The Perfect Tea Party Issue: Ending the War on Drugs

-- Posted by Neil H. Buchanan

It is a bit awkward to write about the so-called Tea Party Movement, because it seems fairly clear that the "movement" is rather small and fractured, that it is to a significant degree an "astroturf" movement driven by organizations like Dick Armey's FreedomWorks lobbying group, and that it has been the beneficiary of exaggerated coverage by television news organizations. If nothing else, people in colonial dress shouting insults about the president make for a good show. Fewer than a thousand people show up at well-advertised protests, and the group's first "national convention" was little more than a poorly-attended series of photo ops; yet all of the major news organizations have lavished coverage on the groups' supposed political ascent. The numbers, however, seem to add up to no more than -- and probably a lot less than -- Ross Perot's supposedly game-changing Reform Party in the 1990's; so skepticism is in order.

Nonetheless, the media's portrayal of the Tea Party movement has now coalesced into a reasonably clear description. They are a libertarian group that hates government, especially the federal government. They are focusing on economic issues rather than social issues. They have an emerging image problem around the issue of race, although they insist that they are not racists. If this picture is accurate (again, a big if), then the question is what the Tea Partiers will adopt as their next big issue. The health care debate is quickly becoming ancient history, and the Democrats have taken the populist high ground in the debate over financial reform. The suddenly-hot immigration issue is exactly what Tea Partiers should avoid, because it exposes them even more clearly to charges of racism and nativism, and because immigration carries culture war baggage that they would presumably wish to leave behind.

There is, in fact, an absolutely perfect issue for this group to rally behind: drug legalization. It could not be a better fit for the narrative that has emerged. Many of the Tea Partiers (roughly half, if the polls are accurate) are Ron Paul-style libertarians in the first place, for whom drug legalization is already a central notion of individual liberty. Beyond that, moreover, the Drug War plays into two of the issues most central to this putative movement's concerns: federalism, and government's impact on the economy.

Criminal law has, of course, traditionally been the responsibility of the states. When the war on drugs intensified in the early 1990's, however, the federal government's role in criminal law grew accordingly. When I was clerking on the 10th Circuit in 2002-03, everyone in chambers knew that saying, "I've got a criminal case," was the same thing as saying, "I'm working on a drug case." The systematic peeling back of 4th amendment protections was accompanied by judicial pronouncements that it was supremely important to keep the scourge of drugs out of our neighborhoods. A few federal judges protested vigorously against the federalization of this one area of criminal law. As a matter of federalism, therefore, the drug war is an ideal area in which to say, "Let the states do it."

As a matter of government intrusion into the economy, the case against the War on Drugs is even stronger. Tea Partiers are apparently very exercised about excess spending by the government. Jeffrey Miron, of the Harvard Economics Department, estimated in December 2008 (using very conservative assumptions) that drug legalization would save the federal government $14 billion per year and state governments $30 billion per year, while bringing in a total of about $33 billion in additional tax revenue.

Those costs are, however, only the most direct measure of the cost of the drug war. Several years ago, I participated in a symposium at Rutgers-Newark (co-sponsored by the School of Criminal Justice and the School of Law) that explored the social costs of the war on drugs. I have not yet turned my comments into an article, but I worked up some ballpark calculations of the economic cost of the incarceration binge that has accompanied the war on drugs.

It is well known that the U.S. now incarcerates more than 2 million people, the vast majority of them for violations of drug laws. (The horror stories of horizontal inequities are legion, with murderers and rapists serving less prison time than people who were caught with small quantities of marijuana.) As a very conservative estimate, assume that one-third of those people are non-violent drug offenders who could be released without danger to the public. That is about 600,000-700,000 people, which is almost exactly one-half of one percent of the labor force. Although these people are not officially listed as unemployed, they are clearly unemployed in the economic sense of that term.

There is a statistical regularity known as Okun's Law, which says that for every 1% increase in the unemployment rate, there is a 2% - 2.5% decrease in GDP. If we could put 1/2% of the labor force back to work, therefore, Okun's Law tells us that we would see an increase in GDP of approximately 1%. With GDP in the US approaching $15 trillion this year, that is a loss of $150 billion in economic output.

All of these are rough, back-of-the-envelope estimates, of course. (In addition, they are based on the assumption that the unemployment rate will eventually move back toward full employment levels.) There are also many other costs of the drug war (whereas the benefits have proven rather difficult to quantify -- or even identify.) The point, however, is that the government's decision to make drugs illegal has a large and ongoing affect on the economy, at both the state and federal levels.

Finally, consider one additional benefit to the Tea Partiers that would come from an embrace of drug legalization. It is well documented that the drug war has been particularly damaging to minority communities, for a variety of reasons. If the Tea Partiers were to champion a cause on a principled basis (federalism, laissez-faire, personal liberty), and that cause happened to benefit minority communities most directly, they would be able to claim -- quite rightly -- that they are not simply grousing about paying their own taxes but are, instead, willing to take a stand in the name of liberty that also benefits minorities.

I am not holding my breath, of course. Even so, the alignment of interests is striking. If the Tea Partiers believe what they are saying, this is a golden opportunity to stand by their stated principles.