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Democratic divide puts congressional action on marijuana in doubt
Washington, D.C., November 18, 2021
Tags: Jobs & the Economy
A split on Capitol Hill over marijuana policy has lawmakers confronting the possibility that they could again fail to pass any meaningful changes to the federal prohibition of cannabis this Congress, even as polls show vast majorities of Americans support at least partial legalization of the drug.
The clash, on one level, follows familiar contours for Washington policymaking: A narrower measure with significant bipartisan support — one that would make it easier for banks to do business with legitimate cannabis firms in states where marijuana is legal — is in limbo while a smaller group of lawmakers pushes for a much broader bill.
But it has also become infused with questions of racial equity and political competence that have pitted key Democrats against each other as they seek a way to roll back federal marijuana laws that have gone largely unchanged since the height of the War on Drugs in the 1980s and 1990s.
The conflict has come to a head in recent weeks after a push by Democratic and Republican lawmakers to attach the narrower banking legislation to the must-pass annual defense policy bill, which would ensure its passage in the coming months. The bill’s advocates say it would offer a substantial step toward legitimizing and rationalizing the cannabis industry in the 47 states that have moved to at least partially legalize marijuana — allowing businesses to move away from risky cash-only operations.
That push has hit a roadblock in the Senate, however, where Majority Leader Charles E. Schumer (D-N.Y.) has sided with Sens. Cory Booker (D-N.J.) and Ron Wyden (D-N.J.), who are seeking to assemble a comprehensive bill that would federally decriminalize the drug, tax it and potentially expunge the criminal records of those previously convicted of having bought or sold it. Passing the narrower bill, they argue, would make passing their broader bill more difficult.
“To me, it wouldn’t be a win,” Booker said Tuesday. “It would be a setback for expunging the records of all of the people who are waiting for some kind of justice. And unfortunately, if you do that, the pressure won’t be there to get it done.”
The senators say their bill aims to “end the decades of harm inflicted on communities of color,” with not only automatic expungement for nonviolent marijuana offenses but the establishment of a new fund that would invest specifically in minority communities targeted in the War on Drugs and support “socially and economically disadvantaged individuals” seeking to enter the legal cannabis industry.
Those pushing for a narrower bill, Booker added, “are doing a big disservice to our ability to get restorative justice principles passed, and it’s really unfortunate they can’t see the urgency for the millions of Americans who are carrying criminal charges for nonviolent drug offenses involving marijuana and have had their lives destroyed because of a war on marijuana that has disproportionately impacted people of color.”
But the senators have not yet secured 50 firm votes from fellow Democrats for that sweeping proposal, let alone the 60 bipartisan votes they would need to vault a likely Republican filibuster. And those advocating for swift passage of the narrower bill, known as the SAFE Banking Act, say that the time has come for Congress to start chipping away at the federal marijuana prohibition — starting with the places where there is bipartisan consensus to do so.
That bill would offer protection to financial institutions that do business with state-licensed marijuana businesses and would otherwise be subject to prosecution for “aiding or abetting” the violation of federal drug and money laundering laws. The bill has the backing of the American Bankers Association and numerous other cannabis and financial-industry trade groups. It has already passed the House five times in various forms, including a 321-101 vote in April, with 106 Republicans in support.
Earlier this month, 23 governors, including four Republicans, and D.C. Mayor Muriel E. Bowser urged congressional leaders to pass the bill as part of the yearly defense legislation. The House included it in their version, which passed in September, but due to Schumer’s opposition, it is not expected to be included in the Senate bill, which could pass as soon as this week.
Rep. Ed Perlmutter (D-Colo.), who has introduced versions of the banking bill since 2013, said he supports the racial justice goals that Booker and Schumer are espousing, and he voted in favor of a much broader House decriminalization bill last year. But he said the narrower bill offers a “Goldilocks” approach at a moment where narrow margins and polarized politics make any progress tricky.
“For some Republicans, the bill is too big and too broad. It’s too narrow and too limited for some Democrats over there” in the Senate,” he said. “But, really, it’s just right to be the icebreaker to start moving some cannabis legislation forward.”
Republicans are warning that broader legislation simply can’t pass the Senate, and that the narrower bill could be at risk as well if the GOP retakes the majority of either chamber in next year’s midterm elections.
Sen. Rand Paul (R-Ky.), said the SAFE Banking Act would garner 10 to 15 Republican votes if it came directly to the Senate floor this year. Broader legislation, he suggested, would not get any.
“I’ve told [Democrats], if they want full legalization, they can have that vote — it will fail, and then we should do this,” he said. “They’ve got to get it done. If the Republicans get back in charge, which I think we will, the bills are never going to happen because our leadership doesn’t like them.”
But Democratic leaders are confronting not only the need to act on an issue of rising national consensus — 91 percent of U.S. adults surveyed by the Pew Research Center in April said marijuana should be at least partially legal — but also a rising sensitivity to the racial implications of America’s drug laws.
At a news conference on marijuana legislation in July, Schumer acknowledged the poor optics of passing only the banking legislation while leaving expungement and other provisions aimed at racial equity behind.
“Communities of color have paid such an awful price for the historical overcriminalization of marijuana that we want to make sure that that money goes back to them,” he said, adding that Democrats didn’t want “the biggest, strongest banker … to just scoop it all up.”
Maritza Perez, director of national affairs for the Drug Policy Alliance, which is pushing for comprehensive decriminalization and restorative justice legislation, said Congress would be making a mistake to respond to the changing national attitudes on marijuana by simply making it easier for moneyed interests to do business in the $17 billion legal cannabis market.
“People aren’t saying, ‘We want relief for bankers,’” she said. “People are saying that people shouldn’t go to jail and be arrested for marijuana. So if the Democratic Party wants to do something … they should think about marijuana through a criminal justice lens, because that’s what people are irritated about. It’s not all these banking issues.”
She added that she and advocates are wary of repeating a familiar pattern to civil rights activists: being asked to accept half a loaf now and the promise of another loaf that may never arrive.
“We’re always told to wait. We’re always told that our needs will eventually be met. And then years later, we find ourselves still waiting,” Perez said. “I don’t want to see that kind of situation happen with marijuana.”
But cannabis industry representatives say it is a mistake to look at the SAFE Banking Act as only benefiting the financial industry and well-capitalized white-owned cannabis firms. Federal prohibition has disproportionately starved minority-owned businesses of capital, said Amber Littlejohn, executive director of the Minority Cannabis Business Association, which favors passing the narrower bill as soon as possible.
Many states have set up programs to help minority entrepreneurs gain a foothold in a market that has become increasingly dominated by private-equity investors and a handful of publicly traded companies. But those programs have largely foundered due to the banking obstacles, Littlejohn said, and she fears that few, if any, minority companies will survive till Congress acts on a comprehensive bill.
“If there were a path that Booker and Schumer could identify forward to reform, we would be all for it,” she said. “But I think if we are looking at this realistically … We potentially have another three years or longer that we will be waiting to try and get relief for folks.”
Littlejohn and other advocates argue that there are plenty of other issues that Republicans would be willing to negotiate on even with the banking issues taken off the table. The SAFE Banking Act, for instance, doesn’t resolve tax or regulatory issues that many Republicans are eager to address, as demonstrated in a new GOP decriminalization proposal from Rep. Nancy Mace (R-S.C.).
But, for now, senators are following Schumer’s lead. No senator has filed an amendment to add the banking provisions to the defense bill, even as some wearily admit the legislation is needed.
“As long as Sen. Schumer and Sen. Booker are opposed, it’s not going to happen,” said Sen. Jeff Merkley (D-Ore.), who has introduced the SAFE Banking Act in the Senate and is now exploring whether racial equity provisions could be added to the bill without losing GOP support.
Action, Merkely said, is needed in any case: “If you like people robbing each other or if you like money laundering or you like organized crime, this current system is great. But if you actually want to protect small business people, we need to pass this bill.”
Content originally published by The Washington Post on November 18, 2021.