Ken Cuccinelli was in unfriendly territory when he stepped to the podium in a sloping auditorium at the University of Virginia on Feb. 6. A conservative icon in a hall crammed with college kids is a powder keg awaiting a spark, and cops had been summoned to defuse any eruptions. But the commonwealth’s attorney general disarmed his audience by citing the “fascinating experiment” underway in Colorado and Washington, states where voters legalized marijuana in landmark referendums last fall. “I’m not at all unhappy that they’re doing it,” he said, noting that his views on drug enforcement are “evolving.”
It’s a perspective often voiced in late-night dorm-room discussions but rarely uttered by an ascendant Republican running for governor. Yet as the push to legalize pot migrates from the margins to the mainstream, it is mellowing some Republicans in the process. “If it was a secret ballot, the majority of Republicans would have voted to legalize marijuana a long time ago,” says GOP Congressman Dana Rohrabacher, who opposes the “monstrous” war on drugs. For years, conservatives’ convictions have been trumped by the fear of being painted as soft on crime in a primary ad, he says. But now, “when the Republicans start wetting their finger and sticking it in the air, they’ve got to begin to realize that the wind is blowing in the opposite direction.
Pot is having a political moment. The percentage of Americans who favor scrapping the 75-year-old federal prohibition on weed has doubled during the past decade to about 50% and is projected to keep climbing. The statistical guru Nate Silver has predicted the figure could hit 60% within the next 10 years. In addition to Colorado and Washington, where a majority of voters opted to outright legalize lighting up in November, 18 states plus the District of Columbia permit licensed medical marijuana dispensaries. Fifteen more have decriminalized possession.
It’s unlikely these statutes could survive a collision with federal law, which is unlikely to change anytime soon. But Rohrabacher says conservative ideology should spur the party to revisit its policies. The party’s libertarian wing has long opposed government infringement on personal choice. Fiscal hawks can point to the billions of dollars in taxes and fees that legalizing weed might yield for recession-hobbled state budgets. Then there’s the budding alliance between stoners and conservatives — like Cuccinelli, former Indiana governor Mitch Daniels and Kentucky Senator Rand Paul — who don’t advocate legalization but say states should have the right to make that choice.
“I don’t have a problem with states experimenting with this sort of thing. I think that’s part of the role of states,” Cuccinelli, who declined an interview with TIME, told students in Charlottesville. The attorney general, 44, said that while he wasn’t sure what Virginia’s future held, “I am personally for a lot of reasons, for the federalism reason…very interested to see how that plays out in Colorado and Washington.” Daniels made a similar point in an interview with National Review. “Federalism is, first and foremost, a protection of liberty. And I would just hope that people who say they believe that would be consistent,” he said. “Without endorsing what they [Colorado and Washington] did, I think they had, under our system, a right to do it…A lot of the worst problems we’ve got in this country, and some of the worst divisions we have, came when the right of citizens in community and in polities, like their state, had those rights usurped by the federal government. And having disagreed with it when it happened on other occasions, I sure wouldn’t call for it here.”
He’s not alone. GOP Congressman Mike Coffman opposed the referendum in his home state of Colorado. But after it passed with 55% support, he signed onto a bill warning the Justice Department, which is weighing how to cope with state laws that defy a federal statute, not to meddle with the result. According to a recent CBS News poll, 65% of Republicans think the decision should be left up to the states.
A softer stance could also help Republicans compete for young voters, who overwhelming favor legalization and who fled the party in recent presidential elections. “It’s one of the easier things for them to do,” says Larry Sabato, the University of Virginia political scientist whose class Cuccinelli visited. “It’s easier than immigration. It’s easier than supporting gay rights.” And pot is as much a touchstone social issue for young voters as abortion and gay marriage. It’s one of the reasons the libertarian Ron Paul earned such a fervent following.
The trick now, says Allen St. Pierre, the executive director of the National Organization for the Reform of Marijuana Laws, “is to get them to look at the data and understand that they are facing no real political risk.” In liberal states like California, Massachusetts, Maine and Oregon, that may be true. It hasn’t hurt the staunchly conservative Rohrabacher, a former Reagan speechwriter who “dutifully supported the war on drugs” for a long time. “Since I have decided to be very frank about this issue, I have had no repercussions at all,” he adds.
Legalization won’t be easy, and not least because state statutes are superseded by federal law. “A state doesn’t have the right to legalize marijuana any more than a state has the right to legalize anything else expressly prohibited by federal law,” says Kevin Sabet, a former Obama Administration drug-policy adviser and a co-founded of a group called Project SAM (Smart Approaches to Marijuana). Chaired by former Democratic Congressman Patrick Kennedy, the group promotes a middle path between draconian drug laws and legalization while warning about the detriments of the drug.
Still, the notion is more politically viable than ever, thanks to the apogee of the ’60s-reared baby boomer generation, a recession that makes new revenue streams look enticing and the failures of a drug war that has overburdened prisons and failed to differentiate between drugs such as marijuana and methamphetamine. “Our history has demonstrated that it isn’t very effective,” Cuccinelli said in Virginia. While Rohrabacher concedes that Congress is nowhere close to letting smokers light up with impunity, he predicts that by 2016, it will be a major issue in the Republican presidential primary. Letting states legalize weed boils down to limited government, he says. “That’s a very legitimately conservative position.”