The Future of State Psychedelic Policy: 5 Questions for attorney Dave Kopilak

Kopilak discusses the pros and cons of ballot initiatives and legislation, and the future of state-by-state psychedelics reform.

In the mid-2010s, Dave Kopilak drafted Oregon’s Ballot Measure 91, which made recreational cannabis state-legal. Kopilak is a business lawyer and co-founder of Portland-based Emerge Law Group and he always saw psilocybin as the logical next step for drug reform. Then in 2017, a colleague introduced him to Tom and Sheri Eckert, the married therapists who were trying to develop a ballot measure for Oregon’s 2020 election. Kopilak began attending their meetings - the first in a church basement in southeast Portland, attended by around 40 people who dropped $5 bills into a fundraising basket during meetings.

That ballot measure eventually became Measure 109, which established what is now Oregon Psilocybin Services, the country’s first state-regulated psilocybin access program. Measure 109 appeared on the 2020 ballot, passing with 55.75% of the vote. Kopilak drafted that legislation as well.

Kopilak has talked with activists across the country who are interested in advancing psychedelics reform in their states. Most recently, he worked on a piece of legislation in Washington state meant to replicate Oregon’s program. The Microdose spoke with Kopilak about the pros and cons of ballot initiatives and legislation, and the future of state-by-state psychedelics reform.

At a Psychedelic Science panel on state-by-state legislation, you said ballot initiatives were a better way of passing psychedelics reform than legislation. What’s your reasoning on that?

With a ballot measure or a piece of legislation, I think of what ends up being passed as the product: from that, an entire industry is going to start from scratch. If you go the legislative route, many factors shape that product. Legislators themselves are often reluctant to tackle controversial topics; they need to run for reelection, and even if they’re conceptually on board, they might be wondering how their constituents might react. And not only that, but there are also certain constituencies or interest groups that want to get their claws into legislation. They want a piece of the action. All those different interests water down the original bill as it goes through this committee and that committee. That process often results in a bill representing the lowest common denominator. By the time you satisfy everyone, it’s been death by a thousand cuts.

But if you draft a ballot measure, on the other hand, you can end up with a better product, and you let legislators off the hook. You’re essentially the founding fathers drafting the constitution. Of course, though, you need to have responsible drafters; there have been cases where the people have passed a measure and legislature has to step in, because the measure is unworkable, or in some cases, a flat out mess. But if you do it right, the measure will survive. Many controversial things have been passed in Oregon this way — death with dignity, cannabis, psilocybin.

So why, then, are we now seeing more psychedelics legislation than ballot initiatives?

The main counterpoint is that it’s more expensive. What I keep hearing from advocates is, “If we can only convince the legislature to introduce a bill, we’ll only have to spend money on lobbyists.” But a ballot measure is going to cost more because you’ve got to run a campaign, get signatures. You’re talking millions of dollars. But paying lobbyists could cost millions as well, and what you end up with in the legislature might not move the needle on reform at all.

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A prime example of that is what happened in Washington this last legislative session. Senate Bill 5201, when it was first introduced, proposed creating a psilocybin program similar to Oregon’s, but in the end, some local activists spoke out against it, urging for it to include language to decriminalize psilocybin as well. What happened?

I was initially tasked with putting together an outline for what I thought was a viable bill. Then the legislative consultants more or less took over - it’s their job to advise their clients on how to work through the legislative process, like who are the constituencies to talk with, what committee should we go to first, which lobbyists should we hire. They form an attack strategy to worm through the legislative gauntlet, pitching influential politicians, or universities and professional groups. You’re trying to herd everyone.

They’d come to me saying, this group wants this changed, or this other group wants this part taken out. That’s the thousand cuts - admittedly, it was less than a thousand - but that’s the nature of legislation, that’s the nature of lobbying. And then we started getting it from the other side, too; I think there were ways to work with those decriminalization activists beforehand, like pointing out that local decriminalization measures, like those in Tacoma or Seattle, would not be affected by this bill. But with bills like this you are always playing defense; you’re trying to pitch it to so many people with so many interests. And with Oregon’s 109, we didn’t really have to contend with that issue, because Measure 110, which decriminalized a whole bunch of drugs, was already on the table.

This year, New Mexico’s legislature passed a bill, and became the first state to make psilocybin legal in the state via legislation rather than ballot measure. What do you make of that approach -— could that be the future?

I think of this as a retreat to the medical model, which is a type of lowest common denominator. What got me excited about the Eckerts’ vision for Measure 109 was that it was non-medical; I think that if you believe psilocybin is potentially a good thing for medical conditions, the best way to make it actually accessible is through wellness legislation, not through a pharmaceutical or medical system. A wellness system is a good in between; you don’t need a diagnosis, per se, but it is still safe and legal. If you look at statistics after cannabis became legal, the 50+ crowd really glommed onto it; they didn’t have dealers, they didn’t have a way to get the drug before. I think the same thing is true with psilocybin; most people in that age group aren’t going to get psilocybin by going to some church run by hippies in a Tacoma warehouse. But they would, maybe, go for a session through a state wellness program.

Even in Oregon I think the wellness part of things is being left out now. So much of the industry is marketing to people who have real mental health conditions — and that may also be the result of how expensive sessions are.

What do you see as next in psychedelic policy — and what’s next for you?

With cannabis, it felt predictable what was going to happen; Oregon was the third state to legalize recreational marijuana and it felt like a row of dominos were falling. But with psychedelics, I truly don’t know. We could be stuck here for 15 years. It could all implode. Or we could just be looking at only programs using the medical model from now on, or we could continue with these state wellness models for accessibility. I recently wrote a proposed outline for state psilocybin legislation, which could create state systems that are cheaper than Oregon.

I also have recently contributed to a legal mapping guide on decriminalizing sex work, a new subject I’m becoming interested in starting conversations about. I remember back when I first started working on cannabis, half of my colleagues were freaking out and the other half would make jokes about it, but over time, as it became more normalized, there’s the opportunity to actually elevate the conversation around the topic. I think over time as people get more educated about it, conversations about sex work might also evolve.

This interview has been edited and condensed for clarity and length.