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.