The promise of major cannabis reform made when Democrats captured Congress and the White House may be coming to fruition.
Last week, Sens. Cory Booker (D-NJ), Ron Wyden (D-OR), and Chuck Schumer (D-NY) released a statement announcing their intention to pursue “comprehensive cannabis reform legislation,” a draft of which will be released “in the early part of this year.” Following the statement, the group met with representatives from the cannabis industry to discuss equitable reform.
Yet obstacles to federal legalization remain, including a thin legislative majority and a president with a lukewarm record on marijuana. With input from industry experts, let’s take a look at some of the reasons that legalization may happen, and some of the roadblocks that could stop it.
Why Legalization Could Happen
Besides the new Democratic majority in the Senate, a number of factors could contribute to a loosening of federal laws on marijuana.
It’s Supported by a Supermajority of Americans
When it comes to cannabis, the will of the people is clearer than ever. Polling data by Gallup indicates more than two-thirds of Americans now support the legalization of cannabis. What’s more, 36 U.S. states or territories have approved medical cannabis programs, while 11 have legalized it for adult-use.
Chuck Schumer Controls the Senate
For the industry, new Senate Majority Leader Chuck Schumer, hailing from the liberal state of New York, is set to be a breath of fresh air from his predecessor. Even before Democrats took control of the Senate, Schumer was on record indicating that cannabis would be a priority for the new session of Congress. In 2018, he sponsored the Marijuana Freedom and Opportunity Act, to decriminalize cannabis federally.
His control over the upper chamber means advocates can worry far less about Senate leadership than they might have during the previous four years.
“At the very least, we’re going to very likely see hearings and committee votes in the Senate…they’re going to be talking about comprehensive reform,” said Morgan Fox, Media Relations Director at the National Cannabis Industry Association, during a phone call with High Times. “They’re going to be discussing comprehensive reform and hopefully voting on more incremental reform in the meantime.”
In an emailed statement, Amber Littlejohn, Executive Director of the Minority Cannabis Business Association (MCBA), agreed.
“With Leader Schumer and Senators Booker and Wyden at the helm I am hopeful we will take significant steps toward creating an equitable federal cannabis framework this Congress.”
Kamala Harris is in the White House
While the head of the U.S. Executive Branch isn’t a huge fan of legalization, the second-in-command has been a vocal advocate. In the Senate, Kamala Harris was co-sponsor of the MORE Act of 2019, legislation which was considered some of the most equitable cannabis reform ever in its original form. She often touted the importance of changing these laws as she campaigned against her future running mate.
While Vice President Harris has toned down the volume on her cannabis advocacy since joining Biden’s ticket, many believe she will help push the former “drug warrior” to more modern views.
“He has a big focus on criminal justice reform…and he’s proven that he’s capable of evolving on the issue,” said Fox. “I think that we can count on some influence from [Harris’] court if anything like that were to make it to the president’s desk.”
Why Legalization May Not Happen
Despite the positives, there are several obstacles that may prevent things from moving forward.
Fractions in the Party
Not only do Democrats have one of the smallest majorities in history, they may not have unity within. Joe Manchin, Democratic Senator from West Virginia, said this in 2017 when asked about cannabis:
“I talk to the addicts. I always ask, ‘How did you get started?’ Most told me they started out with recreational marijuana. Legalizing recreational marijuana is something I have not been able to accept or support.”
Sherrod Brown, senior Democratic senator from Ohio, has also expressed concern about legalization. In a 2018 interview with local media, Brown said:
“States that have legalized marijuana, we’ll see what happens in those states…If that means less addiction to more powerful drugs, or if it’s a gateway. And I don’t think we don’t know that yet.”
While Brown has been reticent towards legalization, as the new Chairman of the Senate’s Banking, Housing and Urban Affairs committee, he’s indicated some support for cannabis banking reform. But even if the Democrats can get their own party to agree on passing legalization, they’ll likely need some help from across the aisle…
Republicans in the Senate
Some in the GOP have expressed marginal support of cannabis legalization—five Republicans signed on as cosponsors of 2019’s SAFE Banking Act in the Senate—but the battle is still uphill. Just five party members in the House voted for last year’s historic MORE Act, while 158 Republicans voted against it and 34 abstained.
Because of Senate rules, comprehensive cannabis reform would likely require help from the GOP to achieve a 60-vote majority. Still, many believe bipartisan approval of cannabis reform is attainable—especially with a pandemic still wreaking havoc on the economy.
“There’s a lot of room for compromise that will make everybody happy,” said Fox. “I think more and more Republicans are going to be getting on board with comprehensive [cannabis] reform, both because it’s the right thing to do and because their base is increasingly embracing legalization…there’s a hunger for it—red states are hurting just as much as blue states when it comes to tax revenue and job creation. I think there’s a universal interest in this from an economic standpoint.”
Biden’s Past Record
Almost any other Democratic president would have been a lock to easily pass cannabis reform. But Biden, who is considered an “architect” of the American drug war of the 1980s and early ‘90s, hasn’t embraced legalization like the rest of his party.
In 2010, he called it a “gateway drug.” In 2014, while Vice President, Biden clarified that while the White House wouldn’t prosecute low-level cannabis offenses, “Our policy for our Administration is still not legalization.”
Biden’s modern stance on cannabis has been relatively consistent: It should be federally decriminalized and left to the states to legalize. But if a Democratic Senate decides to go beyond these basics, industry insiders believe the president won’t be a problem.
“[Biden] has proven that he’s capable of evolving on the issue…I don’t see any world in which Biden would veto a comprehensive descheduling bill with robust social justice reforms attached,” said Fox. “In the meantime, there are a lot of things he could do to get the ball rolling while Congress is debating…things like using the federal pardon power as a lead-in for expungement, or instructing the DOJ to reinstate the Cole Memo [protecting state markets from federal interference].”
Still, it’s hard to imagine cannabis being as much of a priority under Biden as it would have in a Booker or Sanders administration.
Last Friday, representatives from major cannabis organizations (including the MCBA and NCIA) met with Sens. Schumer, Booker and Wyden to discuss the path forward on cannabis policy. The group will release draft legislation soon, which will serve as a starting point for discussions. These steps are exciting, but industry leadership is clear-eyed about what lies ahead.
“This will be a long process. Unfortunately, social equity programs and operators hanging on by a thread don’t have that kind of time,” concluded Littlejohn in her emailed statement. “I am hopeful we can move forward while finding ways to address issues disproportionately impacting our community including lack of access to capital, small business services, and relief loans.”