The debate over how, not whether, Congress should legalize marijuana is heating up
Marijuana Moment is a wire service assembled by Tom Angell, a marijuana legalization activist and journalist covering marijuana reform nationwide. The views expressed by Angell or Marijuana Moment are neither endorsed by the Globe nor do they reflect the Globe’s views on any subject area.
With a congressional committee holding a first-ever hearing on ending federal marijuana prohibition on Wednesday, debate among legalization advocates over which piece of cannabis reform legislation would be the most effective and politically achievable is intensifying.
A key part of that conversation concerns the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, which would amend the Controlled Substances Act to exempt state-legal marijuana activity from federal enforcement actions.
Advocates broadly agree that passage of the STATES Act would represent a momentous development in the reform movement, providing protections for many marijuana consumers and businesses in legal states. But questions remain about what specifically the legislation would accomplish and whether it goes far enough.
Moreover, there’s disagreement about whether lawmakers and activists should invest their political capital and efforts into the bill when several others on the table — such as the Marijuana Justice Act, the Marijuana Freedom and Opportunity Act, and others — would make broader changes to federal drug policy and include social equity provisions that are increasingly seen as vital components of any reform agenda.
For some advocates, the path to ending prohibition doesn’t lead to the STATES Act. Instead, it leads to more comprehensive reform legislation à la the Marijuana Justice Act, a bill introduced by US Senator Cory Booker that would not only remove cannabis from the Controlled Substances Act altogether — something the STATES Act doesn’t do — but also provide for record expungements and penalize individual states that carry out cannabis prohibition in a discriminatory manner by withholding certain federal funds.
Booker, a 2020 Democratic presidential candidate, cosponsored last year’s version of the STATES Act. But he withheld his signature from this latest version, stating that he would no longer consider marijuana reform proposals that don’t address social equity concerns.
The path could also lead to legislation from Senate Minority Leader Chuck Schumer, whose Marijuana Freedom and Opportunity Act would deschedule marijuana and apportion some tax revenue from legal cannabis sales to a grant program aimed at incentivizing participation in the industry by individuals from communities disproportionately impacted by prohibition. It would also set aside funding to support the expungement of cannabis convictions.
A less-talked-about bill from US Representative Tulsi Gabbard, another 2020 presidential contender, would also remove cannabis from the Controlled Substances Act — and with US Representative Don Young as an original sponsor, it is uniquely bipartisan descheduling legislation.
House Judiciary Committee Chairman Jerrold Nadler is also said to be crafting a far-reaching marijuana bill that is expected to include social equity provisions, though details are scarce, and advocates expect it will be filed sometime in the wake of this week’s hearing.
The STATES Act, by comparison, is a modest reform proposal that social justice activists have argued is inadequate, especially as momentum builds across the country for wide-ranging measures that place an emphasis on equity.
That momentum was on full display Tuesday, as 10 leading civil rights and criminal justice reform groups including the ACLU announced that they’d formed a coalition in order to advocate for comprehensive marijuana legislation. Among other things, the Marijuana Justice Coalition said that any reform plan should involve descheduling cannabis, expunging the records of those with past marijuana convictions and investing revenue from legal sales into communities that have been disproportionately impacted by prohibition.
However, proponents of passing the STATES Act aren’t arguing that Congress shouldn’t pursue bills like the Marijuana Justice Act. Rather, says Cannabis Trade Federation CEO Neal Levine, it’s a matter of timing and political calculus about what kind of reform is achievable and can help stop many ongoing harms of prohibition in the short term.
Levine, who previously served as the director of state campaigns and policies at the Marijuana Policy Project, said his organization and its allies have a strategy in place proven to get positive cannabis reform legislation enacted.
“We passed as much as we could as fast as we could and we built upon it,” he said, referring to incremental cannabis bills that were passed in states and later expanded through more far-reaching reforms. “That is our general strategy.”
For the time being, the bill that stands the best odds of getting enacted into law is the STATES Act, he argues. There’s “not a lot of political will to go far beyond” that bill in the Senate today, and Levine said that if it does pass, it wouldn’t take the wind out of the sails of broader reform legislation; it will add to it.
“What we want to see is the full end of prohibition with full expungements. Period,” Levine said. “If we took a whip count of the US Senate and we found that the Marijuana Justice Act had 60 votes and a credible path, we’d be all in on the Marijuana Justice Act. We want to see prohibition end.”
Other advocates are concerned that with only so much time left on the congressional calendar, and an uncertain Capitol Hill and White House situation going forward after next year’s elections, they may only get one bite at the apple to change federal cannabis laws for the foreseeable future — and the STATES Act isn’t the one.
The STATES Act is, by most measures, one of the most practical pieces of marijuana reform legislation that stands any chance of being enacted in the 116th Congress. It has a states’ rights focus that has engendered bipartisan support, with notable Republicans signed on as original cosponsors for both the House and Senate versions. US Senator Cory Gardner and US Representative Dave Joyce are behind the bill, and both can exercise influence in their respective chambers to get it out the gate and onto the president’s desk.
That leads into another significant factor: President Donald Trump has said that he “really” supports the STATES Act. Following conversations with Trump on the issue, Gardner said he was left with the impression that there is “an ally in the president on this” and that he’d be inclined to sign the bipartisan bill.
The Colorado senator’s advocacy for the legislation could also open an essential window for advancement in the Senate, which is overseen by Majority Leader Mitch McConnell, a vocal proponent of hemp but a staunch opponent to the crop’s “illicit cousin” marijuana. McConnell might be compelled to bring the bill to a floor vote if he’s thinking strategically about how to minimize Gardner’s 2020 reelection risks in Colorado by giving him a win to bring home to voters who want the federal government out of the way of their state’s cannabis laws.
While it is far from certain that McConnell will end up allowing the STATES Act to advance under his watch, it seems much more unlikely that the Senate leader would be willing to give that courtesy to even more wide-ranging legislation focused on social equity.
The STATES Act also received an unexpected tacit endorsement in April: Attorney General William Barr said that while he does not support legalization, he would prefer for the modest reform legislation to pass rather than maintain the status quo of conflicting state and federal laws.
There are some concerns about just how far the STATES Act’s protections would extend, though. Without explicitly descheduling cannabis, the plant would remain a federally controlled substance in any states that haven’t legalized it, potentially resulting in enforcement complications.
For example, would the legislation offer protections for immigrants seeking citizenship and who work in a state-legal market, which is currently grounds for having naturalization applications rejected under federal immigration policy?
One could argue that it would, as the STATES Act specifies that conduct described in the legislation, including the manufacturing, possession, distribution, dispensation, administration, or delivery of marijuana in states where it’s legal, “shall not be unlawful.” But because the federal government would still regard cannabis as illicit and the bill doesn’t provide specific protections for immigrants, some question what practical impact, if any, the STATES Act would have.
Separately, some have raised questions about what the STATES Act would do to resolve banking issues in the cannabis industry.
The bill does note that “proceeds from any transaction in compliance with this Act and the amendments made by this Act shall not be deemed to be the proceeds of an unlawful transaction,” but there are still questions about how it would impact banks that operate in multiple states and transfer cash between branches, including those situated in jurisdictions that still prohibit marijuana.
While advocates hold differing views on the best next step toward advancing cannabis reform, one possibility would be to try a dual approach, pushing the STATES Act to a vote in the Senate while the House weighs a broader bill like the Marijuana Justice Act. Such activity could open dialogue between the chambers about potential compromises, or at least push social equity provisions closer to the forefront of the conversation.
Michael Collins, director of national affairs at the Drug Policy Alliance, said that, in his view, “there’s recognition that we can do better than STATES” among Democrats.
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