campaign arm, slammed the decision by Attorney General Jeff Sessions as “a trampling of Colorado’s rights, its voters.”
"Why is Donald Trump thinking differently than what he promised the people of Colorado in 2016?" Gardner said in a speech Thursday on the Senate floor, evoking Trump’s campaign promise to leave the issue of marijuana legalization to states. "Thousands of jobs at risk, millions of dollars in revenue, and certainly the question of constitutional states rights very much at the core of this discussion."
Follow the Trump Administration’s Every Move
GOP control of Congress hangs in the balance, with all House seats and a third of Senate seats on the ballot in 2018. The question for Republicans is whether complaining publicly about the administration’s decision will be enough to inoculate them from Democratic opponents’ criticism during the campaign.
On Thursday, Sessions rescinded policies adopted by President Barack Obama’s Justice Department that helped states legalize recreational marijuana. The previous approach created guardrails for federal prosecution of the sale and possession of cannabis, which remains illegal under federal law, and allowed legalized marijuana to flourish in states across the country. Under the new policy, U.S. attorneys in states where pot is legal may now prosecute cases where they see fit.
The issue looms large in Colorado, Nevada and California, which legalized marijuana and where several congressional Republicans already are facing tough re-election battles. Nevada Senator Dean Heller and Representative Mark Amodei are Democratic targets, as is Colorado Representative Mike Coffman. And some half-dozen GOP-held California House seats are in play, including three rated "toss up" that are represented by Steve Knight, Dana Rohrabacher and Darrell Issa.
"This is a freedom issue," Rohrabacher said Thursday in a conference call with reporters, calling for a change in federal law to protect legal marijuana in states. "I think Jeff Sessions has forgotten about the Constitution and the 10th Amendment," which gives powers to the states.
"By taking this benighted minority position, he actually places Republicans’ electoral fortunes in jeopardy," Rohrabacher said in a statement later Thursday.
The question could motivate Democrats -- particularly young people — in November.
David Flaherty, a Colorado-based GOP consultant at Magellan Strategies, said the Justice Department’s decision could lead to a “major backlash and a spike in younger voters” if it disrupts the current system in Colorado. “Folks that are 44 and under here in Colorado are much more comfortable with the legalization of marijuana,” he said.
Flaherty said Colorado Republicans must navigate a GOP primary electorate with as many as half of voters age 65 and older, many of whom want to make marijuana illegal again.
Marijuana legalization has grown in popularity: 64 percent of Americans favor it, according to an October 2017 Gallup poll. Support was 57 percent to 37 percent in a Pew Research survey released a year earlier — including a remarkable 71 percent of millennials, currently the largest group of eligible voters in the country.
"Sessions’s move just adds another weight to the ankles of vulnerable House Republicans in places like California and Colorado," said Brian Fallon, a former spokesman for the Senate Democratic leadership and Hillary Clinton’s 2016 campaign. "Given the support for decriminalization across political parties, and especially among young voters, this was an issue that progressives already should have been considering for state ballot measures. That is even truer now."
Gardner -- who doesn’t face re-election until 2020-- isn’t being shy. He vowed to block Justice Department nominees from being confirmed unless Sessions reverses course. Sessions, a former Alabama senator, said in an April 2016 hearing: "Good people don’t smoke marijuana."
Democrats have struggled for years to turn out voters under 30, who tend to lean left, but there’s some evidence that the issue of marijuana can help. That can be seen in 2012 exit polls in states where pot legalization was on the ballot. The share of the electorate age 18-29 jumped 6 points in Colorado, 5 points in Oregon and 12 points in Washington compared to 2008.
"It’s time for anyone who cares about this issue to mobilize and push back strongly against this decision," said Representative Earl Blumenauer of Oregon, a Democrat who is co-chairman of the Congressional Cannabis Caucus.
Some Democrats are skeptical about whether the issue will sweep their candidates into office.
"It makes a good talking point, depending on the district and state. With some targeted advertising it could pique peoples’ interest to get to the polls," said Democratic strategist Rodell Mollineau. "But I don’t think this works for everybody. Independent soccer moms might not care about it."
It’s unclear if the Democratic campaign arms will focus on pot in this year’s campaigns. Democratic Senatorial Campaign Committee Chair Chris Van Hollen, a senator from Maryland, declined to comment Thursday. The House Democrats’ campaign arm didn’t weigh in, either.
House Democratic Leader Nancy Pelosi of California called on Congress to use spending bills to protect Americans who use pot from prosecution. The "decision bulldozes over the will of the American people and insults the democratic process under which majorities of voters in California and in states across the nation supported decriminalization at the ballot box," she said.
Pelosi’s approach poses a dilemma for Republican leaders. Granting her wish means picking a fight with a GOP administration. But refusing gives Democrats the ability to argue voters should take congressional control out of their hands.