“We should think of cannabis reform as a process rather than a moment. It will take years to get right. But Democrats and Republicans need to trust the federal government can get it right while respecting the rights of states.”
By Brendan Belair, former House Judiciary Committee Republican staff director
In the spring of 2012, I sat in a room with House Republican leadership as they debated how to approach gay marriage. At that point, same-sex marriage was legal in several conservative states. Members respected the rights of states to act, and some advocated for legislation recognizing the state and federal divide, but no consensus was reached. Although everyone recognized federal legalization was inevitable, inertia prevented a unified Republican approach.
Fast forward three years to 2015 when the Supreme Court legalized gay marriage, with Democrats claiming victory. Republicans were largely silent. In the following election cycle, the issue was absent from Republican presidential politics. The politics of gay marriage moved slowly, until they didn’t.
Cannabis now sits in a similar position. The 2020 election cycle saw conservative states like Arizona and South Dakota vote to fully legalize cannabis. Thirsty-six states have now legalized medical marijuana in direct conflict with the federal ban contained in the Controlled Substances Act. Like gay marriage, the states and public momentum are outpacing Republican congressional politics.
While in the 116th Congress, Republicans did support thoughtful legislation like the SAFE Banking Act and the STATES Act. This Congress, Republicans must take a step further. Both pieces of legislation provided a safe harbor for states that legalized cannabis in direct contradiction to federal ban, but neither legislative proposal did anything to facilitate interstate commerce, and in providing a “safe harbor” would invite costly and likely numerous legal challenges. Rather than tinker around the edges of an outdated and frankly anti-individual policy choice with various constructs of “safe harbor” protections, it’s time for Congress to move past inertia and pass the policy that matters—removing the federal ban entirely.
States would still be able to prohibit marijuana within their borders. Indeed, Mississippi prevented the sale of alcohol for nearly 35 years after federal prohibition ended. Likewise, six states have never sold a lottery ticket. States are very capable of making these decisions without a ban from the federal government.
While the STATES Act might not be the answer, a bipartisan approach certainly is. In 2019, the STATES Act was picking up bipartisan and bicameral cosponsors while the SAFE Banking Act received 40 percent of Republicans’ votes on the House Floor. Yet 2020 saw the prospect of bipartisan cannabis reform become little more than a distant memory. Cannabis reform legislation quickly devolved into a political football as part of COVID-19 relief negotiations, becoming a favorite Republicans talking point against the relief efforts. And Democrats elected to put the MORE Act on the House Floor, netting only five Republicans votes. If the idea is to push Senate Republicans into action, five House votes will not suffice.
This Congress, Democrats control the House, Senate and White House, much like Republicans did in the 115th Congress. In that Congress, Rep. Doug Collins (R-GA) decided to tackle the issue of criminal justice reform—an issue that enjoyed broad bipartisan and bicameral Congressional support, overwhelming public support, and yet was still mired in decades of federal inaction.
I was in the room many times with Collins and Rep. Hakeem Jeffries (D-NY) as they negotiated the First Step Act. Our teams were in daily contact. We made tweaks, postponed markups and had disagreements with stakeholders, but through it all we had one thing missing in today’s movement: trust.
We should think of cannabis reform as a process rather than a moment. It will take years to get right. But Democrats and Republicans need to trust the federal government can get it right while respecting the rights of states. Democrats need to make room at the table for Republicans, and Republicans need to show up willing to do the work. Here’s hoping trust and compromise win the day. Because if they do, the politics of cannabis could move quickly, even in this climate. Because at the end of the day, it’s the American people who once again stand to pay the price for Congressional inertia.
Brendan Belair is the former Republican staff director of the House Judiciary Committee.