Amid the haze of pot smoke that floated above Boston Common as college-aged kids casually passed around blunts, Steve Epstein took to the stage and grabbed a microphone.
“We knew this day would come, when our Freedom Rally would be the initiative petition kickoff!’’ Epstein bellowed to the pot enthusiasts gathered at September’s annual marijuana festival.
Most of the stoned crowd paid him little attention. They probably didn’t realize that Epstein, who is leading a charge for marijuana legalization in Massachusetts, is in the political fight of his life. In Massachusetts and across the U.S., pro-pot groups—who have long fought together to legalize medical marijuana and decriminalize the drug—are locked in a standoff.
Legalization, for so long a question of if, has quickly morphed into a question of how. As it sweeps across the nation, the battle has turned inward as advocates argue over what marijuana policy ought to look like.
Massachusetts legalized medical marijuana in 2012. Prior to that, in 2008, voters decriminalized possession of small amounts of pot. Now advocates are pushing to legalize recreational use of the drug.
Two competing pro-legalization campaigns are collecting signatures to get their respective questions on next year’s ballot. They each need 64,750 voters’ signatures before the first week of December to advance to the next stage. That means voters could face competing marijuana legalization questions at the polls next year. And some pot activists fear picking sides could split the vote and not result in any legalization at all.
“There are lots of different reasons for reforming marijuana laws and repealing prohibition, and those reasons don’t always gel nicely,’’ said Vanderbilt University law professor Robert Mikos. “They’re not allies in terms of what replaces prohibition.’’
Epstein’s group, Bay State Repeal, is pushing for a form of legalization with decentralized regulation and minimal taxes. For years, the group’s backers have led the local effort for marijuana reform.
His political foes are the buttoned-up Campaign to Regulate Marijuana Like Alcohol, a group advocating for the creation of a new state commission to provide close government oversight and a new tax on pot sales. CRMLA is backed by the national Marijuana Policy Project, which brought the nation’s first legalized recreational pot sales to Colorado.
Marijuana infighting also recently played out in Maine, where two pro-pot groups had a similar argument over regulatory rules before reaching an accord this fall. The conflict was even more stark in Ohio this year, where some pot advocates successfully campaigned against a ballot question that would have legalized the drug. They opposed the measure because it would have granted a total of just 10 growing licenses across the state, creating what they called a “marijuana monopoly.’’ Grassroots and corporate pot interests also collided in a New York magazine cover story this month that detailed musician Willie Nelson’s “crusade to stop big pot.’’
A high-energy attorney who co-founded the Massachusetts Cannabis Reform Coalition more than two decades ago, Epstein describes CRMLA as corporate out-of-towners. He believes CRMLA’s new tax would drive pot smokers to the black market, its new state commission would create bureaucratic headaches and big marijuana businesses would profit from its strict limits on homegrown plants.
While his initiative has been described as more hands-off, Epstein argues it has tighter safeguards than CRMLA in some respects, such as fines or jail time for people who sell or provide pot to underage consumers.
“It’s incredibly insane for them to expect that their agency is going to be able to regulate marijuana like alcohol,’’ Epstein said. “They must be not aware of just how bad bureaucracies in this state can be.’’
Epstein’s proposal, which his group bills as “the least restrictive laws possible,’’ would give multiple existing state agencies some oversight of different parts of the industry. Citizens would be allowed to grow as many plants as they wished in their own homes. Retail sales would only be subject to the state sales tax, though cities and towns would tax companies that allow on-premise pot consumption.
Sales could stretch far and wide under this plan, as existing retailers would be able to register to sell pot almost as if it were tobacco. Unlike tobacco, the law would require that marijuana products be kept in a dedicated room.
CRMLA, led by a former assistant attorney general, Will Luzier, says its approach is the one that will appeal to a wide swath of voters, not just the activists who have spent years crusading for legalization.
The group promises tight governance of what figures to be a controversial industry through a new regulatory commission. An excise tax on pot sales would pay for it, and cities and towns would have additional taxing powers to benefit from the new market. Established medical marijuana facilities would get first dibs on opening retail outlets, and all pot retailers would go through a new licensing process.
The centralized oversight would keep federal regulators that still consider the drug illegal off businesses’ and customers’ backs, CRMLA spokesman Jim Borghesani said.
“Marijuana has been illegal for 80 years. There’s been a lot of hysteria,’’ Borghesani said. “It’s not like we’re saying we’re going to end prohibition just a little bit. We’re ending marijuana prohibition. … [Our way] is something people are familiar with, it’s something that has worked.’’
Yet some advocates fear that if both questions wind up in front of voters, neither one will pass. The Cannabis Society of Massachusetts, for example, is not picking sides, instead promoting a #Vote4Both campaign.
“Both are really good. So we have to vote for both,’’ said Michael Latulippe, the Cannabis Society’s founder. “We can’t risk voting for one or the other, because it could lead to disastrous consequences. Like what if it didn’t pass or both didn’t pass, because there was conflict or confusion in the general public around this issue?’’
Leaders of Bay State Repeal and CRMLA said they probably wouldn’t campaign against each other if they both wind up on the ballot, since each one would have to confront opposition campaigns. Gov. Charlie Baker and Boston Mayor Marty Walsh are among the officials who oppose legalization.
Whether both questions will make the ballot is still a big if, though. Bay State Repeal lacks CRMLA’s national political network and fundraising ability, making it more dubious that it will be able to collect the needed signatures.
But Bay State Repeal got a much-needed boost earlier this year when the statewide marijuana advocacy group MassCann, co-founded by Epstein in the early 1990s, endorsed his group’s question over CRMLA’s. MassCann’s members have helped to bolster Bay State Repeal by volunteering to collect signatures and spreading the campaign’s message.
MassCann’s support for Bay State Repeal is not all-or-nothing, however. Chairman Bill Downing said the organization would “absolutely’’ shift its support to CRMLA if Bay State Repeal failed to make the ballot. Even Epstein conceded that he “might hold my nose’’ and support CRMLA under those circumstances.
In the event both questions made the ballot and passed, whichever one gets more “yes’’ votes would win out where the laws differ, according to Brian McNiff, a spokesman in the secretary of state’s office. Such a scenario may result in litigation or lawmakers working to better bridge the divide, he said.
“Once they’re passed, they’re part of the General Laws, which means the legislature can revisit them and sort it out if they choose to,’’ he said.
For activists who have spent decades fighting for the end of marijuana prohibition, that wouldn’t be such a bad problem to have.