How GOP Art Herzberger helped me create Colorado’s first medical marijuana program


Every political candidate, irrespective of party, is frequently asked whether they will support or oppose various policies or spending priorities. Many of these queries are easy to answer, while others produce the kind of evasiveness demonstrated by Florida’s Republican Senator Marco Rubio, who was recently asked how old he thought the Earth was. His reply that he is not a scientist was a transparent dodge, and not a very artful one at that. Whenever public discussions stray into the realm of moral values and religious beliefs, politicians are quick to crank up their fog machines. However, with a little forethought, or instinctive genius, responses can be crafted that mollify, if not entirely satisfy, both sides in contentious conflicts. Bill Clinton brilliantly parried the abortion question during his 1992 presidential campaign when he called for the procedure to remain both legal and rare.

Promises to cut your taxes, ade-quately fund and improve your schools, fix your roads and root out bureaucratic red tape attest to a politician’s preferences. They do not include a commitment to introduce or defeat specific legislation. These assurances are no more than an expression of a candidate’s personal predilection, all things being equal, to come down on one side or another of a generic debate. Voters rarely hold elected officials’ feet to the fire if taxes rise, their schools continue to rot or regulations insinuate themselves into their most trivial business decisions. They may prefer their elected representatives come down on one side or the other, but they recognize that legislating can be a complicated business. By contrast, a campaign commitment to assist a particular individual with a particular problem represents a promise of an entirely different order.

A politician who publicly commits to introduce legislation, or help fix a pothole, or negotiate a conflict between government and constituents has to follow through if he or she is to remain credible. It’s also good politics, and the reason why Congressional offices are quick to navigate the federal bureaucracy in the pursuit of constituent service, each staff deploying its own platoon of caseworker specialists who field voter complaints and then resolve quarrels with federal regulators. Reneging on such a promise can trigger a grassroots grumbling that grows into a seismic shift of attitude towards an incumbent. Effort, not success, is the measure of sincerity and commitment.

During my first race for the Legislature, in 1978, I had the opportunity to speak to residents at the Maltese Cross apartments, a retirement residence for Denver firefighters and their families. A resident rose and explained she was undergoing chemotherapy for breast cancer and suffering profound nausea and loss of appetite, which often accompanies these treatments. She asked me why she couldn’t get marijuana to manage her symptoms when neighborhood kids could walk over to Colfax and purchase all they wanted. To make a long story short, I promised that if I were elected I would introduce legislation that would guarantee access to medical marijuana for her and patients like her. I was young and impulsive and thought this would be easy to do. How wrong I was!

Once elected, I received a call from this voter reminding me of what I had promised her I would do. So, I contacted the Legislative Council and Drafting offices to ask that they draw up a bill establishing a medical marijuana prescription program. On December 29, I was informed that my bill was scheduled for hearing on the first day of the session — just ten days away. I had no witnesses, no supporting evidence and no real corroboration that this was even a good idea. But, I already had plenty of opponents — Colorado law enforcement (both police and prosecutors), the Medical Society and the federal Drug Enforcement Agency, to name just a few. There was no Internet to research, so I headed for the University of Colorado’s medical school library. I soon discovered that Dr. Solomon Garb at National Jewish had conducted much of the research proving that marijuana was effective in alleviating the nausea associated with chemotherapy. His research laboratory was located at the old JCRS campus in Lakewood. He obtained his marijuana cigarettes from a federal farming operation in Mississippi.

He proved a small, wiry man in his early fifties with rimless eyeglasses and a perpetually amused demeanor. Delighted to learn of my bill, he told me he would round up an impressive panel of medical researchers to testify on its behalf. He kept his word, flying in two specialists, one from the National Institutes of Health, at his own expense. The Cancer Society identified several patients who could attest to the seriousness of the side effects from chemotherapy regimens, although the organization was unwilling to officially support the legislation. I was beginning to feel confident I had a story to tell. Then I learned through the Capitol grapevine that Art Herzberger, the Republican Chair of the Health Committee, had scheduled my bill simply to kill it. Art was a burly Colorado Springs businessman who would later serve in both the state Senate and as an El Paso County commissioner. My bill looked like a flaky, Denver Democrat’s rookie effort to introduce a backdoor route to pot legalization, and Art had scheduled it for a quick demise.

I never had a chance to speak to him before the hearing — it was, after all, the first day of the session. Following three hours of testimony, the Chairman announced he was taking my bill off the table and that there would be no action taken that day. House rules provided far more power and discretion to committee chairs then, than they enjoy today. I didn’t have the slightest idea what would happen to my bill, or whether I would even see it again. The Chairman could simply “pocket veto” any bill by refusing to return it to committee. Nearly two months slipped by without a word, when I unexpectedly received a note asking me to meet with him in his office. Art had not only been educating himself about medical marijuana, he had been rewriting my legislation, lining up the University Hospital pharmacy to handle prescriptions, and persuading his colleagues to support the bill. I had a re-written bill, a co-sponsor, and a legislative friend across the aisle.

Art told me he had, indeed, planned to kill my bill at that initial January hearing. But, after listening to the testimony, he had concluded there might be something to it. At the second hearing, no new testimony was permitted and the Chairman whisked our bill out of committee with a unanimous vote. We lost only a single vote on the floor of the House. Art had also been lining up Senate sponsors where our revised bill swiftly passed with just three dissenting votes. Colorado had its first medical marijuana program — tightly circumscribed and available only to the genuinely ill. It would remain available for more than a decade, until the federal government closed its farm operations in Mississippi and began to replace cigarettes with cannabinol pills. Reputedly they were not as effective for many patients, but the Drug Enforcement bureaucracy was confronted with an expanding public demand for medical access to marijuana.

Several years later, Art Herzberger’s wife Lucky was diagnosed with advanced breast cancer and experienced the adverse reaction so common among chemotherapy patients. Although she eventually succumbed to her disease, Art told me later that she responded well to the marijuana protocol, maintaining her appetite and strength for several good years. Although marijuana relieves nausea for about 90 percent of those in chemotherapy, Solomon Garb was not one of those. In his case, it was pancreatic cancer that led to an early death. A funny man to the end of his life, he joked that, even though he couldn’t hold his food down, at least he was too high to care. That wasn’t true, of course, but his patient advocacy provided relief to thousands who were helped by his research. Garb was well aware that marijuana was a mood-altering drug, and I don’t know what he would think of where we are today in Colorado.

Subsequent to Colorado’s voter approval of medical marijuana dispensaries, we discovered there was an unreported epidemic of chronic pain among young Colorado men between the ages of 18 and 35! Who knew? Or, was this, in many ways, a charade that paved the way for legalization? Today, Colorado faces the challenge of legalizing marijuana consumption for recreational use — ‘regulating marijuana like alcohol.’ Will there be abusers? Yes, there will. Will there be addicts? Probably. But, will this be any worse than alcohol — probably not. I’m reminded of Libertarian Presidential candidate Gary Johnson’s observation that, “I’ve met a lot of mean drunks in my life, but I don’t know a single nasty pothead.”

Miller Hudson served two terms in the Legislature from northwest Denver. He can be reached at

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