With Democrats set to control both houses of Congress, the cannabis world is giddy at the prospect of federal reform. But even with strong support from Democrats, and a smattering of Republicans, huge questions remain about what, if anything, will be accomplished in the legislatively.
The first and most important question involves what’s possible. Is federal legalization on the table as some advocates say? Or will they and their Congressional allies settle for more modest measures such as banking access for the industry or the end of hated tax rule 280E?
The clock is ticking. Democrats hold thin majorities in both chambers and Presidents typically lose ground in Congress during their mid-term elections. This gives supporters two years to make something happen through the notoriously fickle and unpredictable lawmaking process.
To better understand the state of play, I spoke to Michelle Rutter Friberg, deputy director of government relations for the National Cannabis Industry Association.
“Legalization “might really be here,” Friberg said, “but there’s not a lot of room for error.”
However, as more of the country, including deep red states like South Dakota and Mississippi, legalize cannabis in some form Friberg said there’s “absolutely” opportunity to pick up support from more Republicans as the issue becomes more relevant to their constituents. “We’ve seen that time and again,” she said.
Here’s how she described the situation as the 117th Congress begins:
U.S. House of Representatives
- The House of Representatives is poised to advance reforms. In December, the lower chamber passed the MORE Act, which would deschedule cannabis from the Controlled Substances Act, in a bipartisan vote. Months earlier it passed cannabis banking access by a wider margin.
- “There’s tremendous opportunity right now,” with possibilities including MED research, banking, criminal justice reforms and the More Act, or variations of it, Friberg said. She said the NCIA is speaking with its strongest House allies including Rep. Earl Blumenauer (D-Ore.), Rep. Barbara Lee (D-Calif.) and Rep. Jerry Nadler (D-N.Y.) about strategies for moving forward.
- The Senate is a “very different beast,” Friberg said. Among other issues, Senators tend to be older than their counterparts in the House and more likely to have absorbed anti-cannabis stigma while growing up in a “just say no” era.
- The rules are also different. Non-budget related bills need 60 votes — out of 100 Senators — to pass. “We definitely have our work cut out for us,” Friberg said.
- At the same time there are plenty of reasons for legalization supporters to be optimistic. Among them, Sen. Ron Wyden (D-Ore.) will chair the finance committee which is involved in tax issues. Friberg called him a “huge supporter” who understands the burden 280E imposes on the industry. Current banking committee chair Sen. Mike Crapo (R-Id.) who has been ambivalent about the industry’s access to the financial system will be replaced by Sen. Sherrod Brown (D-Ohio) “who has said some positive things.”
- “Getting [bills] to the floor is going to be a different story,” Friberg said. Republican Majority Leader Mitch McConnell (R-Ky.) never brought a cannabis bill to the floor for a vote, but incoming majority leader Sen. Chuck Schumer (D- N.Y.) has said he would make legalization a priority.
- Friberg said she thought banking reform would have passed the Senate if McConnell had allowed a floor vote.
The Executive Branch
- Once a bill passes both houses of Congress it needs the president’s signature to become law. President-elect Biden’s “stance is pretty clear,” Friberg said, “He’s not beating the door down for adult use legalization.” But she predicts he would sign the More Act, a bill spearheaded by vice president-elect Kamala Harris in the Senate.
- Executive branch agencies could also influence cannabis policy in numerous ways. The best known of these is probably the U.S. Justice Department, where pot-hating then-Attorney General Jeff Sessions rescinded the Cole Memo, which essentially protected state-legal cannabis activity from federal prosecution. (Even with the memo rescinded, the legal industry has not been cowering in fear of federal prosecution.) President Trump’s second attorney general William Barr pursued anti-trust actions against the industry out of a personal animus, according to a veteran federal prosecutor.
- The Drug Enforcement Administration (DEA), which is part of the Justice Department, has also been a thorn in the cannabis and hemp industry’s side. Friberg said Biden’s attorney general nominee Merrick Garland “doesn’t have too much of a track record” on cannabis, but seems far more acceptable to her members than Sessions.
- Other cabinet-level departments relevant to cannabis include Health and Human Services and the Veterans Administration.
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