As Senate leaders work to draft a bill to federally legalize marijuana, there’s an elephant in the room: even with Democrats in control of the chamber, the votes might not be there to enact comprehensive reform.
Recognizing the potential challenges of mustering 60 votes to overcome a filibuster for standalone legislation on the floor, advocates are urging leadership to pursue the policy change through a process known as budget reconciliation that would require a simple majority of 51 votes for a broader, must-pass package.
Senate Majority Leader Chuck Schumer (D-NY), who is spearheading the legalization push in his chamber, didn’t rule out that possibility at a press conference last week.
Asked whether senators might try to incorporate the cannabis proposal into reconciliation, he said “you will hear in a few weeks the legislation that’ll answer” that question.
“This is an option the Marijuana Justice Coalition shared” with the majority leader, Maritza Perez, director of the office of national affairs for the Drug Policy Alliance, told Marijuana Moment. “The way we see it, a must-pass bill is the only vehicle that can ensure we pass a marijuana justice bill in this Senate.”
Chris Lindsey, director of government relations for the Marijuana Policy Project, told Marijuana Moment that it’s clear “Leader Schumer is taking seriously his commitment to see legalization happen at the federal level, and address the ongoing harm from prohibition.”
“We have no doubt he is looking at all vehicles that can accomplish reform,” he said.
But while going the reconciliation route might seem like a simple workaround that would relieve pressure to garner Republican supporters, the legislative process is complex, with a series of rules that limit what kind of measures can be enacted under the procedure in the first place.
The so-called Byrd rule determines whether a given proposal is an “extraneous matter” that’s not germane to the budget process. There are several criterion that are used to make that determination, including whether the legislation would add to the deficit beyond a 10-year “budget window.”
If a senator opposed to legalization wanted to block the marijuana language from being included in the broader package based on this procedural rule, they would have to raise a point of order. The Senate Parliamentarian would then make a determination, in consultation with the presiding officer of the chamber. If they deemed the language in violation of the Byrd rule, it would be stricken from the reconciliation bill.
Assuming that the forthcoming legalization measure survives a challenge under those reconciliation limitations, it’s possible it will face a separate hurdle. Under the process, any member can introduce an amendment, and they must all be considered on the floor in a lengthy process known as “vote-a-rama.”
That means, if a senator opposed to marijuana reform chooses to, they could force a vote on an amendment calling for the legalization language to be stripped, which would then require a simple majority to defeat it. That might sound easy enough given that Democrats now hold the majority, but there’s yet another complication: some members of the party have signaled that they’re not on board with federal legalization.
Sen. Jeanne Shaheen (D-NH), for example, told Politico last week that she doesn’t support legalization and that “we’re in the middle of an opioid epidemic, and the research that I’ve seen suggests that that is a way that more people get into drugs.” Sen. Jon Tester (D-MT) said he thinks legalization would “cause more problems than it solves.” Sens. Joe Manchin (D-WV), Bob Casey (D-PA) and Mark Kelly (D-AZ) all told the outlet that they remain undecided on the issue.
What’s more, a number of other Democratic senators such as Sens. Ben Cardin (D-MD) and Debbie Stabenow (D-MI) told Business Insider in March that they hadn’t looked closely enough at the issue of federal legalization to say how they would vote. Sen. Dianne Feinstein (D-CA), a longtime opponent of legalization who in recent years came around to sponsoring some reform legislation, represents another question mark for Democratic leaders.
Losing any single one of those lawmakers would jeopardize the bill even it only 50 votes are required, with Vice President Kamala Harris as the tie-breaker. For any Democrat legalization loses, Schumer would have to pick up a Republican to get back to 50.
Sen. Rand Paul (R-KY) supports cannabis reform and said he is “one of the possible gets” this session, though he questioned why his Democratic colleagues haven’t reached out to him on the issue—and his libertarian leanings could give him pause about supporting any proposal to tax marijuana and use the proceeds to repair the harms of the war on drugs.
Put simply, if senators move to incorporate legalization into a budget package via reconciliation, things could get messy—but it may be their only possible path to success given the alternative standalone route and the 60-vote threshold to end a filibuster.
Meanwhile, Sen. Cory Booker (D-NJ) said on Tuesday that he’s “pretty confident that we could get the 50 votes of the Democrats” for broad cannabis reform, but also seemed to suggest that the bill might actually be brought to the floor under regular order and would need to overcome a filibuster.
“We’ve got to pick up another 10 votes. Now, the good news is, is that there are Republican bright red states that have legalized marijuana,” he said at a 4/20 event hosted by the ACLU of New Jersey. “And that should give us some advantage in trying to cobble together the kind of majority that we need. .. I’m going to do everything I can to cobble together the 60 votes necessary. Unless of course, we somehow get rid of the filibuster, which would be wonderful.”
Justin Strekal, political director for NORML, told Marijuana Moment that no senators’ vote should be taken for granted and that supporters need to make it clear that they expect their elected officials to represent their views no matter how cannabis reform proceeds to the floor.
“As all procedural possibilities are explored, one thing is certain: far too many U.S. senators believe it to be acceptable to arrest and incarcerate Americans for marijuana possession,” he said. “Now is the time for each and every supporter of cannabis policy reform to contact their elected officials and make it clear that they will be watching.”
Democrats were cleared by the Senate parliamentarian to do another reconciliation bill this year and seem poised to pursue the option in the coming months—but cannabis isn’t the only issue that could be attached to the procedurally complicated legislation.
Drug pricing, immigration reform, climate policy and other issues are all on the table as Democrats step up their push to deliver wins on infrastructure and jobs before the midterms. House Budget Chairman John Yarmuth (D-KY) said the upcoming reconciliation package will be tantamount to a “kitchen sink” approach—throwing everything in. As such, advocates say cannabis should be included.
Despite the possible challenges, legalization advocate Sen. Bernie Sanders (I-VT) told The Washington Post that he’s open to using reconciliation to enact the reform. However, “there are a whole lot of questions out there” and “it’s a little bit more complicated” procedurally.
Schumer isn’t alone in drafting the reform legislation this session. He’s teamed up with Booker and Senate Finance Committee Chairman Ron Wyden (D-OR) to get the job done. The majority leader said the bill will be released “shortly” and put to the floor “soon.”
The majority leader told Marijuana Moment in an interview last week that one thing they want to avoid is to enact a policy change that’s temporary, such as attaching amendments to appropriations legislation. Schumer said their “first goal is not to settle for just partial measures.”
On the House side, Judiciary Chairman Jerrold Nadler (D-NY) said recently that he plans to reintroduce his legalization bill, the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, which cleared the chamber last year but did not advance in the Senate under GOP control.
Another factor that’s frustrating advocates is a more long-term concern: President Joe Biden opposes federal legalization, and his press secretary on Tuesday wouldn’t say whether he would sign or veto a reform bill if it’s sent to his desk. She did note, however, that his position is at odds with the proposals that congressional leaders are working on.
Photo courtesy of Philip Steffan.
Illinois Will ‘Blow Past’ $1 Billion In Legal Marijuana Sales In 2021, Chamber Of Commerce President Says
“Are we going to get to a billion dollars? I think we’re going to blow past the billion dollars based on the experience in smaller states,” the Chamber leader said.
By Elyse Kelly, The Center Square
Illinois’s cannabis industry is growing up fast, with adult-use recreational cannabis sales expected to hit $1 billion by year-end.
In March alone, Illinoisans spent $110 million on recreational marijuana.
Todd Maisch, president and CEO of the Illinois Chamber of Commerce, said one factor contributing to Illinois’ explosive growth is that most neighboring states haven’t legalized marijuana yet.
“What we saw early on in states like Washington and Colorado is they did have demand come in from surrounding states, which frankly benefits our industry and benefits the taxes collected,” Maisch said.
Cannabis sales have already surpassed alcohol’s tax revenues for the state, and Maisch said he thinks $1 billion estimates are conservative.
“Are we going to get to a billion dollars? I think we’re going to blow past the billion dollars based on the experience in smaller states,” Maisch said.
There are only a couple of things that could stop Illinois’ explosive cannabis market growth, Maisch said. He said that policymakers could ruin things by pushing taxes too high as evidenced by the tobacco market.
“As taxes have gone up and up and up, they’ve pushed people all the way into the black market or they’ve created this grey market in which people are ostensibly paying some of the taxes, but they’re still getting sources of tobacco products that avoid much of the tax,” Maisch said.
The other thing that could head off continued growth is other states opening up recreational-use markets.
“So if you start to see surrounding states go to recreational, that’s definitely going to flatten the curve because we’re not going to be pulling in demand from other states,” Maisch said.
Maisch points out some concerns that accompany the explosion of Illinois’s recreational cannabis market including workforce preparedness.
“All of those individuals who are deciding to go ahead and consume this product are really taking themselves out of a lot of job opportunities that they would otherwise be qualified, so there’s a real upside and a downside,” Maisch said.
While it’s easy to track the revenues this industry brings into state coffers, he points out, it will be harder to track the lack of productivity and qualified individuals to operate heavy machinery and other jobs that require employees to pass a drug test.
DEA Finally Ready To End Federal Marijuana Research Monopoly, Agency Notifies Grower Applicants
The Drug Enforcement Administration (DEA) on Friday notified several companies that it is moving toward approving their applications to become federally authorized marijuana manufacturers for research purposes.
This is a significant development—and one of the first cannabis-related moves to come out of the Biden administration. There is currently a monopoly on federal cannabis cultivation, with the University of Mississippi having operated the only approved facility for the past half-century.
It was almost five years ago that DEA under President Barack Obama first announced that it was accepting applications for additional manufacturers. No approvals were made during the Trump administration. And the delay in getting acceptances has led to frustration—and in some cases, lawsuits—among applicants.
But on Friday, organizations including the Biopharmaceutical Research Company (BRC), Scottsdale Research Institute (SRI) and Groff NA Hemplex LLC were notified by the agency that their requests were conditionally accepted.
“DEA is nearing the end of its review of certain marijuana grower applications, thereby allowing it to soon register additional entities authorized to produce marijuana for research purposes,” DEA said. “Pending final approval, DEA has determined, based on currently available information, that a number of manufacturers’ applications to cultivate marijuana for research needs in the United States appears to be consistent with applicable legal standards and relevant laws. DEA has, therefore, provided a Memorandum of Agreement (MOA) to these manufacturers as the next step in the approval process.”
The Wall Street Journal first reported on the move, and it’s unclear just how many organizations have received a DEA communication so far.
Matt Zorn, who has represented SRI in a suit against DEA over the processing delays, told Marijuana Moment that the agency explained that it is “moving forward” with the facility’s application and that it appears to be “consistent with public interest” to give the institute the ability to grow marijuana for study purposes.
SRI’s Dr. Sue Sisley is in a process of completing a memorandum of agreement that DEA requested “so that it can be executed and official,” according to a press release.
BRC CEO George Hodgin said in another press release that after being finalized, “this federal license will forever change the trajectory of our business and the medicinal cannabis industry.”
“The DEA’s leadership will set off a nationwide wave of innovative cannabis-derived treatments, unlock valuable intellectual property and create high quality American jobs,” he said. “The BRC team is already familiar with DEA compliance procedures based on our extensive history of controlled substances activity, and our world class staff is ready to hit the ground running on this new business arm that the DEA has authorized.”
DEA said it has presented applicants that appear to meet legal requirements “with an MOA outlining the means by which the applicant and DEA will work together to facilitate the production, storage, packaging, and distribution of marijuana under the new regulations as well as other applicable legal standards and relevant laws.”
“To the extent these MOAs are finalized, DEA anticipates issuing DEA registrations to these manufacturers,” the agency said. “Each applicant will then be authorized to cultivate marijuana—up to its allotted quota—in support of the more than 575 DEA-licensed researchers across the nation.”
DEA said it “will continue to prioritize efforts to evaluate the remaining applications for registration and expects additional approvals in the future” and will publicly post information about approvals as they are finalized.
Following a 2019 suit against DEA by SRI, a court mandated that the agency take steps to process the cultivation license applications, and that legal challenge was dropped after DEA provided a status update.
That suit argued that the marijuana grown at the University of Mississippi is of poor quality, does not reflect the diversity of products available on the commercial market and is therefore inadequate for clinical studies.
That’s also a point that several policymakers have made, and it’s bolstered by research demonstrating that the federal government’s cannabis is genetically closer to hemp than marijuana that consumers can obtain in state-legal markets.
Last year, DEA finally unveiled a revised rule change proposal that it said was necessary to move forward with licensing approvals due to the high volume of applicants and to address potential complications related to international treaties to which the U.S. is a party.
SRI filed another suit against DEA in March, claiming that the agency used a “secret” document to justify its delay of approving manufacturer applications. And that was born out when the Justice Department Office of Legal Counsel document was released last year as part of a settlement in the case, revealing, among other things, that the agency feels that its current licensing structure for cannabis cultivation has been in violation of international treaties for decades.
Photo by Aphiwat chuangchoem.
Mississippi Supreme Court Overturns Medical Marijuana Legalization Ballot That Voters Approved
A voter-approved initiative to legalize medical marijuana in Mississippi has been overturned by the state Supreme Court.
On Friday, the court ruled in favor of a Mississippi mayor who filed a legal challenge against the 2020 measure, nullifying its certification by the Secretary of State. The lawsuit was unrelated to the merits of the reform proposal itself, but plaintiffs argued that the constitutional amendment violated procedural rules for placing measures on the ballot.
While the court acknowledged that a “strong, if not overwhelming, majority of voters of Mississippi approved Initiative 65” to legalize medical cannabis in the state, Madison Mayor Mary Hawkins Butler’s (R) petition was valid for statutory reasons.
Madison’s challenge cites a state law stipulating that “signatures of the qualified electors from any congressional district shall not exceed one-fifth (1/5) of the total number of signatures required to qualify an initiative petition for placement upon the ballot.” But that policy went into effect when Mississippi had five congressional districts, and that’s since been reduced to four, making it mathematically impossible to adhere to.
The secretary of state and other officials pushed back against the lawsuit and argued that a plain reading of the state Constitution makes it clear that the intention of the district-based requirement was to ensure that signatures were collected in a geographically dispersed manner—and the result of the campaign met that standard.
But in the court’s 6-3 ruling released on Friday, the justices said that their hands were tied. The legislature or administration might be able to fix the procedural ballot issue, but it had to follow the letter of the law.
“We find ourselves presented with the question squarely before us and nowhere to turn but to its answer,” the decision states. “Remaining mindful of both the November 3, 2020 election results and the clear language in section 273 seeking to preserve the right of the people to enact changes to their Constitution, we nonetheless must hold that the text of section 273 fails to account for the possibility that has become reality in Mississippi.”
In sum, a Census-driven change in the number of congressional districts in Mississippi “did, indeed, break section 273 so that, absent amendment, it no longer functions,” meaning there’s no legal way to pass a constitutional ballot initiative in the state.
“Whether with intent, by oversight, or for some other reason, the drafters of section 273(3) wrote a ballot-initiative process that cannot work in a world where Mississippi has fewer than five representatives in Congress. To work in today’s reality, it will need amending—something that lies beyond the power of the Supreme Court.”
“We grant the petition, reverse the Secretary of State’s certification of Initiative 65, and hold that any subsequent proceedings on it are void,” the court ruled.
One justice who dissented said that the district-based requirement is arbitrary as it concerns Mississippi elections. While the federal government defines the state as having four congressional districts, the state Constitution “lays out the five districts,” and “there have been zero changes to the five districts” as far as the state’s laws are concerned.
In any case, this marks a major defeat for cannabis reform activists in the state who collected more than 214,000 signatures for their initiative. Sixty-eight percent of voters approved a general ballot question on whether to allow medical cannabis, and 74 percent signed off on advocates’ specific measure in a separate question.
“The Mississippi Supreme Court just overturned the will of the people of Mississippi,” Ken Newburger, executive director for the Mississippi Medical Marijuana Association, said in a press release. “Patients will now continue the suffering that so many Mississippians voted to end. The Court ignored existing case law and prior decisions. Their reasoning ignores the intent of the constitution and takes away people’s constitutional right.”
“It’s a sad day for Mississippi when the Supreme Court communicates to a vast majority of the voters that their vote doesn’t matter,” he said.
Today the MS Supreme Court ruled against the state’s ballot initiative process, killing the medical marijuana program 74% of Mississippians voted to pass. This is devastating for not only patients, but voters as a whole. Below is our statement: https://t.co/jrDoJM3K16 pic.twitter.com/AR3xuId3xR
— Mississippi Medical Marijuana Association (@medmarijuanams) May 14, 2021
Under the voter-approved initiative, patients with debilitating medical issues would have been allowed to legally obtain marijuana after getting a doctor’s recommendation. The proposal included 22 qualifying conditions such as cancer, chronic pain and post-traumatic stress disorder, and patients would have been able to possess up to 2.5 ounces of marijuana per 14-day period.
There was an attempt in the legislature to pass a bill to legalize medical marijuana in the event that the court overruled the voter-approved initiative, but it failed to be enacted by the session’s end.
The Mississippi State Department of Health told WJTV that it will cease work on developing medical cannabis regulations in light of the court ruling.
“However, the agency has certainly learned a lot in the process of putting together a successful medical marijuana program, and we stand ready to help the legislature if it creates a statutory program,” Liz Sharlot, director of the Office of Communications for the department, said.
This is the latest state Supreme Court setback to affect cannabis reform efforts.
Last month, the Florida Supreme Court dealt a critical blow to marijuana activists working to legalize marijuana in the state—killing an initiative that hundreds of thousands of voters have already signed and forcing them to start all over again if they want to make the 2022 ballot.
While a Nebraska campaign collected enough signatures to qualify a reform initiative in 2020, the state Supreme Court shut it down following a legal challenge. It determined that the measure violated the state’s single-subject rule, much to the disappointment of advocates.
In South Dakota, the fate of an adult-use legalization initiative that voters approved last November is also in the hands of the state’s Supreme Court, where a sheriff is challenging its constitutionality based on a single subject rule as well.
Opponents to a Montana marijuana legalization measure that was approved by voters have also filed lawsuits contesting the voter-approved initiative for procedural reasons, arguing that its allocation of revenue violates the state Constitution. While the state Supreme Court declined to hear the case last year, it did not rule on the merits and left the door open to pursuing the case in district and appeals court, which plaintiffs then pursued.
Read the Mississippi Supreme Court ruling on the medical cannabis initiative below: