As election season is rolling in upon us, you may be wondering which political party is doing more to support cannabis legalization.  While support for cannabis legalization is increasingly bipartisan, it’s helpful to look at the most recent cannabis legislation, exactly what each party has done so far, and who is working on what to protect cannabis.

Recent Legislation

A significant piece of legislation was passed by the House of Representatives in late June.  The bill prevents the Department of Justice from interfering with cannabis laws in the states, Washington, D.C., and the U.S. territories.  This bill expands the existing policy (first enacted in 2014), that protects local medical cannabis laws from federal intervention.  The bill was passed by a floor vote of 267 to 165.

Political Director of NORML (the National Organization for the Reform of Marijuana Laws) Justin Strekal said of the bill’s passage, “Today’s action by Congress highlights the growing power of the marijuana law reform movement and the increasing awareness by political leaders that the policy of prohibition and criminalization has failed.”

Executive director of the National Cannabis Industry Association Aaron Smith stated that the vote “without a doubt the biggest victory for federal cannabis policy reform to date, and a hopeful sign that the harmful policies of marijuana prohibition will soon be a relic of the past.”

The bill was sponsored by Representatives Earl Blumenauer (D-OR), Eleanor Holmes Norton (D-DC) and Tom McClintock (R-CA).  

Who were some of the representatives that were against the bill?  Representative Robert Aderholdt (R-AL) spoke out against the bill during the floor debates.  He said, “This proposal would prevent federal law enforcement from enforcing current law, from protecting public health and ensuring community safety…Claims of benefits from smoked or ingested marijuana are anecdotal and generally outright fabrication. It is established by fact that such marijuana use has real health and real social harms…This amendment that’s before us sends the wrong message about widely abused drugs in the United States.  The amendment ignores the problems of abuse and sends the false message to youth that smoking marijuana is healthy.”

The bill will now have to pass the Senate.  The general consensus between lobbyists, advocates, and lawmakers is that three Republican Senators currently stand as “gatekeepers” to any federal cannabis legislation.  These senators are: Mike Crapo (Idaho), Lindsey Graham (South Carolina), and Majority Leader Mitch McConnell (Kentucky).

For a bill to get to the floor for a full Senate vote, it needs to pass the House and then be seen by a Senate committee.  Whether a committee hears a bill is up to the committee chairmen.  Senators Crapo and Graham are the chariment of the Senate Banking and Judiciary committees, which are the two committees that are most likely to see cannabis legislation.

Once a bill passes a Senate committee, it needs to go to the senate floor.  One way the Senate can take up a bill is by agreeing to a motion to proceed to it. A senator, typically the majority leader, will make a motion that the Senate proceed to a certain bill.  Then Senate can then normally debate the motion to proceed. If it eventually agrees to the motion by a majority vote, the Senate can then begin consideration of the bill.  Alternatively, the majority leader can ask unanimous consent that the Senate take up a certain bill. If no one objects to such a request when it is made, then the Senate can immediately begin consideration of the bill in question.  If the bill passes a committee, it will be up to Majority Leader Mitch McConnell.  It remains to be seen whether this bill will make it to the Senate floor in time for a vote.

If no cannabis legislation is passed by the time a new congress arrives in January 2021, the whole process of bill introduction, committee hearings, committee votes, House votes, and Senate votes, will have to start from the beginning. 

Republican Policy

Our Republican president, Donald Trump, has been fairly silent about the cannabis issue.  However, some believe that President Trump may make cannabis legalization one of his key issues in the 2020 election to gain the support of younger voters.  

Analyst Michael Lavery of investment firm Piper Jaffray wrote a note stating that he expects small steps toward federal cannabis legalization and full U.S. legalization within two to five years.  Lavery wrote, “By supporting cannabis, Trump may be able to incrementally broaden his appeal with swing voters without alienating his base.”  Lavery noted that whether President Trump decides to support or oppose cannabis legalization may depend on which candidate the Democrats choose to run against him.  He gave the example that if Senator Elizabeth Warren, who has sponsored legislation to protect states’ rights to legalize cannabis, is Trump’s opponent, he may oppose it to differentiate himself from her, even though he has supported the idea in the past.

While the prior United States Attorney General, Jeff Sessions, was a vocal opponent of cannabis legalization, current U.S. Attorney General William Pelham Barr has indicated that he may be open to the idea of a federal law that protects state-legal cannabis program.

At an April 2019 Senate appropriations hearing, Barr said that he personally would still favor one uniform federal rule against cannabis.  However, he also indicated that he is open to the approach outlined in legislation such at the STATES (Strengthening the Tenth Amendment Through Entrusting States) Act.  

Barr said, “Personally, I would still favor one uniform federal rule against marijuana….but if there’s not sufficient consensus to obtain that, then I think the way to go is to permit a more federal approach so states can make their own decisions within the framework of a federal law so we’re not just ignoring the enforcement of federal law.”

The STATES Act would carve out an exemption in the federal Controlled Substances Act for state-legal cannabis programs.  Barr circulated the legislation to the U.S. Department of Justice for review and comment.

When Attorney General Barr was going through his confirmation hearings, he was asked about the Cole Memo, which was put in place during the Obama administration to protect cannabis businesses that were legal within their home states.  This policy was later rescinded by Attorney General Jeff Sessions.

Barr said that he would not go after cannabis businesses that had previously relied upon the Cole Memo.  Barr stated that The Justice Department is “operating under my general guidance that I’m accepting the Cole Memorandum for now, but I’ve generally left it up to the U.S. Attorneys in each state to determine what the best approach is.  I haven’t heard any complaints from the states that have legalized marijuana.”

Democratic Candidates views

What do the 2020 Democratic candidates think about cannabis?  Nearly every candidate agrees that cannabis should be removed from the federal list of controlled substances and has offered support for the federal legalization of recreational cannabis.  Many of these candidates have called to expunge federal charges for those who have been prosecuted for cannabis use.

Senator Cory Booker of New Jersey reintroduced a bill in February that would legalize cannabis nationwide, expunge federal convictions, and allow those who have been prosecuted for cannabis use to petition for shorter sentences.  Senator Booker first introduced his bill, entitled the “Marijuana Justice Act” in 2017, but it was not taken up for a vote.  Other Democratic presidential candidates have offered support for this bill.  Senator Kirsten Gillibrand of New York, Senator Kamala Harris of California, Senator Elizabeth Warren of Massachusetts, and Senator Bernie Sanders of Vermont are co-sponsors of this bill.  While Senator Booker’s bill has widespread support from Democrats, it will still face some challenges.  Last year, Senate Majority Leader Mitch McConnell (Republican) of Kentucky said that he did “not have any plans to endorse the legalization of marijuana.”

Senator Elizabeth Warren sponsored the STATES Act, which would prevent the federal government from interfering with states that have already legalized cannabis.  Senator Cory Gardner is the co-sponsor of the bill.  The STATES Act — or the “Strengthening the Tenth Amendment Through Entrusting States” Act —ensures that each State has the right to determine for itself the best approach to cannabis within its borders.  The act amends the Controlled Substances Act (21 U.S.C. § 801 et seq.) (CSA) so that, as long as states and tribes comply with a few basic protections, its provisions no longer apply to any person acting in compliance with State or tribal laws relating to the manufacture, production, possession, distribution, dispensation, administration, or delivery of cannabis.

While Democrats seem to be leading the way with pro-cannabis legislation, Republicans are also beginning to show their support for cannabis legalization.  With the increasing bipartisan support of cannabis, it appears that it will only be a matter of time until cannabis is fully legal within the United States.

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