Here’s What Stands in the Way of Marijuana Legalization in Washington, D.C.

How a bill becomes a law in the District—Mary Jane edition.

Marijuana leaves. 
National Journal
Rebecca Nelson
Sept. 25, 2014, 8:31 a.m.

Be­fore res­id­ents, tour­ists, and politi­cians can leg­ally get high in Wash­ing­ton, some polit­ic­al stars will have to align.

By a nearly 2-to-1 ra­tio, likely voters said they’d pass marijuana leg­al­iz­a­tion, which is on the bal­lot in D.C. this fall, ac­cord­ing to a poll re­leased last week. As it turns out, that’s the smal­lest hurdle.

Any­where else, a suc­cess­ful bal­lot ini­ti­at­ive, sim­il­ar to those in Col­or­ado and Wash­ing­ton state two years ago, would be the fi­nal word on wheth­er people can leg­ally toke. But in the Dis­trict, where com­plex rules of gov­ernance don’t per­mit full in­de­pend­ence from Con­gress, it isn’t that straight­for­ward.

Every bill passed in Wash­ing­ton must be sub­mit­ted to Con­gress for ap­prov­al. “Con­gress can undo our laws, es­sen­tially,” D.C. Coun­cil­mem­ber Dav­id Grosso told Na­tion­al Journ­al. And Ini­ti­at­ive 71—which would leg­al­ize marijuana for any­one over 21, al­low­ing res­id­ents to grow a lim­ited num­ber of plants at home, buy pipes and oth­er ac­cessor­ies, and pos­sess up to two ounces for per­son­al use—is ripe for con­gres­sion­al in­ter­ven­tion.

But be­fore it can even get to Cap­it­ol Hill, the ini­ti­at­ive may face a com­plic­ated ar­sen­al of tools the City Coun­cil can em­ploy to duck D.C.’s unique over­sight status. The coun­cil’s most press­ing prob­lem with the ini­ti­at­ive? Even if it passes, it wouldn’t al­low any­one to ac­tu­ally sell pot.

Be­cause the Dis­trict’s Board of Elec­tions doesn’t al­low bal­lot meas­ures to im­pact the city’s budget, no one would be able to leg­ally pur­chase pot, either. But Grosso in­tro­duced a bill last year that would im­ple­ment a “tax and reg­u­late” sys­tem—a way for people to buy and sell in a leg­al marijuana eco­nomy.

The coun­cil voted over­whelm­ingly to de­crim­in­al­ize marijuana earli­er this year, and the two cur­rent coun­cil mem­bers run­ning for may­or have voiced their sup­port for deal­ing with the sale con­flict the ini­ti­at­ive presents. It’s easy to see why the coun­cil would sup­port a tax-and-reg­u­la­tion meth­od; the city could reap the be­ne­fits of leg­al marijuana in tax rev­en­ue, as Col­or­ado has this year.

To re­con­cile that bill with Ini­ti­at­ive 71, the D.C. City Coun­cil is con­sid­er­ing a dra­mat­ic in­ter­ven­tion: passing emer­gency le­gis­la­tion to block the voter-ap­proved law from go­ing in­to ef­fect un­til the coun­cil can pass a com­plete law, in­clud­ing leg­al sale. Grosso, for his part, pre­dicts this will be the Coun­cil’s move.

“Either right be­fore or right after the vote, we can pass an emer­gency bill,” Grosso told Na­tion­al Journ­al. “In­stead of it just im­me­di­ately be­ing ef­fect­ive, you would have a peri­od of time where we could then put in the reg­u­lat­ory rules that we need in or­der to mon­it­or the pro­gram.”

The coun­cil has done this be­fore. In 2010, when med­ic­al can­nabis was fi­nally ap­proved after a long struggle with Con­gress, the coun­cil passed an emer­gency bill to halt its im­ple­ment­a­tion so a reg­u­lat­ory frame­work could be put in place to ac­com­mod­ate the pro­gram, Phil Mendel­son, the coun­cil’s chair­man, told Na­tion­al Journ­al. Only after that was de­veloped did med­ic­al pot be­come leg­al in Wash­ing­ton.

The coun­cil doesn’t need con­gres­sion­al ap­prov­al to pass an emer­gency bill, which al­lows for a 90-day grace peri­od. Then, the body could delay it fur­ther still, passing tem­por­ary le­gis­la­tion to push marijuana leg­al­iz­a­tion back 225 days. This would give the coun­cil time to pass the bill they, and many voters, really want: a leg­al, reg­u­lated marijuana eco­nomy.

“I know this is ri­dicu­lous,” Grosso con­ceded. “But it’s the nature of our city.”

Then comes the second act, where that bill—the coun­cil-passed one—heads to Con­gress for re­view. It’s a pass­ive ap­prov­al pro­cess, mean­ing that if U.S. law­makers don’t raise any ob­jec­tion to a spe­cif­ic piece of le­gis­la­tion dur­ing the re­view peri­od, it auto­mat­ic­ally be­comes law.

City and fed­er­al gov­ern­ment of­fi­cials were un­clear on wheth­er Ini­ti­at­ive 71, the bal­lot meas­ure that doesn’t al­low for the sale of marijuana, would go to Con­gress for re­view im­me­di­ately after it in­ev­it­ably passes. While there’s some con­fu­sion on wheth­er the ini­ti­at­ive would go to Con­gress in spite of an emer­gency bill, a House aide told Na­tion­al Journ­al that any act passed in the Dis­trict is sent to the Hill without delay. There was also dis­agree­ment on how long Con­gress would have to dis­ap­prove it: While a Dis­trict gov­ern­ment aide said the re­view peri­od would prob­ably be 30 days, Adam Ei­dinger, the chair­man of the D.C. Can­nabis Cam­paign, which lob­bied to get the ini­ti­at­ive on the bal­lot, ar­gued that be­cause it amends the crim­in­al code, it would be up for a 60-day peri­od.

Wheth­er either Ini­ti­at­ive 71 or a coun­cil-passed bill is pushed to this Con­gress’s lame-duck ses­sion or the next Con­gress, in Janu­ary, de­pends on the length of the re­view peri­od as well as how long the coun­cil takes to act.

To dis­ap­prove of a Dis­trict law, any mem­ber of Con­gress can in­tro­duce a joint res­ol­u­tion, a stan­dalone bill nix­ing the will of D.C. voters. This would be next to im­possible in the cur­rent Con­gress; the Demo­crat-con­trolled Sen­ate would nev­er pass a bill like that, nor would Pres­id­ent Obama sign it.

A way around this is to at­tach an amend­ment to a must-pass piece of le­gis­la­tion, such as a con­tinu­ing res­ol­u­tion or oth­er budget le­gis­la­tion, which will need to be passed be­fore Dec. 11 to keep the gov­ern­ment fun­ded.

At least one law­maker says he will do whatever it takes to block it. Earli­er this sum­mer, Rep. Andy Har­ris, R-Md., at­tached an amend­ment to an ap­pro­pri­ations bill block­ing any fund­ing for marijuana de­crim­in­al­iz­a­tion in the Dis­trict, and said he would do the same if leg­al­iz­a­tion passed this fall.

“The fed­er­al gov­ern­ment should en­force fed­er­al law re­gard­less of wheth­er loc­al cit­izens try to leg­al­ize marijuana,” Har­ris told Na­tion­al Journ­al via an emailed state­ment. “If leg­al­iz­a­tion passes, I will con­sider us­ing all re­sources avail­able to a mem­ber of Con­gress to stop this ac­tion, so that drug use among teens does not in­crease.”

If Har­ris does suc­cess­fully at­tach an amend­ment or rider to a House bill, and it makes it through the House, it would be an­oth­er thorny point of budget ne­go­ti­ations for the Sen­ate. But it isn’t likely. With the threat posed by IS­IS, U.S. strikes in Syr­ia, and con­cerns about Rus­sia’s ac­tions in Ukraine, more press­ing mat­ters at home and abroad will likely take pre­ced­ence. Even if the ini­ti­at­ive or coun­cil-passed bill gets pushed to the next, pos­sibly Re­pub­lic­an-con­trolled, Con­gress, there haven’t been calls to thwart the le­gis­la­tion, aside from Har­ris’ pledge to stop it.

Should Con­gress de­cline to take ac­tion dur­ing the re­view peri­od, and the coun­cil doesn’t in­ter­vene, Ini­ti­at­ive 71 would make it leg­al for any D.C. res­id­ent to grow up to six marijuana plants, pos­sess the drug, and share the fruits of their cul­tiv­a­tion with friends.

“We really won’t have ar­rests, or tick­et­ing, or har­ass­ment of marijuana users,” Ei­dinger told Na­tion­al Journ­al. “And we’re go­ing to free up about $26 mil­lion worth of po­lice re­sources and gov­ern­ment re­sources that are spent en­for­cing the law cur­rently.”

Though they’ve cham­pioned Novem­ber’s bal­lot ini­ti­at­ive, Ei­dinger and oth­er act­iv­ists hope that a coun­cil-passed tax-and-reg­u­late bill will ul­ti­mately pre­vail. Should either bill pass the obstacle course of city and fed­er­al hoops, any­one 21 or older in D.C. will be able to leg­ally get stoned, but only the lat­ter meas­ure would al­low any­one to buy it. A year from now, we may see a much more con­geni­al, chilled-out at­mo­sphere in the city.

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