David Boaz

I wrote last month that new regulations and taxes in California’s legalized marijuana regime are likely to result in a situation in which

a few people are going to get rich in the California marijuana industry, and fewer small growers are going to earn a modest but comfortable income. Just one of the many ways that regulation contributes to inequality.

Now the East Bay Express in Oakland offers a further look at the problem:

Ask the people who grow, manufacture, and sell cannabis about the end of prohibition and you’ll hear two stories. One is that legalization is ushering a multibillion-dollar industry into the light. Opportunities are boundless and green-friendly cities like Oakland are going to benefit enormously. There will be thousands of new jobs, millions in new tax revenue, and a drop in crime and incarceration.

But increasingly you’ll hear another story. The state of California and the city of Oakland blew it. The new state and city cannabis regulations are too complicated, permits are too difficult and time consuming to obtain, taxes are too high, and commercial real estate is scarce and expensive. As a result, many longtime cannabis entrepreneurs are either giving up or they’re burrowing back into the underground economy, out of the taxman’s reach, and unfortunately, further away from the social benefits legal pot was supposed to deliver….

Some longtime farmers, daunted by the regulated market’s heavy expenses, taxes, and low-profit predictions, have shrugged and gone back to the black market where they can continue to grow as they always have: illegally but free of hassle from the state’s new pot bureaucrats armed with pocket protectors and clipboards.

Not all the complaints in the two-part investigation are about taxes and overregulation. Some, especially in part 1, are about “loopholes” in the regulations that allow large corporations to get into the marijuana business and about “dramatic changes to Humboldt County’s cannabis culture, which had an almost pagan worship of a plant that created an alternative lifestyle in the misty hills north of the ‘Redwood Curtain.’”

But there’s plenty of evidence that regulations are more burdensome on newer and smaller companies than on large, established companies. Indeed, regulatory processes are often “captured” by the affected interest groups. The Wall Street Journal confirmed this just yesterday, reporting that “some of the restrictions [in Europe’s GDPR online privacy regulations] are having an unintended consequence: reinforcing the duopoly of Facebook Inc. and Alphabet Inc.’s Google.”

Marc Thiessen, a columnist at the Washington Post, is highly upset that the Senate Foreign Relations Committee may not approve President Trump’s nomination of Mike Pompeo to be Secretary of State:

For the first time in the history of the republic [since the committee started recording votes in 1925], it appears increasingly likely that a majority of the Senate Foreign Relations Committee will vote against the president’s nominee for secretary of state. If this happens, it would be a black mark not on Mike Pompeo’s record, but on the reputation of this once-storied committee.

Thiessen seems to think that the role of the Senate Foreign Relations Committee, and by extension the United States Senate, is to approve a president’s nominees. But of course, the Constitution provides that “The President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” The Heritage Foundation’s Guide to the Constitution affirms that “the Senate has complete and final discretion in whether to accept or approve a nomination.” The Foreign Relations Committee is today considering whether to consent to this nomination. The Senate as a whole may choose to reject the negative recommendation and consent to the nomination. (See also the novel and movie Advise and Consent, on TCM this Friday.)

It’s not that members of the committee don’t have legitimate grounds on which to withhold consent. Sen. Rand Paul, a key player as he is likely to be the only Republican on the committee to oppose the nomination, says:

Director Pompeo has not learned the lessons of regime change and wants regime change in Iran….

President Trump sought to break with the foreign policy mistakes of the last two administrations. Yet now he picks for Secretary of State and CIA Director people who embody them, defend them, and, I’m afraid, will repeat them. I will not support their nominations.

One need not agree with that criticism to acknowledge that it’s a reasonable concern on which to reject a nominee.

Thiessen is a former speechwriter to Secretary of Defense Donald Rumsfeld and President George W. Bush, which might give him an executive-branch view of Congress’s role. Before that, however, he served for six years as spokesman and senior policy advisor to Senate Foreign Relations Committee Chairman Jesse Helms, whose willingness to use his position to block presidential nominees was well known. He mentions Helms’s support of President Clinton’s nomination of Madeleine Albright for Secretary of State, but omits the nominees Helms blocked or tried to block, such as Massachusetts governor William Weld and former senator Carol Moseley-Braun.

Thiessen concludes his excoriation of the Senate Foreign Relations Committee with a flourish: Assuming he is confirmed by the Senate, Pompeo “would be more than justified in determining that the State Department is best served by working closely with the appropriators and Senate leadership, and bypassing a committee that can’t make policy, can’t legislate and can’t lead.”

His real complaint, however, is not that the committee can’t lead. It is that the Senate Foreign Relations Committee won’t blindly follow.