Path for Marijuana Policy Gets Clearer in Congress

By Erin Durkin for NationalJournal

“I think for those who are opponents of this issue, there’s a strong federalism component that underlies it that makes it a lot, I think, easier to swallow. It basically says, ‘This is a state’s right to decide this policy and the federal government is going to take a hands-off approach.’” - David Mangone

Cannabis advocates can see the path for federal policies on marijuana clearing as key opponents got smoked out of Washington last week.

Former Attorney General Jeff Sessions, who was well known for his anti-marijuana stance, was ousted from his position on Wednesday. But for pot advocates, the midterms sparked an even bigger celebration as Rep. Pete Sessions, who is blamed for blocking several pieces of cannabis-related legislation, lost his bid for reelection in Texas.

Now that the House has flipped to a Democratic majority, advocates are hoping a proposal that allows states to develop their own approach to marijuana regulation could find momentum.

“The change from Republican to Democratic control is going to be really meaningful just in terms of who is most likely to chair relevant committees, whether it’s Judiciary or Energy and Commerce—especially the Rules Committee,” said John Hudak, deputy director of the Center for Effective Public Management at the Brookings Institution. “These are committees that Republican leadership used as gatekeepers to block cannabis legislation, and I think under a [Nancy] Pelosi-run Democratic controlled House, those will certainly be lifted.”

While Jeff Sessions got attention for his anti-marijuana rhetoric, advocates and experts say he did not end up doing much on the issue. Instead, Pete Sessions proved much more effective in stymieing progress at the federal level, blocking proposals from being considered on the House floor as chair of the Rules Committee, they say.

“He was a significant roadblock to marijuana policy reform measures reaching the House floor, so that’s perhaps the most significant difference or at least the clearest-cut difference,” said Mason Tvert, spokesperson for the Marijuana Policy Project.

“A lot of the measures that he held up were appropriations amendments, and these are measures that would, for example, prohibit the Justice Department from using funds to interfere in state laws that regulate marijuana for adult use,” Tvert added.

The Texas Cannabis Industry Association urged Texans to vote against Sessions during this election cycle, which ended with his loss to Democrat Colin Allred. “As chairman of the House Rules Committee, since 2016 Pete has blocked 36 cannabis-reform bills including bipartisan legislation for banking, veterans, patient protections,” stated a video the group shared last month. “It’s time we the people unseat Pete.”

Hudak suggested that the congressman’s intense opposition to marijuana reform contributed to his defeat. “Pete Sessions was the No. 1 enemy to cannabis reform in the United States Congress,” he said. “Part of the reason he was defeated—he was in a vulnerable district, but part of it was marijuana advocacy organizations and advocates themselves donating funds to help defeat him. I think it is the first example of cannabis advocates really flexing their electoral muscles outside of ballot initiatives, but actually openly declaring war on a sitting member of Congress because of his opposition to and active blocking cannabis-related legislation.”

Sessions did not respond to a request for comment.

With Sessions removed, advocates and experts anticipate having some traction in the next Congress with legislation cosponsored by Republican Sen. Cory Gardner and Democratic Sen. Elizabeth Warren.

The bill would allow states to determine the best approach to marijuana, with a few restrictions in place, such as not allowing the sale of marijuana to people below the age of 21 except for medical purposes.

The proposal could possibly appeal to congressional members who are not proponents of marijuana legalization, said David Mangone, director of government affairs at Americans for Safe Access. “I think for those who are opponents of this issue, there’s a strong federalism component that underlies it that makes it a lot, I think, easier to swallow,” he said. “It basically says, ‘This is a state’s right to decide this policy and the federal government is going to take a hands-off approach.’”

Democratic Rep. Earl Blumenauer of Oregon said on a press call last week that he can see legislation allowing marijuana businesses access to banking services, among other measures, as something that could move forward in the Senate.

“When we start sending legislation to the Senate ... you may find that there are people over there that will willingly embrace it,” Blumenauer said, adding that there were growing marijuana markets in states that need access to the banking system, including the ability to hold bank accounts, use credit cards, and write checks. Right now, banks that provide these services to marijuana businesses could face federal prosecution.

Blumenauer sent House Democratic leaders a memo earlier this fall about actions that need to be taken by the Democratic majority on marijuana legalization. If full legalization cannot be achieved right away, resolving this banking issue for cannabis companies is another step lawmakers could take in the meantime.

“Although 31 states have legalized medical marijuana, because it is still a Schedule I drug federally the majority of traditional banking institutions refuse to work with cannabis-related businesses,” he wrote before Utah and Missouri legalized medical marijuana and Michigan legalized adult recreational use through ballot measures on Election Day. “These businesses are often forced to operate as cash only, while at the same time missing out on the traditional financial and lending opportunities available to other businesses. Not only is this bad for business, it is a public safety issue.”

The departure of Jeff Sessions from the Trump administration will not bring as much of an impact, although stocks for marijuana companies spiked the day of his resignation. Hudak, Mangone, and Tvert said that the former attorney general's anti-pot stance—and even his reversal of Obama-era guidance that had encouraged prosecutors not to go after state-allowed cannabis businesses—did not result in more enforcement action.

Marijuana policy on the federal level could offer an easy win to Congress and President Trump if they choose to move on the issue, Hudak said. Trump said in June he would “probably” support Gardner’s and Warren’s legislation.

“This is an easy one; this is not hard,” Hudak said. “These are easy wins that Pelosi can chalk up, that effectively every Democrat running for president in 2020 is going to have a pro-reform position on, that the Senate can say, ‘Hey, look, we can work with the House,’ and that the president can say, ‘Hey, I’m signing legislation, and I’m signing legislation on an issue that two-thirds of Americans agree on if it’s recreational, or 90 percent of Americans agree on if it’s medical.’”