Pot policy is suddenly a hot topic for federal lawmakers — and on the 2020 campaign trail
Illustration by Heads of State
Since the dawn of the Drug War,
federal legislators have stood by, or even applauded, as millions of
Americans have racked up convictions for marijuana offenses — with
arrests increasing in the latest FBI crime statistics, despite nearly a dozen states having already legalized cannabis.
But over the past two years, and now accelerating with Democrats in
charge of the House of Representatives, federal marijuana reform has
become a hot topic on the Hill. Congress
is weighing measures to tax and regulate cannabis; to open the federal
banking system to pot businesses; to allow the industry to claim federal
tax deductions; and, most powerfully, to repair the harms created by
generations of prohibitionist policies.
“The federal momentum around marijuana reform is at the
highest we’ve ever seen,” says Queen Adesuyi, who coordinates federal
policy for the Drug Policy Alliance. The issue has gained traction
across the political spectrum, from right-wing Alaska Rep. Don Young to
moderate Senate Minority Leader Chuck Schumer to left-wing superstar
Rep. Alexandria Ocasio-Cortez. Even former GOP House Speaker John
Boehner has joined the board of a marijuana firm. “It’s an unprecedented
moment,” Adesuyi says.
“It’s not a question of if we’re going to get a federal
law,” says Sen. Ron Wyden, a Democrat who represents pot-legal Oregon
and is the ranking member of the Senate Finance Committee. “It’s a
question of when.” At the national level, Wyden says, politicians are
eager to bring order to the new marijuana reality, as half a dozen
states, from Illinois to New Mexico, weigh legalization this year alone.
“People are seeing that we’re headed to a crazy quilt of state laws,”
he says, “and it would really make sense to have a federal, uniform set
of rules.”
The most surprising development is that congressional
efforts seem to have backing from Attorney General William Barr. In a
previous stint leading the Justice Department in the 1990s, Barr
authored a report titled “The Case for More Incarceration,” and he’s
made clear he opposes marijuana reform as a personal matter. But during
his nomination hearing in January, Barr vowed to end his predecessor
Jeff Sessions’ crusade against state-legal pot, citing industry
investments that were made under assurances by the Obama administration
that pot businesses were not a priority for federal prosecution.
Barr then threw down a challenge for Congress. “The
current situation is untenable and really has to be addressed,” he said,
likening state marijuana reforms to a “backdoor nullification” of
national law.
(Since the early 1970s, marijuana has been classified
under the Controlled Substances Act as a Schedule I drug, on par with
heroin.) “If we want states to have their own laws,” Barr said, “then
let’s get there. And let’s get there the right way.”
The “right way” is ripe for debate on Capitol Hill, and in the 2020 race for president.
Marijuana businesses have rallied behind a quick-and-dirty
bill that would give legal cover to the $10 billion industry. Sens.
Elizabeth Warren (D-Mass.) and Cory Gardner (R-Colo.), each hailing from
marijuana-legal states, have co-sponsored the Strengthening the Tenth
Amendment Through Entrusting States (STATES) Act, which was reintroduced
this month.
The STATES Act does not remove marijuana from the
Controlled Substances Act. But it does exempt pot-legal states from
federal marijuana enforcement, if they adhere to baseline standards. The
bill also tweaks laws to improve industry access to banking and to
grant pot businesses federal tax deductions. “It’s a very simple bill,
and I think that is the selling point,” says Michael Correia, director
of government relations for the National Cannabis Industry Association.
In March, a House committee voted to advance an even narrower bill, the
Secure and Fair Enforcement Banking Act; it would safeguard banks that
serve state-regulated pot businesses from charges of money-laundering.
Other reformers in Congress, however, reject this
industry-centered approach. They see pot businesses building on top of
the inequality created by the racist enforcement of the Drug War.
In
February, Rep. Barbara Lee (D-Calif.) introduced a nonbinding resolution
called “Realizing Equitable & Sustainable Participation in Emerging
Cannabis Trades,” or RESPECT, co-sponsored by Ocasio-Cortez, among
others. Noting that “less than one percent of the cannabis industry is
owned or operated by people of color,” the resolution calls on lawmakers
and the industry to address the “most egregious effects of the War on
Drugs on communities of color.”
The Marijuana Justice Act, introduced by Lee in the House
and Cory Booker (D-N.J.) in the Senate, likewise insists that the case
for legalization is rooted in the harms prohibition has inflicted,
disproportionately, on minority communities. “To say that we’re just
going to legalize and move forward, without addressing the damage that
has been done, without addressing the injustices that have been heaped
upon people, to me is unacceptable,” Booker tells Rolling Stone.
The Marijuana Justice Act begins by removing marijuana
from the Controlled Substances Act and making it legal under federal
law. It adds provisions to expunge arrest records for past marijuana
offenses, and offers a pathway to early release for many now behind
bars. Most controversially, the bill creates a reinvestment fund of at
least $500 million a year — a form of reparations for the communities
hit hardest by the Drug War.
Introduced with little fanfare last Congress, the bill is a
hot ticket today, gaining co-sponsorship by six of the 2020
presidential contenders in the Senate. “Too many lives have been ruined
because of the War on Drugs,” Sen. Kamala Harris (D-Calif.) tweeted in
February, declaring her “proud” support of Booker’s bill. “We must
change the system.”
Sen. Ron Wyden, D-OR and Sen. Cory Booker, D-NJ Photo credit: Alex Brandon/AP/REX/
Shutterstock, Steven Senne/AP/REX/Shutterstock
In gridlocked Washington, where funding the daily
operation of government is a heroic feat, near-term prospects for pot
reform are uncertain. Rep. Ro Khanna (D-Calif.), a lead sponsor of the
Marijuana Justice Act, says he’s “optimistic” the House can pass a bill
centered on legalization and record expungement. But he concedes, “There
is a generational issue. Some of the members are having a struggle. We
still have some convincing to do.”
In the Senate, roadblocks abound. “The Senate is not where
the House is,” says Wyden. But it’s not unthinkable that a bill could
advance. Adesuyi of DPA insists that Booker’s bill — building off the
success in the last Congress of the criminal-justice reform bill known
as the FIRST STEP Act — hits a bipartisan “sweet spot.” Gardner says
that the STATES Act, which has four GOP co-sponsors, can pass if it
reaches the Senate floor: “If it has a vote, it has over 60 votes.” He
believes Trump supports reform; others are skeptical. “It’s not like we
have Rand Paul as president,” Khanna says. “I don’t think we’re ever
going to get this administration on board, and that means it’s going to
have to be a new president that gets this done.”
Given that trajectory, reformers are thrilled the
Democratic field is rallying behind the Marijuana Justice Act. Khanna,
who co-chairs Bernie Sanders’ campaign, believes centering legalization
in the election will give the next Democratic president “a mandate to
implement change.” Booker, himself a candidate, insists the moral core
of his bill can help it transcend partisanship. “This is so much bigger
than presidential politics,” he says. “This has been a driving purpose
since I watched firsthand how privileged people could use marijuana
without fear of repercussion, and how poor kids and minority kids have
no margins whatsoever.”
If the Marijuana Justice Act is a statement bill —
designed to guide the national debate — other lawmakers are developing
detailed legislation to disentangle marijuana from federal criminal
statutes. In the House, Judiciary Committee chair Jerry Nadler (D-N.Y.)
is said to be working on a comprehensive legalization package. And from
his perch in the Senate, Wyden has introduced a series of bills that —
in a nod to the mythical numerology of stoner culture — start with
S.420.
Wyden’s bills offer a three-step path to the full federal
legalization, regulation and taxation of pot. The least controversial
bill, S.422, would normalize pot businesses under the IRS tax code.
Currently, because they’re “trafficking” in a federally controlled
substance, these firms cannot claim routine tax deductions. The next
step, S.421, systematically destigmatizes marijuana under federal law.
It would prevent people in state-legal businesses from getting arrested
or being hit with civil penalties; empower veterans, whose health care
is administered federally, to obtain medical marijuana in states where
it is legal; grant marijuana businesses access to banks; and create a
path for people with past marijuana violations to expunge their records —
opening access to federal housing and student aid, and guaranteeing
that marijuana isn’t a barrier for immigration and naturalization.
S.420 is the capstone bill. It would remove marijuana from the DEA’s schedules. In turn, the federal government would get a cut of pot revenues, through an excise like the government now imposes on alcohol. The bill would require all pot enterprises to register with the Treasury Department, as well as offer support to states that continue to ban marijuana and don’t want a flood of imports from neighboring legal states.
Wyden is optimistic that even conservatives are movable on
this issue. He points to a bipartisan victory in the last Congress: “It
wasn’t very long ago when I introduced the first hemp bill, but we
ended up in a relatively short period of time having a McConnell/Wyden
bill,” he says. “And it is now law.” Hemp is no longer governed by the
Controlled Substances Act, legalizing not only the industrial fiber but
also the market in CBD, expected to grow to $16 billion by 2025.
Advocates say the tipping point on federal pot policy
can’t be reached without intense public pressure. In a web broadcast
from his Senate office, Booker, with Lee, made a direct
appeal to the nation’s pot consumers. “If you are digesting an edible,
if you are smoking,” Booker said with a smile, “don’t think, ‘Hey, I’ve
got my rights.’ No. Please be concerned about all the people who are
suffering because of this prohibition.”
“If just the people who have used marijuana in the United
States of America got behind this bill,” Booker said, teeing up Lee to
finish the sentence, “we’d win tomorrow!”
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