A top Minnesota lawmaker said on Tuesday that he will soon release a bill to legalize marijuana that will be the best “in the country to date.”
During a press conference, House Majority Leader Ryan Winkler (DFL) and Sen. Jeff Hayden (DFL) said that after conducting a statewide tour to get public input on reform and discussing the issue within the party and with administration officials, they’ve reached conclusions about fundamental principles for legalization legislation that “will be drafted and ready early this session.”
“We heard from Minnesotans that our current cannabis laws are doing more harm than good,” Winkler said in a press release. “By creating a regulatory framework we can address the harms caused by cannabis and establish a more sensible set of laws to improve our health care and criminal justice systems and ensure better outcomes for communities.”
“The cannabis legal system that we have today is a failure, and the message is that we need to figure out how to move on from that,” he said. “It will be a bill that will represent the best step forward for Minnesota and should be the best legalization bill in the country to date.”
But while the legislation is expected to be released this session, the lawmakers made clear that the path to passage is politically thorny and it’s “highly likely that it will take more than one year to get it done.”
Getting the bill to House floor alone will take time, Winkler said. Despite the fact that the Democratic–Farmer–Labor party controls the chamber, there are as many as 23 committees that could have jurisdiction over provisions of the legislation.
The GOP-controlled Senate poses the most significant threat to the bill, however. A committee killed a legalization bill last year, and the panel also rejected a more modest proposal to create a task force responsible for studying cannabis reform.
“We would hope that we would have an honest discussion this time,” Hayden, the DFL assistant minority leader in the Senate, said. “I don’t think that was honest, I think that that was contrived to simply kill the bill.”
“Legalizing cannabis for adult use will offer broad benefits across the state,” he said. “This legislation will help address racial disparities in our criminal justice system, restrain a widespread illegal market, and help veterans who deserve access to affordable care to treat PTSD and chronic pain without turning to opioids.”
But Senate Majority Leader Paul Gazelka (R) previously said legalization is “not good for Minnesota” and he added earlier this month that the reform proposal won’t be on the chamber’s 2020 agenda.
Asked about the prospect of expanding the state’s medical cannabis program, as some Republicans have signaled they’d be open to, Winkler said that would be addressed in separate legislation—but he added that he didn’t believe that GOP members would even be discussing medical marijuana reform if lawmakers weren’t actively pushing for broader legalization.
“Legalization is going to happen in Minnesota, and the question is whether it happens this year, next year, the year after,” he said.
The change is coming, and we are preparing for that change by creating legislation that will address all of the harms of our existing prohibition of cannabis.”
He also gave an interesting response to a question about how a vote for legalization might play out for lawmakers in swing districts.
“Our members in less safe districts would be better off voting for it because it’s a popular provision,” he said, referring to polling data showing voter support for legalization. “Issues that are controversial in the State Capitol are not necessarily controversial with voters, and this is one of them.”
To that point, both the House and Senate conducted separate surveys last year that involved almost 20,000 respondents collectively, and both reached the same conclusion: a majority of Minnesotans are in favor of marijuana legalization.
Winkler didn’t go too far into the specifics of pending reform legislation, but he did lay out some basic principles that the party has largely accepted: taxes and regulations should be minimal to curb the illicit market; the industry should be comprised of small businesses and allow for limited home cultivation; it should be enacted comprehensively statewide rather than taking a “jurisdiction-by-jurisdiction” approach; and the bill will contain “the best equity proposal related to economic development that any state has brought forward.”
It might take time for such a bill to reach the floor, let alone the governor’s desk, but Gov. Tim Walz (D) said last year that he wants the state to start getting prepared for a legal marijuana market in any case. He directed various state agencies to begin laying the groundwork for a regulated system in anticipation of the reform move.
House Speaker Melissa Hortman (DFL) recently discussed possible legislation that could be taken up by the legislature when the session begins on February 11, and while she expressed gratitude to Winkler for advocating for marijuana reform, she said she wasn’t certain how far it would advance in the House and stressed the Republicans in the Senate remain firmly opposed to the proposal.
Photo courtesy of Brian Shamblen.
GOP Senator Presses Treasury Secretary On Tax Credits For Marijuana Businesses
A Republican senator recently pressed the head of the Treasury Department on whether marijuana businesses qualify for a federal tax benefit.
During a Senate Finance Committee hearing on Wednesday, Treasury Secretary Steven Mnuchin was asked about the “opportunity zone” tax credit, which is meant to encourage investments in “distressed,” low-income communities through benefits such as deferrals on capital gains taxes.
Sen. James Lankford (R-OK), whose state’s voters approved a medical marijuana ballot measure in 2018, told Mnuchin that businesses that derive more than five percent of their profits from things like alcohol sales are ineligible for the tax credit, but there’s “not a definition dealing with cannabis businesses.”
“Are they within that five percent amount or are they not at all because there’s a federal prohibition on cannabis sales?” the senator asked.
“I’m going to have to get back to you on the specifics,” Mnuchin replied.
“That’d be helpful to get clarity because there are cannabis businesses across the country that, if they fall in opportunity zones, they’ll need clarification on that,” Lankford said. “When you and I have spoken about it before—it’s difficult to give a federal tax benefit to something that’s against federal law.”
Lankford, who opposes legalization and appeared in a TV ad against his state’s medical cannabis ballot measure, has raised this issue with the Treasury secretary during at least two prior hearings. When he questioned whether cannabis businesses qualify for the program last year, he clarified that he personally does not believe they should.
While Mnuchin’s department has yet to issue guidance on the issue, he said in response to the earlier questioning that his understanding is that “it is not the intent of the opportunity zones that if there is this conflict [between state and federal marijuana laws] that has not been cleared that, for now, we should not have those businesses in the opportunity zones.”
Mnuchin has also been vocal about the need for Congress to address the lack of financial resources available to state-legal marijuana businesses. Because so many of these companies are forced to operate on a largely cash-only basis, he said the Internal Revenue Service has had to build “cash rooms” to store their tax deposits.
“There is not a Treasury solution to this. There is not a regulator solution to this,” he said during one hearing. “If this is something that Congress wants to look at on a bipartisan basis, I’d encourage you to do this. This is something where there is a conflict between federal and state law that we and the regulators have no way of dealing with.”
Last week’s Finance Committee hearing was centered around President Trump’s Fiscal Year 2021 budget request, which separately includes a provision calling for the elimination of an appropriations rider that prohibits the Justice Department from using its fund to interfere in the implementation of medical cannabis laws as well as a continued block on Washington, D.C. spending its own local tax dollars to legalize marijuana sales.
Photo courtesy of C-SPAN.
American Bar Association Wants Protections For Marijuana Banking And Lawyers Working With Cannabis Clients
The American Bar Association (ABA) approved two marijuana-related resolutions during its midyear meeting on Monday.
The group’s House of Delegates voted in favor of proposals endorsing pending federal legislation to protect banks that service cannabis businesses and calling for a clarification of rules to ensure that lawyers will not be penalized for representing clients in cases concerning state-legal marijuana activity.
Under the banking resolution, ABA “urges Congress to enact legislation to clarify and ensure that it shall not constitute a federal crime for banking and financial institutions to provide services to businesses and individuals, including attorneys, who receive compensation from the sale of state-legalized cannabis or who provide services to cannabis-related legitimate business acting in accordance with state, territorial, and tribal laws.”
HOD Res 103D: Adopted. Urges enactment of laws to ensure that it shall not constitute a federal crime for banks and financial institutions to provide cannabis-related services. #ABAMidyear
— American Bar Association (@ABAesq) February 17, 2020
ABA added that “such legislation should clarify that the proceeds from a transaction involving activities of a legitimate cannabis-related business or service provider shall not be considered proceeds from an unlawful activity solely because the transaction involves proceeds from a legitimate cannabis-related business or service provider, or because the transaction involves proceeds from legitimate cannabis-related activities.”
A bill that would accomplish this goal was approved by the House of Representatives last year, but it’s currently stalled in the Senate, where it awaits action in the Banking Committee. That panel’s chair, Sen. Mike Crapo (R-ID) is under pressure from industry stakeholders to advance the legislation, but he’s also heard from anti-legalization lawmakers who’ve thanked him for delaying the bill.
“Passage of the [Secure and Fair Enforcement] Banking Act or similar legislation will provide security for lawyers and firms acting to advise companies in the industry against having their accounts closed or deposits seized,” a report attached to the ABA resolution states. “This will also foster the rule of law by ensuring that those working in the state-legalized legitimate cannabis industry can seek counsel and help prevent money laundering and other crimes associated with off-the-books cash transactions.”
“Currently, the threat of criminal prosecution prevents most depository institutions from banking clients, including lawyers, who are in the stream of commerce of state-legalized marijuana. This Resolution is necessary to clarify that such provision of legal and other services in compliance with state law should not constitute unlawful activity pursuant to federal law.”
The second marijuana-related resolution ABA adopted on Monday asks Congress to allow attorneys to serve clients in cannabis cases without facing federal punishment.
Text of the measure states that the association “urges Congress to enact legislation to clarify and explicitly ensure that it does not constitute a violation of federal law for lawyers, acting in accord with state, territorial, and tribal ethical rules on lawyers’ professional conduct, to provide legal advice and services to clients regarding matters involving marijuana-related activities that are in compliance with state, territorial, and tribal law.”
HOD Res 103B: Adopted as revised. Urges enactment of laws to ensure lawyers can provide legal advice and services for clients' legal marijuana-related activities. #ABAMidyear
— American Bar Association (@ABAesq) February 17, 2020
Such a change would provide needed clarity for lawyers as more states legalize cannabis for adult use. ABA’s own rules of conduct have been a source of conflict for attorneys, as it stipulates that they “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” Federal law continues to regard marijuana as an illegal, strictly controlled substance.
An ABA report released last year made the case that there’s flexibility within that rule, however, as “it is unreasonable to prohibit a lawyer from providing advice and counsel to clients and to assist clients regarding activities permitted by relevant state or local law, including laws that allow the production, distribution, sale, and use of marijuana for medical or recreational purposes so long as the lawyer also advises the client that some such activities may violate existing federal law.”
A new report attached to the resolution states that “statutory guidance is needed that explicitly ensures that attorneys who adhere to their state ethics rules do not risk federal criminal prosecution simply for providing legal counsel to clients operating marijuana businesses in compliance with their state law.”
“This Resolution accomplishes this elegantly by harmonizing federal criminal liability with States’ ethical rules regarding the provision of advice and legal services relating to marijuana business. If a state has legalized some form of marijuana activity and explicitly permitted lawyers to provide advice and legal services relating to such state-authorized marijuana activity, such provision of advice and legal services shall not be unlawful under the Controlled Substances Act or any other federal law.”
Last year, ABA adopted another cannabis resolution—arguing that states should be allowed to set their own marijuana policies.
Border Patrol Union Head Admits Legalizing Marijuana Forces Cartels Out Of The Market
The head of the labor union that represents U.S. Border Patrol agents acknowledged on Friday that states that legalize marijuana are disrupting cartel activity.
While National Border Patrol Council President Brandon Judd was attempting to downplay the impact of legalization, he seemed to inadvertently make a case for the regulation all illicit drugs by arguing that cartels move away from smuggling cannabis and on to other substances when states legalize.
Judd made the remarks during an appearance on C-SPAN’s Washington Journal, where a caller said that “the states that have legalized marijuana have done more damage to the cartels than the [Drug Enforcement Administration] could ever think about doing.”
“As far as drugs go, all we do is we enforce the laws. We don’t determine what those laws are,” Judd, who is scheduled to meet with President Trump on Friday, replied. “If Congress determines that marijuana is going to be legal, then we’re not going to seize marijuana.”
“But what I will tell you is when he points out that certain states have legalized marijuana, all the cartels do is they just transition to another drug that creates more profit,” he said. “Even if you legalize marijuana, it doesn’t mean that drugs are going to stop. They’re just going to go and start smuggling the opioids, the fentanyl.”
One potential solution that Judd didn’t raise would be to legalize those other drugs to continue to remove the profit motive for cartels. Former presidential candidate Andrew Yang made a similar argument in December.
Federal data on Border Patrol drug seizures seems to substantiate the idea that cannabis legalization at the state level has reduced demand for the product from the illicit market. According to a 2018 report from the Cato Institute, these substantial declines are attributable to state-level cannabis reform efforts, which “has significantly undercut marijuana smuggling.”
Additionally, legalization seems to be helping to reduce federal marijuana trafficking prosecutions, with reports showing decreases of such cases year over year since states regulated markets have come online.
In his annual report last year, Supreme Court Chief Justice John Roberts also noted reduced federal marijuana prosecutions—another indication that the market for illegally sourced marijuana is drying up as more adults consumers are able to buy the product in legal stores.