House Democrats Could End Federal Marijuana Ban in 2019. Will They?

A blueprint for overhauling federal marijuana policy and lifting the nationwide ban on marijuana by the end of 2019 is currently circulating among congressional Democrats. With Democrats projected to hold a majority in the House next year, the end of national marijuana prohibition could be in sight.

Rep. Earl Blumenauer of cannabis-friendly Oregon is asking fellow Democrats to prioritize sweeping marijuana reforms if they win control of the House in the midterms, including protections for veterans who use medical marijuana and efforts to address the harms caused by prohibition in communities of color. Legalization is imminent, Blumenauer warns, and if Democrats don’t champion cannabis now, then President Trump could take the credit.

“If we fail to act swiftly, I fear as the 2020 election approaches, Donald Trump will claim credit for our work in an effort to shore up support — especially from young voters,” Blumenauer wrote in a memo to Democratic lawmakers as legal marijuana sales began across Canada last week. “Democrats must seize the moment.”

Democrats have good reason to worry about a Republican shift in favor of marijuana-friendly policies ahead of Trump’s re-election campaign. Poll after poll has shown that a majority of voters across the political spectrum support marijuana legalization. A Gallup survey released this week found that public support for legalization has reached an all-time high of 66 percent, which includes a majority of Republicans and older voters as well as an overwhelming majority of millennial voters.

“Hopefully lawmakers are paying attention to this clear trend in public opinion,” said Steve Hawkins, executive director of the Marijuana Policy Project, a group backed by the cannabis industry, in a statement. “If they ignore these poll numbers, they do so at the risk of seeing a drop in their own.”

The number of states that have legalized marijuana for medical and recreational use continues to grow, leaving large swaths of the country at odds with federal law. Generally, a city or state can decriminalize marijuana without running afoul of federal statute by reducing criminal penalties for possession and encouraging police not to prioritize marijuana enforcement, but allowing legal sales at cannabis clinics and dispensaries is technically illegal under federal law. So is possessing and growing marijuana.

In the absence of federal reform, Blumenauer and other lawmakers have passed annual budget riders preventing federal law enforcement from making arrests where marijuana sales are legally regulated. Sen. Cory Gardner of Colorado and other Republicans from legalized states have put mounting pressure on Trump to contain Attorney General Jeff Sessions, who hates marijuana and has threatened to crack down on legalized markets while rolling out the administration’s tough-on-crime agenda.

Gardner has introduced a bipartisan bill that would exempt adults in states that pass legalization laws from the federal marijuana ban as long as weed regulations meet certain standards, an approach that is designed to appeal to conservatives. Under this proposal, transporting marijuana from legal states to those still under prohibition would remain illegal, along with sales to anyone under the age of 21.

It’s no secret that Trump and Sessions have not been getting along, and the president has said he would “probably” sign Gardner’s bill if it lands on his desk.

Meanwhile, leading Democrats — including high-profile senators eyeing presidential bids in 2020 — have introduced competing bills that would end federal prohibition altogether by removing marijuana from the list of drugs prohibited by the Controlled Substances Act.

“As marijuana legalization continues to gather momentum, the conversation has shifted from whether we’ll legalize to how we should legalize,” said Jag Davies, communications director of the Drug Policy Alliance (DPA), in an email.

The Marijuana Justice Act, introduced by Sen. Cory Booker in the Senate and Rep. Barbara Lee in the House, is perhaps the boldest proposal from the Democratic side. Beyond ending federal prohibition, the legislation would expunge federal marijuana possession convictions and allow people serving federal prison time for marijuana charges to petition a court for resentencing. Davies said California’s 2016 ballot initiative that legalized recreational marijuana in that state contains similar provisions, and reformers are promoting the same model in New York, New Jersey, New Mexico and beyond.

To encourage state-level reform, the Marijuana Justice Act would withhold federal funding for building new jails and prisons from states that have disproportionate arrest rates for marijuana offenses and fail to pass laws legalizing or decriminalizing marijuana. It would also set up a “community reinvestment fund” to generate economic opportunity in neighborhoods hardest hit by the war on drugs.

Such legislation would have a big impact on conservative states such as Alabama, where Black people and white people use marijuana at similar rates, but Black people are four times more likely to be arrested on marijuana charges, according to a new report from the Southern Poverty Law Center. Despite legalization in several states, police make hundreds of thousands of marijuana arrests every year and routinely use small amounts of marijuana as an excuse to search, harass and detain people, especially Black people and young men of color.

Davis said marijuana legalization can drastically reduce marijuana arrests, but it does not end racial disparities in policing. An analysis by the DPA found that marijuana arrests dropped dramatically after legalization in Washington, DC, but police continued to arrest people of color for underage consumption, public consumption and unlicensed distribution at higher rates compared to white people. In Washington State, the arrest rate among Black people remained twice that of any other race and ethnicity after legalization.

This is where marijuana legalization gets tricky. The Marijuana Justice Act and most other proposals in Congress would leave the regulation of marijuana up to the states, where lawmakers would decide who can grow and distribute cannabis, where it can be used, how it is taxed, and whether young people will continue to be criminalized for underage consumption. Some states may decide to keep marijuana illegal altogether. National marijuana prohibition would be over, but without smart reforms, the harms caused by criminalization will remain.

“The time is ripe to advance reforms beyond marijuana legalization and to begin repairing ancillary harms related to marijuana criminalization,” Davies said. “This includes reforming police practices to reduce the racial disparities in remaining marijuana arrests, limiting the extent to which marijuana can be used as an excuse for police to stop individuals, and removing criminal sanctions for minor marijuana-related activities by young people under age 21.”

Blumenauer and millions of voters want Democrats to take a hard look at these issues. As the midterms approach, Democrats are projected to gain a majority in the House of Representatives for the first time in years, but the Senate is likely to remain in Republican hands. Blumenauer’s memo to Democrats lays out a timeline for closing the gap between state and federal law and ultimately ending federal marijuana prohibition by the end of 2019.

Almost every standing committee in the House has jurisdiction over an area of marijuana policy, Blumenauer writes, and a true overhaul will require a series of hearings. He argues that, should they win the House, Democrats should schedule cannabis hearings starting in January 2019.

For example, he writes, the Education and Labor committee should hold a hearing on access to higher education for students who have been convicted of marijuana possession. The Energy and Commerce committee can consider barriers to marijuana research, and the Veterans’ Affairs committee can pursue access to medical marijuana for veterans suffering from PTSD. Other committees can consider Native sovereignty, banking services for weed businesses and the racial injustices resulting from drug prohibition.

Under Blumenauer’s plan, lawmakers would spend the summer months marking up and passing a package of marijuana reform bills that would address a myriad of civil rights and financial issues — and the widening gaps between state and federal law.

Democrats would then be in position to pass a bill removing marijuana from the federal list of banned drugs before the end of the year.

Lawmakers have already introduced dozens of marijuana reform bills in both chambers, but they have failed to gain any traction in the Republican-controlled Congress. If Democrats win the House, a concerted effort by Congress members to legalize marijuana would undoubtedly attract broad attention from the media, activists and younger voters, putting Republicans in the Senate under intense public pressure to pass the legislation onto President Trump.

In fact, Senate Republicans are already poised to push their own marijuana initiative. Sen. Gardner chairs the powerful National Republican Senatorial Committee and has already worked with Sen. Elizabeth Warren and other top Democrats to promote his conservative approach to marijuana reform. Earlier this year, Gardner reportedly called the president and struck a deal on the issue after stonewalling White House justice nominees over concerns that Sessions would send the feds barging into marijuana dispensaries in his state.

Whatever compromise legislation lands on Trump’s desk, Blumenauer wants House Democrats to leave their mark on it. If House Democrats don’t make bold moves on marijuana next year, then Republicans and the attention-grabbing president could take all the credit for ending federal marijuana prohibition once and for all.