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The House Is About to Pass Marijuana Decriminalization. What Will the Senate Do?

Marijuana legalization enjoys support from a clear and bipartisan majority of voters.

If President Trump and Senate Republicans were willing to work with Democrats on just one issue, a bill ending federal marijuana prohibition could finally become law.

That’s probably not going to happen unless Trump’s racist, scorched-earth reelection campaign drastically changes course, but Democratic vice-presidential nominee Kamala Harris can still challenge the president on a long overdue reform that animates voters.

Senator Harris and congressional Democrats are poised to push a historic marijuana decriminalization bill that could begin to address the havoc wreaked on communities of color by the war on drugs — and force Trump and GOP lawmakers to entrench their positions on cannabis and racialized policing ahead of the election. Polls show marijuana legalization and decriminalization now enjoy support among a clear and bipartisan majority of voters, but lawmakers have failed to act, until now.

Before the end of the month, House Democrats are expected to pass the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, a comprehensive bill that would remove marijuana from the Schedule I list of drugs strictly prohibited under federal law, effectively decriminalizing possession at the federal level. Under the MORE Act, states would be left to decide whether to legalize and how to regulate marijuana, as dozens have already done with medical and recreational cannabis. This approach has sometimes been favored by conservatives and, at times, Trump himself.

The legislation has several “reparative” racial justice components aimed at helping communities of color recover from the harms of criminalization and benefit financially from the booming legal cannabis industry. The bill would also establish a process for scrubbing federal marijuana convictions from criminal records and resentencing people locked away in federal prison for marijuana-related crimes.

The Democratic House majority appears firmly behind the bill, activists say, and the majority whip recently announced that the MORE Act would come up for a floor vote later this month, according to an internal email leaked to the press. If the MORE Act passes, it would mark the first time that a chamber of Congress voted to end federal marijuana prohibition. Racial justice activists have been pushing for a vote on the bill since last year, and the sense of urgency has only grown as protests and uprisings sparked by the police killings of George Floyd, Breonna Taylor, Jacob Blake and others spread across the nation.

“This is a really monumental moment, to be honest,” said Queen Adesuyi, the national affairs policy manager at the Drug Policy Alliance and co-chair of the Marijuana Justice Coalition, in an interview.

The Marijuana Justice Coalition is an assembly of civil rights and drug reform groups that worked with lawmakers to write and advance the MORE Act in the House. Harris introduced companion legislation in the Senate, where she could use her position on her party’s top ticket to thrust the issue into the presidential race. For Harris, the MORE Act is an opportunity to atone for her record as a tough-on-crime California prosecutor that angers the left, and to uphold her pledge to stand up for communities of color harmed by mass incarceration and the war on drugs. Democrats introduced similar marijuana justice legislation last year but failed to take meaningful action until November, when the House Judiciary Committee advanced the MORE Act in an historic vote.

“We’re hopeful that Senator Harris will use her platform on the Democratic ticket, and potentially as our next vice president, to deliver on the promises she made to communities of color and low-income communities around her commitment to end federal criminalization of marijuana and the racist drug war that has ripped apart their communities for decades,” Adesuyi said.

Black communities are hit particularly hard by the criminalization of drug possession, which police use as an excuse to stop, harass and arrest people. Earlier this year, an analysis by the American Civil Liberties Union concluded that Black people are nearly four times more likely than whites to be arrested for marijuana possession, even though Blacks and whites use marijuana at similar rates.

Police have disproportionately targeted people of color for marijuana arrests since prohibition of the drug began nearly a century ago. In fact, historians say racism is the reason marijuana became illegal in the first place. Beginning in the 1930s, prohibitionists used racist depictions of Black people and Mexican immigrants using cannabis to stoke public fears of “reefer madness” and pass laws empowering federal law enforcement.

Today, 43 percent of the U.S.’s total drug arrests are for marijuana, and 90 percent of those are for simple possession, according to the ACLU analysis.

“We have been putting pressure on Congress to move on marijuana justice since before the most recent national outcries for racial justice, but between COVID-19 and the continued murders of Black people by the state, we have had to contextualize why a bill like the MORE Act is even more critical in this moment — not less,” Adesuyi said, adding that marijuana arrests continue to funnel people into jails and prisons that have become hotspots for COVID-19.

Meanwhile, Trump has responded to nationwide demands for racial justice by equating protesters to domestic terrorists, praising far-right agitators stoking violence at protests, defending law enforcement at every turn and comparing police killings of unarmed Black people to a game of golf. Trump is also activating federal law enforcement to crack down on protests, while exploiting images of isolated street clashes in a thinly veiled attempt to scare rural and suburban white voters to the polls.

With all this in the background, a House vote on the MORE Act would put Trump and the GOP in a political pickle, particularly if Harris makes bold moves to advance marijuana and criminal legal reforms in the Senate and on the campaign trail.

If the MORE Act advances to the Senate, the White House will be under pressure to take a position. Theoretically, Trump could decide to support the legislation and ask the Senate’s GOP leadership to take it up. However, in order to do that, he would have to share credit with Harris, an opponent the president routinely mocks. Support for a bill with racial justice provisions would also acknowledge, at least tacitly, that prohibition has contributed to the disparate and harmful policing of Black people. All of this seems unimaginable at this point. However, if Trump and Republicans lawmakers oppose the bill or simply ignore it, they will be running afoul of public opinion ahead of the election.

Support for legalizing marijuana for adult recreational use is nearing 70 percent. Recent polling found that 60 percent of voters say police should stop arresting people for marijuana where it remains illegal — including 58 percent of Republicans. Fifty-five percent of voters and half of Republicans say police should stop arresting people for sales of small amounts of marijuana as well. When asked about the MORE Act’s specific provisions, which include taxing legal marijuana sales and reinvesting revenues into communities harmed by the drug war, 62 percent of voters and 60 percent of Republicans voiced their support.

To be clear, even if the MORE Act becomes law, marijuana and products containing THC, the main compound in cannabis that causes users to feel high, would still be illegal in the remaining states that criminalize use and possession. However, lawmakers in these states could no longer point to federal law in defense of prohibition when their constituents demand change, according to Justin Strekal, spokesperson for NORML, a marijuana reform group in the Marijuana Justice Coalition. If the MORE Act makes headlines when it passes the House — and if Harris is willing to stump for it on the national stage — it could have a big impact on the election.

“If the House were to hold this vote later this month, it would send a message particularly to younger voters and dissatisfied Americans that the House is willing to hold a vote on something that is tangible to them,” Strekal said. “The House, by having a vote, will tell the American people, are their representatives on the side of freedom, liberty and moving toward racial justice, or are they on the side of oppression, criminalization, and racially disparate enforcement?”

Trump appears to be quite aware that marijuana motivates some voters, and younger voters in particular, who have turned away from him in droves amid his outbursts against Black Lives Matter protests. At a recent campaign event in Wisconsin, Trump suggested that local marijuana reform ballot initiatives drove Democratic turnout and contributed to former Republican Gov. Scott Walker’s defeat in the 2018 midterms.

“The next time you run please don’t put marijuana on the ballot at the same time you’re running,” Trump reportedly said, with Walker in the crowd. “You brought out like a million people that nobody ever knew were coming out.”

There are currently marijuana reforms on the ballot in five states, including Arizona, which is now considered a toss-up for the presidential race. But that may be the least of the president’s concerns if House Democrats pass the MORE Act and Harris loudly calls out roadblocks in the GOP-controlled Senate. The Trump administration’s record on marijuana would suddenly be in the media spotlight, and it’s dismal. While Trump has made empty promises about allowing states to legalize marijuana without federal interference, his administration has moved to do the exact opposite, with statements and policies reflecting decades of dogma rooted in the failed war on drugs.

Senate Republicans may make an attempt at damage control by passing their version of a bill that would allow banks and other financial institutions to do business with cannabis businesses in legalized states without violating federal law, but racial justice activists were outraged when the House passed the same legislation without broader reforms last year. The legislation only benefits the weed industry and Wall Street, and with Black Lives Matter protests continuing on a daily basis, passing the “banking bill” alone would appear weak and out of touch to an electorate clamoring for change.

The Senate could also pass a watered-down decriminalization bill without racial justice provisions, but it’s likely Republican Majority Leader Mitch McConnell will let the MORE Act rot in committee and ignore the issue altogether.

Whether the Democrats will use marijuana justice as a potent election year wedge issue remains to be seen. First the House must pass the MORE Act, and then Harris must take up the torch and dare Trump to push back.

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