Amid the push to pass an infrastructure bill and other Biden administration priorities, congressional Democrats also have their sights set on marijuana policy—and a pair of New Yorkers are at the forefront.
On the heels of their own state’s successful legalization push last month, Senate Majority Leader Chuck Schumer and House Judiciary Committee Chairman Jerrold Nadler will soon reintroduce legislation to decriminalize marijuana and roll back some of the penalties imposed on those with marijuana convictions, despite a tepid response from the White House on the issue.
“We want to move this bill; it’s time,” Schumer said of the upcoming Senate legislation in a video with Senate Finance Committee Chairman Ron Wyden and Sen. Cory Booker outlining their plans for the legislation.
Nadler helped shepherd the MORE Act, which would decriminalize marijuana, through the House in the last Congress, and he is set to reintroduce a version of the same legislation soon, he said during a March 11 hearing on controlled substances.
“For far too long we have treated marijuana as a criminal-justice problem instead of as a matter of choice and public health,” Nadler said during the hearing.
Timing on the introductions is unclear, advocates say, but marijuana groups have been in contact with Capitol Hill offices on the upcoming legislation. Both Nadler and Schumer have said they’d unveil legislation shortly.
The push marks one of the strongest efforts to advance federal legislation rolling back marijuana prohibition since the drug was effectively criminalized by the Marihuana Tax Act of 1937.
Schumer, who first introduced a decriminalization bill in 2018, is the first leader of a Senate caucus to come out in support of legalization. Marijuana advocates say his legislation is likely to mirror Nadler’s, which would remove marijuana from the schedule of drugs classified by the Controlled Substances Act. Marijuana is currently in the Schedule 1 tier, along with other drugs such as heroin and PCP.
Nadler’s bill, which passed the House in the previous Congress with five Republican votes, would expunge nonviolent marijuana-related convictions and implement a 5 percent federal tax on cannabis products. It would also prohibit the denial of certain federal benefits because of cannabis use.
On March 31, New York Gov. Andrew Cuomo signed legislation legalizing and taxing marijuana for citizens over the age of 21. New York follows 14 other states that have legalized marijuana in recent years, while other states now allow its medical use.
New York’s law is one of the most sweeping state-level marijuana bills, allowing individuals to smoke marijuana in public wherever tobacco smoke is allowed and barring police from using the smell of the drug as cause to stop and search pedestrians.
Federal expungement of cannabis convictions is only a small part of the issue. Most convictions occur at the state level, advocates say.
“But it’s definitely something that needs to happen,” said Morgan Fox, spokesman for the National Cannabis Industry Association. “Having that happen federally sends a message to the states to start putting more emphasis on that.”
Any legislation will also need to provide incentives for states to follow the federal government in rolling back criminal records and penalties, advocates said. The MORE Act would have taken the money raised from the 5 percent tax and provided states funding to create cannabis-licensing programs and to help expunge criminal records, as well as money for community-development programs such as job training and post-incarceration reentry services.
“Look, we don’t want the big tobacco companies and big liquor companies to swoop in and take over,” Schumer said. “The legislation we have will make sure that smaller businesses in communities of color get the advantage, because the communities of color have paid the price for decades.”
Fox did say, however, that one provision added as an amendment to the MORE Act last year, which gives federal regulators the power to deny cannabis licensing to people with felonies, should not be included this time. The provision “kind of defeats the purpose of the primary social-justice intent of the legislation," he said.
The MORE Act, or a similar bill proposed by Schumer, Wyden, and Booker, would likely still need 60 votes to clear the Senate, making its passage a long shot. Getting most Republicans, and even some conservative Democrats, on board with a comprehensive decriminalization and social-reform bill remains a challenge.
“Even though Republican support has been growing, they still tend to be more comfortable with incremental changes than broad, comprehensive changes like the MORE Act or other descheduling legislation,” Fox said.
Democratic Sen. Jeff Merkley and Republican Sen. Steve Daines have reintroduced narrower legislation. The Secure and Fair Enforcement (SAFE) Banking Act would allow banks to provide services to cannabis-related businesses without fear of criminal reprisal from the federal government. The legislation drew a bipartisan group of 34 cosponsors in the last Congress.
Companion legislation has been introduced in the House by Democratic Reps. Ed Perlmutter and Nydia Velazquez and Republican Reps. Steve Stivers and Warren Davidson.
Though Senate Banking Committee Chairman Sherrod Brown has said that he supports advancing a marijuana-reform bill, he wants it coupled with reforms for drug offenses as well, Cleveland.com reported in February.
“The crux of it is that we shouldn’t just give legal protections for bankers to hold onto money that was profited by the distribution of a Schedule 1, prohibited, criminalized substance without providing any kind of protections to the nearly 600,000 people who were arrested in 2019 alone,” Justin Strekal, political director at the National Organization for the Reform of Marijuana Laws, said of Brown’s position.
Strekal said he’s optimistic about bringing more Republicans around to supporting marijuana legislation.
“There are a number of Republicans that are primed to be engaged,” he said.
Strekal pointed to the Koch-backed Americans for Prosperity, which on Tuesday helped launch the Cannabis Freedom Alliance, a new group aimed at ending marijuana prohibition.
The Biden administration has been tepid on legalization or decriminalization. As a senator, Joe Biden was hawkish on drug enforcement, supporting legislation giving out long sentences for some drug offenses. During his presidential primary campaign, Biden declined to support federal marijuana legalization. His White House has fired staffers who have admitted to marijuana use on security-clearance forms, though press secretary Jen Psaki has said the administration is updating its employment policies related to marijuana.
Industry advocates say there’s no point person in the White House on cannabis issues.
Vice President Kamala Harris sponsored the MORE Act as a senator in the last Congress, but she told the San Francisco Chronicle in an interview published Monday that the administration hasn’t focused on rescheduling marijuana because it has been occupied with the pandemic.
“Honestly, right now, we’ve been focused on getting people food, helping them stay in their apartments or in their homes, getting kids back to school, getting shots into arms,” Harris said. “That has been all-consuming.”
Still, advocates say if Congress passes marijuana legislation they don’t see Biden vetoing the bill.
“I don’t think that we can expect the Biden administration to be too proactive at all, but it’s incredibly doubtful that he would try to stand in the way of incremental or comprehensive legislative agendas if they were to arrive at his desk,” Fox said.