A Narrow Window Opens for National Cannabis Reform

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There’s a go-to suspense scene in movies that involves a person or a thing trying to make it  through a narrow space: a plane between two cliffs, say, or the Titanic worker under the watertight door. Such an image is one way to picture the chances for federal cannabis reform as President Joe Biden takes office, with a new, Democrat-controlled Congress.

So long as Mitch McConnell ruled the Senate, no cannabis bill stood a chance. Now, for the first time, the stars have aligned just enough to create an opening to a historic shift, somewhere between decriminalization and legalization. While Biden has stopped short of backing legalization, Vice President Kamala Harris does support it, and, as a Senator, she sponsored a bill to end the federal criminalization of cannabis. The House passed that bill in December, and would likely do so again, even with a slimmer Democratic majority post-Election Day. And, crucially, Senate Majority Leader Chuck Schumer supports all of the above. 

Things have changed. At the beginning of February, Schumer, along with Senators Cory Booker and Ron Wyden, announced that they are working on a cannabis reform bill that focuses on criminal justice. “The Senate,” they said, “will make consideration of these reforms a priority.”  

Still, putting aside the obvious counter pressures—Congress’s focus on COVID-19 for the foreseeable future, the sixty-vote threshold to avoid a Senate filibuster—there is another factor that could complicate the path forward. Multiple Cannabis Wire interviews centered on the prospects for federal reform leave a dominant impression: While proponents agree that the new Congress is promising, and offers a window for serious reform, they are not all on the same page about priorities and strategy. 

That was certainly the case in 2019, when the House moved to take up the SAFE Banking Act, a limited bill that would essentially lift the threat of federal enforcement against financial institutions that work with the still-federally-illegal industry that now spans dozens of states from coast to coast, for medical or adult use. It was the kind of bill that could have possibly, maybe, squeaked through a Republican-controlled Congress because it didn’t compel any lawmaker to outright support legalization. 

But national groups like the Drug Policy Alliance and the American Civil Liberties Union argued that the SAFE Act didn’t do enough. In a letter addressed to House leadership, those groups, along with a handful of others, shared concerns that the bill’s passage “will undermine broader and more inclusive efforts to reform our country’s marijuana laws,” and that the bill “would benefit the marijuana industry, not communities who have felt the brunt of prohibition.” 

In response, House Democrats committed to also vote on the legislation sponsored by Harris, called the MORE Act, a more sweeping bill that would end the federal criminalization of cannabis by removing it from the Controlled Substances Act, where it has remained in the same category for more than fifty years: Schedule I, the strictest. Ultimately, both bills passed out of the House, and both votes were historic firsts: SAFE as the first standalone cannabis bill, and MORE as the first cannabis descheduling bill. 

Despite unprecedented momentum for federal cannabis reform, the last Congress was a dead end for either of those bills given the makeup of the outgoing Senate. In other words, given Republican control, divisions among advocates didn’t matter in the end. In 2021, they might. 

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While Congress may be a more complicated matter, there is stronger agreement among advocates on strategy when it comes to pushing the Biden administration on reforms. Every group interviewed by Cannabis Wire called for an immediate reinstatement—and expansion—of the Cole Memo. The memo, issued under former President Barack Obama’s Department of Justice and rescinded under former President Donald Trump’s, promised a hands-off approach to state-legal cannabis activity by the federal government, so long as states were doing their part to, for example, keep cannabis out of the hands of minors and from crossing state lines. 

A new memo is clearly within reach. The 2020 Democratic Party Platform declares that “states should be able to make their own decisions about recreational use” and the “Justice Department should not launch federal prosecutions of conduct that is legal at the state level.” 

The platform goes further, suggesting that “all past criminal convictions for cannabis use should be automatically expunged.” But, it excluded several advocate priorities that were included in the recommendations issued by the Biden-Sanders Unity Task Force, which was formed to help establish the 2020 platform. For example, the removal of cannabis from “the list of deportable offenses” and a commitment to “encourage states to invest tax revenue from legal marijuana industries to repair damage to Black and brown communities hit hardest by incarceration.”

And, when it comes to legalization, the platform stops short: “Democrats will decriminalize marijuana use and reschedule it through executive action on the federal level. We will support legalization of medical marijuana.”

Ultimately, “these remedies are pretty limited,” Justin Strekal, the political director of the National Organization for the Reform of Marijuana Laws (NORML), told Cannabis Wire. “The simplest remedy, the most concrete remedy, and the most long-term remedy to ending the federal criminalization of marijuana is the same way it started: through legislative action.” 

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How such legislative action unfolds will determine whether there is yet another public divide among advocates on cannabis law reform priorities. Specifically, the likelihood of disagreement will be higher should there again be two standalone bills, like SAFE and MORE, that are competing for political energy. 

The bill that Schumer, Booker, and Wyden are working on, with its emphasis on “restorative justice” and the harms of the drug war, will likely build off of MORE. In a statement about this forthcoming bill, Representative Earl Blumenauer, who started and co-chairs the Congressional Cannabis Caucus, called MORE “a great foundation,” adding that he looks forward to “working with the Senate to refine the bill, advance its core principles.”

Such a disagreement might be avoided. Every group interviewed by Cannabis Wire that backs a push for cannabis banking reform said that a standalone bill, like the SAFE Act, is not the best path forward for that. Instead, the strategy they are pursuing involves getting the language of SAFE into the next COVID-19 relief bill. (It was included in COVID-19 legislation passed by the House in 2020; McConnell repeatedly criticized House Democrats for the inclusion.) 

This strategy, at least for David Mangone of the National Cannabis Roundtable and the Liaison Group, is less about avoiding divisions and more about pragmatism: the Democrats have control, but by the slimmest of margins, and more votes are needed than can be assumed. Given the current political climate, he argues, attaching cannabis language to a larger legislative package would give it “cover.” 

“Unless there is a change in Senate rules to eliminate the filibuster, they’re still going to need sixty votes to pass legislation” like SAFE, Mangone said. “I am not certain that with the slim margin that Nancy Pelosi will have in the House, as well as the threshold for sixty votes in the Senate, that you can get something that enough people will agree on. But I’m happy to be proven wrong on that.” 

It may well be that these factors shift the strategy for broader legislation like the MORE Act, as well. Steve Hawkins, the executive director of the Marijuana Policy Project, the organization behind many of the country’s first medical and adult-use cannabis laws, told Cannabis Wire that, considering Biden’s commitment to broader criminal justice reform legislation, “this is a moment for creativity.”

Cannabis, Hawkins noted, is still the number one “pretext” for why Black and brown youth get stopped by the police every day. “There’s a litany of no-knock drug raids where nothing was found but cannabis, and people have lost their lives in the process. 

“All these things will be front and center in how I think we will talk about and push for cannabis de-scheduling,” he added, “because if the administration is truly concerned about criminal justice reform and police reform, cannabis has been at the epicenter of how the US has waged the war on drugs for the last fifty years.”

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Still, there remains another scenario—that there are no bigger legislative packages to which to attach versions of either SAFE or MORE, and the path forward calls for standalone legislation. Such a scenario could resurface the split that was seen in 2019, in part because there is no consensus on whether Congress would be willing to take up, especially in the two year window that Democrats have a majority, more than one standalone cannabis bill. 

The answer, as far as Maritza Perez, the Director of the Office of National Affairs at the Drug Policy Alliance, is concerned, is no. 

“This is the whole reason that we’ve been pushing from the very beginning for the MORE Act to go first. Unfortunately, that’s just how Congress works. They’re going to throw their weight behind one bill, and if that were the banking bill, I think that would mean that the MORE Act would have a really rough chance of making it through Congress,” Perez said.

She worries that Congress might, for example, suggest waiting to assess the impact of cannabis banking reform before “passing something bolder” and, she added, “It would just be a shame to give Congress an out like that.”

The Drug Policy Alliance does not have an issue with what legislation like SAFE would do, Perez said. Its issue lies with what legislation like SAFE would not do. While proponents of SAFE have made the case that it advances equity by opening up access to capital for disadvantaged groups, Perez disagrees with this argument.

“It’s not enough. It’s piecemeal legislation. It does nothing for communities that have been harmed by the war on drugs. It does nothing for equity,” Perez said, adding that DPA will tell lawmakers that “anything less than the MORE Act is just insufficient.”

For these reasons, the Drug Policy Alliance does not support SAFE. Other groups interviewed by Cannabis Wire range from those that name legislation like SAFE as an immediate priority, like the American Trade Association of Cannabis and Hemp, to those that see legislation like MORE as a priority but would still support the advancement of legislation like SAFE.   

“These things aren’t mutually exclusive. We can work on all of them. I don’t think that we’re in a situation where there’s only going to be one shot to pass one cannabis bill,” Morgan Fox, communications director of the National Cannabis Industry Association, told Cannabis Wire. “I think that it’s going to be much more a situation of, you know, at what stage can we pass a bill like this, and at what stage can we pass a bill like that?” 

“Every time you pass a cannabis bill,” he said, “it makes it a little bit easier for lawmakers to stomach passing another one.” 

For the American Civil Liberties Union, the aims of the MORE Act remain a priority, and Cynthia Roseberry, deputy director of the ACLU’s Justice Division, told Cannabis Wire that she is hopeful that such a bill can pass through both chambers as standalone legislation. Should SAFE emerge as standalone legislation, Roseberry told Cannabis Wire that she thinks the ACLU would take a similar position to the one they held in 2019.  

Roseberry highlighted Vice President Harris’s support for the MORE Act as one reason—along with broad public support for criminal justice reform and cannabis legalization—that the bill, or a version of it, could pass. 

“The MORE Act addresses one of the largest contributors to the war on drugs, and the war on drugs is one of the largest contributors to the disparate treatment of Black and brown communities,” she said. “Biden said he wanted to redeem the soul of America. The MORE Act is one way to do that.”

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Meanwhile, however Congress proceeds, what comes next? A new cannabis-focused group has recently formed to focus on the regulation needed in tandem with the inevitable end of federal cannabis prohibition.  

Sheri Orlowitz, who sits on the board of the Marijuana Policy Project, founded the Council for Federal Cannabis Regulation, in part, because, “Right now, if the MORE Act passed, it’s like being caught with your pants down,” she said.

The federal government is ill-equipped, Orlowitz argues, to implement even the more incremental reforms the Democratic platform has laid out. For this reason, Orlowitz recently co-authored a memo that, according to its introductory text, “lays out a series of actionable efforts for a new administration to address cannabis policy—a complex area of law impacting dozens of federal agencies and the lives of millions of Americans.” (Her co-authors were Becky Dansky and Jack Jacobson, who started a group called the Safe and Responsible Banking Alliance, and John Hudak, a Brookings Institution fellow.)

The memo, which Orlowitz says has been shared with one of the leaders of the transition team who is a senior advisor to President Biden, culminates in a call for the establishment, via executive order, of a Presidential Task Force on Cannabis Reform and Justice. The Task Force would serve as a sort of “linchpin,” she said, between Congress and federal agencies, and would produce a report within six months that would drill down into the details of decriminalization—for example, identifying “which offenses/circumstances qualify”— and would make recommendations for future legalization-related regulation and legislation. 

Despite federal cannabis prohibition, there has been more cannabis-focused activity within federal agencies than ever before. The Centers for Disease Control and Prevention has established a “cannabis strategy” unit in an effort to centralize data on public health outcomes. The National Institute of Standards and Technology, within the US Department of Commerce, has established a Cannabis Quality Assurance Program, an effort to improve lab testing of cannabis products. And this doesn’t even take into account the extensive work on hemp, which is simply cannabis with .3% THC or less, and hemp-derived products, like CBD, that has taken place at the US Department of Agriculture and the US Food and Drug Administration ever since the 2018 Farm Bill legalized hemp.

Hawkins of the Marijuana Policy Project echoed the need to start thinking now about a regulatory framework for legal cannabis.

“There also has to be effort—and considerable effort—to think about what kind of regulatory structure, jurisdictional structure, tax structure,” Hawkins said. “You know, what’s the infrastructure that would be at the federal level around cannabis after descheduling?” 

“When it was something that was more aspirational, we didn’t have to give as much thought to that,” he added. “But now that it is much more of a reality, we have to make sure that we’re gearing up for that. And that’s, I think, where the next level of conversation is going.”

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