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Analysis: Breaking Down Congress’s Vote To Protect Legal Marijuana States From Federal Enforcement

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In one of the most significant legislative victories in the history of the marijuana reform movement, an amendment blocking the Department of Justice from interfering in state-legal cannabis programs was approved for the first time in the U.S. House of Representatives last week.

In a 267-165 vote, the measure passed handily, drawing support from all but eight Democrats and nearly a quarter of the Republican caucus. The amendment’s passage seems to affirm what advocates have suspected—that broad reform is within arm’s reach in the 116th Congress.

But a closer look at the vote tally reveals subtle trends, dissents, individual vote flips and developments that paint a fuller picture of the state of marijuana politics in the Democratic-controlled chamber.

First, a top-level look: the last time this amendment was up for consideration in 2015, it came nine flipped votes short of passing, with a final tally of 206-222. It gained 61 “yes” votes in that time, which is a reflection of evolving public opinion on the issue and was also likely influenced by the fact that several sizable states such as California, Michigan and Illinois have since opted to legalize cannabis, putting pressure on lawmakers to embrace a policy that protects their constituents from federal harassment.

State Action Makes A Difference

Geographic changes in the vote tally can be seen in the images below, courtesy of GovTrack.us. Blue represents Democrats and red represents Republicans, with dark shading indicating “yes” votes and lighter shading standing for “no” votes.

2015:

2015 vote, via GovTrack.us

2019:

2019 vote, via GovTrack.us

Among states that legalized adult-use marijuana subsequent to the prior amendment’s consideration, here’s how the the number of “yes” votes for the measure grew:

  • California: 40 vs. 46
  • Illinois: 10 vs. 14
  • Massachusetts: 6 vs. 9
  • Maine: 1 vs. 2
  • Michigan: 6 vs. 10
  • Nevada: 2 vs. 3
  • Vermont: 1 vs. 1

But not all of the growth came from states that have recently enacted legalization. All told, 20 individual members who were present for the prior amendment’s consideration switched their vote from “nay” to “aye” since 2015.

“No” to “yes” votes:

  • Rep. Karen Bass (D-CA)
  • Rep. Joyce Beatty (D-OH)
  • Rep. Yvette Clarke (D-NY)
  • Rep. Emanuel Cleaver II (D-MO)
  • Rep. Jim Cooper (D-TN)
  • Rep. Debbie Dingell (D-MI)
  • Rep. Bob Gibbs (R-OH)
  • Rep. Morgan Griffith (R-VA)
  • Rep. William Keating (D-MA)
  • Rep. Joseph Kennedy (D-MA)
  • Rep. Dan Lipinski (D-IL)
  • Rep. Stephen Lynch (D-MD)
  • Rep. Tom Reed II (R-NY)
  • Rep. Lucille Roybal-Allard (D-CA)
  • Rep. Terri Sewell (D-AL)
  • Rep. Mike Simpson (R-ID)
  • Rep. Paul Tonko (D-NY)
  • Rep. Marc Veasey (D-TX)
  • Rep. Filemon Vela (D-TX)
  • Rep. Greg Walden (R-OR)

Meanwhile, seven members flipped their votes in the opposite direction.

“Yes” to “no” votes:

  • Rep. Rob Bishop (R-UT)
  • Rep. Mo Brooks (R-AL)
  • Rep. Vern Buchanan (R-FL)
  • Rep. Jeff Duncan (R-SC)
  • Rep. Barry Loudermilk (R-GA)
  • Rep. Scott Perry (R-PA)
  • Rep. Scott Tipton (R-CO)

Support And Opposition Across Party Lines

The measure enjoyed some bipartisan support, but while a sizable bloc of members joined the “aye” side, there were actually four fewer total Republicans who voted in favor of the amendment this round as compared to 2015. Why? The shift is partially related to loss of marijuana-friendly GOP members in the 2018 midterm election. For example, Reps. Dana Rohrabacher (R-CA), Carlos Curbelo (R-FL) and Mike Coffman (R-CO) each voted in favor of the 2015 amendment and otherwise championed cannabis reform to some extent, but lost reelection bids last year.

Plus there are those noted above who actually supported the measure last time but voted against it this year.

Perhaps some members took issue with the broader language of the new version, which extended protections to Washington, D.C. and U.S. territories, unlike the prior amendment, which lined up more squarely with Republican “states’ rights” views.

Another explanation could come down to partisanship. GOP Congressman Tom McClintock of California was the lead sponsor of the 2015 version, when Republicans controlled the House, whereas Rep. Earl Blumenauer (D-OR) took the helm this year, with McClintock as a cosponsor. With dozens of amendments to consider in a row in floor voting blocks of just two minutes each, it’s within reason to assume that some lawmakers approached some votes along party lines, leading some Republicans to vote for the prior measure led by their caucus-mate in 2015 after a quick glance.

An even simpler answer to the question of why there were fewer Republican “aye” vote this time is that there are just fewer GOP members in the chamber to begin with in light of Democrats’ electoral success in last year’s midterms in which they readily won control of the chamber.

Regardless, the 267-vote win is remarkable. More members voted for this amendment than they did for a narrower measure that simply prevented Justice Department interference in state medical cannabis programs in 2015. That tally was 242-186.

After the amendment was adopted, questions remained about the eight Democratic members who voted against the measure, given that marijuana reform is widely popular, especially among the party’s voters.

The most noteworthy Democratic “nay” vote came from Rep. Debbie Wasserman Schultz, the former chair of the Democratic National Committee, who has historically been opposed to many cannabis reform measures. She was joined by Reps. Henry Cuellar (D-TX), Sharice Davids (D-KS), Josh Gottheimer (D-NJ), Conor Lamb (D-PA), Collin Peterson (D-MN), Tom Suozzi (D-NY) and Jeff Van Drew (D-NJ) in opposing the measure.

But overall, Democratic members sent a forceful message about where the party stands on the issue. Leadership sent a “yes” recommendation in a whip email distributed before the vote, and presidential candidates and even some who’ve historically been reluctant to back cannabis reform joined hands to push the measure forward.

Presidential hopefuls Reps. Tulsi Gabbard (D-HI) and Seth Moulton (D-MA) voted for it. (Other contenders Reps. Eric Swalwell (D-CA) and Tim Ryan (D-OH) were absent for the vote as well as others taking place on Thursday.)

Leadership votes in favor of the amendment include Judiciary Committee Chair Rep. Jerry Nadler (D-NY); Appropriations Committee Chair Rep. Nita Lowey (D-NY); Commerce, Justice and Science Appropriations Subcommittee Chair Rep. Jose Serrano (D-NY); Majority Leader Steny Hoyer (D-MD); Deputy Speaker Ben Ray Luján (D-NJ) and Majority Whip Jim Cylburn (D-SC).

Every Democratic member of the Judiciary Committee voted in favor of the measure—another positive sign as lawmakers continue to pursue various pieces of marijuana legislation that will likely have to pass through the panel.

Curiously, however, Rep. Doug Collins (R-GA), minority ranking member on the Judiciary who’s advocated for a separate bill to let states set their own cannabis policies, voted against the amendment. That said, McClintock and other GOP members of the panel—Reps. Kelly Armstrong (R-ND), Ken Buck (R-CO), Matt Gaetz (R-FL), Guy Reschenthaler (R-PA) and Gregory Steube (R-FL)—voted for the measure, indicating that broad legislation to reform federal cannabis laws could sail through the Judiciary Committee with solid bipartisan support.

On the Democratic side, Reps. Joe Kennedy (D-MA) and Rep. Dan Lipinski (D-IL), who have historically been hostile to cannabis reform, also voted for the measure this time around.

On the flip side, here are all 41 Republicans who bucked party leadership in voting in favor of the amendment:

  • Rep. Justin Amash (R-MI)
  • Rep. Kelly Armstrong (R-ND)
  • Rep. Don Bacon (R-NE)
  • Rep. Troy Balderson (R-OH)
  • Rep. Ken Buck (R-CO)
  • Rep. Chris Collins (R-NY)
  • Rep. James Comer (R-KY)
  • Rep. Rodney Davis (R-IL)
  • Rep. Russ Fulcher (R-ID)
  • Rep. Matt Gaetz (R-FL)
  • Rep. Greg Gianforte (R-MT)
  • Rep. Bob Gibbs (R-OH)
  • Rep. Anthony Gonzalez (R-OH)
  • Rep. Jenniffer González-ColĂłn (R-PR)
  • Rep. Tom Graves (R-GA)
  • Rep. Morgan Griffith (R-VA)
  • Rep. Kevin Hern (R-OK)
  • Rep. Trey Hollingsworth (R-IN)
  • Rep. Duncan Hunter (R-CA)
  • Rep. Dave Joyce (R-OH)
  • Rep. Thomas Massie (R-KY)
  • Rep. Brian Mast (R-FL)
  • Rep. Tom McClintock (R-CA)
  • Rep. Paul Mitchell (R-MI)
  • Rep. Dan Newhouse (WA)
  • Rep. Amata Radewagen (R)
  • Rep. Tom Reed (R-NY)
  • Rep. Guy Reschenthaler (R-PA)
  • Rep. Tom Rice (R-SC)
  • Rep. Denver Riggleman (R-VA)
  • Rep. Mike Rogers (R-AL)
  • Rep. Chip Roy (R-TX)
  • Rep. David Schweikert (R-AZ)
  • Rep. Mike Simpson (R-ID)
  • Rep. Greg Steube (R-FL)
  • Rep. Fred Upton (R-MI)
  • Rep. Greg Walden (R-OR)
  • Rep. Michael Waltz (R-FL)
  • Rep. Steve Watkins (R-KS)
  • Rep. Ted Yoho (R-FL)
  • Rep. Don Young (R-AK)

Who Voted To Let The Feds Arrest Their Constituents?

While the increased number of votes in favor of the amendment seems to correspond, in part, with the rising number of states with legal marijuana programs, there were 17 members representing legal states who voted against protecting consumers who participate in their state’s cannabis system. Here’s a breakdown:

California

  • Rep. Ken Calvert (R)
  • Rep. Paul Cook (R)
  • Rep. Doug LaMalfa (R)
  • Rep. Devin Nunes (R)
  • Minority Leader Kevin McCarthy (R)

Colorado

  • Rep. Doug Lamborn (R)
  • Rep. Scott Tipton (R)

Illinois

  • Rep. Mike Bost (R)
  • Rep. Adam Kinzinger (R)
  • Rep. Darin LaHood (R)
  • Rep. John Shimkus (R)

Michigan

  • Rep. Jack Bergman (R)
  • Rep. Bill Huizenga (R)
  • Rep. John Moolenarr (R)
  • Rep. Tim Walberg (R)

Nevada

  • Rep. Mark Amodei (R)

Washington

  • Rep. Cathy McMorris Rodgers (R)

Advocates walked away with a demonstrable win on Thursday but, as a final note, the roll call tally might well have been even larger if it weren’t for certain absentees. Besides Ryan and Swalwell, those members include Reps. Alcee Hastings (D-FL), Ann Kirkpatrick (D-AZ) and Tom Emmer (R-MN)—all of whom voted in favor of the measure in 2015. There was just one member absent from the latest vote who voted against it last time.

Another indicator bodes well for the future of marijuana reform by demonstrating growing support from political newcomers is that among current members of Congress who weren’t in office during the 2015 vote, 98 voted in favor of the amendment while 50 voted against it.

Though advocates are celebrating the historic victory in the House, it remains to be seen whether the Republican-controlled Senate has an appetite for reform. That chamber’s Appropriations Committee is expected to begin its consideration of appropriations legislation that a similar amendment could potentially be attached to within the next few weeks.

Congressman Withdraws Veterans Marijuana Measure Amid VA Opposition

Photo courtesy of Philip Steffan.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

Politics

Bernie Sanders Asks Campaign Rally Audience To Share Stories About Marijuana Arrests

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Sen. Bernie Sanders (I-VT) asked an audience in South Carolina to share stories about marijuana possession convictions and then argued that those anecdotes help to demonstrate the case for national legalization.

During a campaign stop in the early primary state on Sunday, the 2020 Democratic presidential candidate asked people to raise their hands if they knew someone who’d been arrested for possessing cannabis. There was no shortage of hands raised.

“Holy God, whoa. That’s a lot of people,” Sanders said before asking for volunteers to go into detail.

“I got caught with about a joint and they took my license for a year and I lost my job,” an audience member said. “Ended up losing my house, and it went worse from there.”

“Wow, this is for smoking a joint?” Sanders asked.

“Yeah, I had a little—like a dime bag in my car,” the person said.

Another person in attendance who appeared in the campaign video Sanders released on Tuesday said that she visited a guilty plea court and witnessed “three different men get put in at least two years of prison just for anywhere from two grams to eight grams of marijuana found on them.”

“That’s why all over this country states are doing the right thing and either decriminalizing or legalizing the possession of marijuana,” Sanders said to applause.

Since becoming the first major party presidential candidate to call for cannabis legalization in 2015, Sanders has continued to place an emphasis on the need for marijuana reform, with a focus on the racial injustices of prohibition.

Last month, he released a criminal justice reform plan that included proposals to legalize cannabis federally and also provide for safe injection sites to curb opioid overdoses.

But while Sanders has been a leading voice in the drug policy reform movement, he’s said twice in recent weeks that he’s not ready to embrace decriminalizing possession of drugs beside marijuana.

Joe Biden Says Marijuana Should Remain Illegal As A Misdemeanor At Democratic Debate

Photo courtesy of Lorie Shaull.

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New York Gov. Cuomo Hints Marijuana Smoking Ban Could Be Part Of Next Legalization Push

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New York Gov. Andrew Cuomo (D) seemed to suggest that he might want a ban on smoking marijuana included in legalization legislation when lawmakers take up the issue again next year.

During an interview with MSNBC on Sunday, the governor was asked whether the spike in apparent vaping-related lung injuries and deaths, which experts attribute to altered nicotine and cannabis oils primarily purchased on the illicit market, has made him reconsider pursuing legalization in the state.

“No,” he said, adding that his administration is “not in favor of smoking marijuana” and that there are “ways to get THC without smoking marijuana.”

“People are vaping THC, yes that is true,” Cuomo said. “We think that from a public health point of view, that is not something that we recommend and we think it’s dangerous—smoking of any kind.”

“You can legalize marijuana and sell THC in compounds that do not require you to smoke the marijuana, and we do not support smoking of marijuana,” he said. “There are compounds that have the THC, which is a compound in marijuana, that you don’t smoke.”

It’s not entirely clear if Cuomo plans to ask for a smoking ban the next time a legalization bill emerges or if he was simply outlining an administrative position advising against smoking. A spokesperson for his office did not respond to Marijuana Moment’s request for comment by the time of publication.

But while there was no ban on marijuana smoking included in legalization legislation that he worked to pass earlier this year, it wouldn’t be entirely out of character given that he pushed for such a restriction as part of New York’s medical cannabis program in legislation enacted in 2014.

The logic behind that policy, according to Cuomo, was that it would prevent people from abusing the program. If he moved to incorporate a ban for adult-use legalization, however, it would presumably be a public health decision.

That could create problems when lawmakers return to the negotiating table. In California, flower and concentrates represent about 70 percent of the marijuana market, meaning any attempt to ban smokeable cannabis will likely be met with pushback from consumers, industry stakeholders and civil liberties-minded reform advocates.

Industry players seemed to have influence when Cuomo included a ban on home cultivation for personal use in his prior legalization proposal—something a major medical cannabis association recommended in a policy statement submitted to the governor.

For the time being, however, there don’t seem to be tangible plans to include a smoking ban in future cannabis legislation and it could be that the governor simply ends up pushing for public education campaigns discouraging the activity rather than keeping it illegal.

Cuomo has made clear that legalization would again be an administrative priority after negotiations failed to produce a passable bill last session.

In July, he signed legislation broadening New York’s decriminalization law and creating a pathway for expungements for individuals with prior cannabis convictions.

Former White House Drug Czar Offers Marijuana Legalization Advice To Mexico

Photo courtesy of MSNBC.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.
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Mitch McConnell Tells FDA To Clear A Path For CBD Products Though Spending Bill Directive

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Senate Majority Leader Mitch McConnell (R-KY) is moving to insert language into a congressional spending report that calls on the Food and Drug Administration (FDA) to clear a path for the lawful marketing of hemp-derived CBD products.

FDA has said that allowing CBD to be sold as food items or dietary supplements would require it to develop alternative regulations that could take years to complete without congressional action. But McConnell, who was the chief proponent of a hemp legalization provision of the 2018 Farm Bill, isn’t interested in waiting around.

In draft language shared by the U.S. Hemp Roundtable on Tuesday, the senator is asking FDA to “issue a policy of enforcement discretion with regard to certain products containing CBD” within 120 days—a move that industry stakeholders say will clarify rules so that banks are more willing to service CBD companies.

The provision of the spending report was marked up in the Senate Appropriations Subcommittee on Agriculture on Tuesday. It will go before the full Appropriations Committee on Thursday.

Prior to issuing its enforcement discretion policy under McConnell’s report language, FDA would have to submit a report to the committee within 90 days detailing its “progress toward obtaining and analyzing data to help determine a policy of enforcement discretion, and the process in which CBD meeting the definition of hemp will be evaluated for use in products.”

Once those provisional enforcement guidelines are established, they would remain in place until FDA finalizes the regulatory process.

“FDA is encouraged to consider existing and ongoing medical research related to CBD that is being undertaken pursuant to an Investigation New Drug (IND) application in the development of a regulatory pathway for CBD in products under the jurisdiction of FDA and to ensure that any future regulatory activity does not discourage the development of new drugs,” the report states.

Outside of McConnell’s proposal, the FDA and U.S. Department of Agriculture (USDA) appropriations legislation already sets aside $2 million to support research and regulatory activities surrounding hemp-derived CBD products and $16.5 million for the broader hemp production program.

During the subcommittee meeting on Thursday, Sen. Jeff Merkley (D-OR) praised the bill’s support for hemp legalization implementation.

“You might note that this year in Oregon, the hemp industry may well be a billion dollar crop, and that is an incredible addition to income for our agricultural community,” he said.

The legalization of hemp and its derivatives has been met with intense interest from manufacturers and lawmakers alike, but limitations on the marketability of CBD has been an ongoing source of frustration.

Last week, a bipartisan pair of lawmakers asked fellow House members to join them in signing a letter to the head of FDA that similarly asks for enforcement discretion guidelines allowing companies to sell CBD products.

The House, which approved its version of appropriations legislation for the upcoming fiscal year prior to the summer recess, included a separate amendment that would require FDA to establish rules providing for the lawful marketing of CBD in food and dietary supplements.

Meanwhile, USDA is expected to soon release its broader hemp regulations soon.

Read McConnell’s full CBD report language below:

“As previously mentioned, the Committee provides $2,000,000 for research, policy evaluation, market surveillance, issuance of an enforcement discretion policy, and appropriate regulatory activities with respect to products under the jurisdiction of the Food and Drug Administration which contain cannabidiol (CBD) and meet the definition of hemp, as set forth in section 297A of the Agricultural Marketing Act of 1946 (7 U.S.C. 1639o). Within 90 days, FDA shall provide the Committee with a report regarding the Agency’s progress toward obtaining and analyzing data to help determine a policy of enforcement discretion, and the process in which CBD meeting the definition of hemp will be evaluated for use in products. Within 120 days, FDA shall issue a policy of enforcement discretion with regard to certain products containing CBD meeting the definition of hemp as defined by section 297A of the Agricultural Marketing Act of 1964 (7 U.S.C. 1639). Such enforcement discretion shall be in effect until FDA establishes a process for stakeholders to notify FDA for use of CBD in products that include safety studies for intended use per product, and makes a determination about such product. FDA is encouraged to consider existing and ongoing medical research related to CBD that is being undertaken pursuant to an Investigation New Drug (IND) application in the development of a regulatory pathway for CBD in products under the jurisdiction of FDA and to ensure that any future regulatory activity does not discourage the development of new drugs.”

Bipartisan Lawmakers Circulate Letter Urging FDA To Back Off CBD Companies

This story was updated to include comment from Merkley.

Photo courtesy of Senate Majority Leader Mitch McConnell.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.
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