While the Senate prepares to take up a must-pass defense bill, marijuana reform is in the mix in several respects.
As part of advancing the National Defense Authorization Act (NDAA), leaders are also seeking to attach separate broader intelligence legislation that had included a provision preventing the denial of security clearances over cannabis when it was approved by a Senate committee earlier this year.
But now, two GOP senators have protested the inclusion of the marijuana language and it has been dropped from the measure, prompting the sponsor to separately file new, broader amendments on the issue.
One of the latest proposals from Sen. Ron Wyden (D-OR) would prevent the denial of federal security clearances for people over cannabis use at any time, while the other would limit the protection only to people who admit to past use prior to entering national security vetting.
The House passed its own version of the NDAA in July, and that legislation included provisions on marijuana banking, psychedelics research, veterans’ medical cannabis access and more.
On the Senate side, Wyden filed the new security clearance amendments on Wednesday after Sens. Chuck Grassley (R-IA) and John Cornyn (R-TX) raised an objection to attaching the Intelligence Authorization Act to NDAA if it included his previous marijuana security clearance provision that was approved by the Intelligence Committee over the summer.
Two Senate sources confirmed that objections from Grassley and Cornyn were the reason for the cannabis language being dropped from the new intelligence act amendment to NDAA. Marijuana Moment reached out to the GOP senators’ offices for comment, but representatives were not immediately available.
“Some form of cannabis is legal in almost every state at this point, yet our federal laws are stuck in the era of ‘reefer madness.’ People seeking clearances to serve their country should not be disqualified for cannabis use,” Wyden told Marijuana Moment on Friday. “Our national security depends on the intelligence community’s ability to recruit the best people for the job. I hope Senate Republicans will get out of the way and get on board so we can make these commonsense reforms.”
Cornyn separately blocked a House-passed bipartisan cannabis research bill from an expedited Senate floor vote this week by raising an objection to its consideration under unanimous consent. A House source said that action wasn’t necessarily reflective of Cornyn’s position on the legislation; rather, he is reportedly planning to hold up any House bills from going to the floor under unanimous consent in response to the House not advancing his own bills.
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Meanwhile, when it comes to NDAA, one of Wyden’s new amendments stipulates that “use of cannabis by an individual shall not be determinative to adjudications of the individual’s eligibility for access to classified information or eligibility to hold a sensitive position.”
The second, more limited amendment that Wyden is sponsoring alongside Sen. Kirsten Gillibrand (D-NY) only applies to past marijuana use. It says that the “use of cannabis by an individual that occurs prior to the individual’s initiation of a national security vetting process shall not be determinative to adjudications of the individual’s eligibility for access to classified information or eligibility to hold a sensitive position.”
Wyden’s earlier Intelligence Authorization Act amendment had already been watered down in committee prior to being adopted.
As introduced, the senator’s measure would have “prohibited any Federal agency from denying or revoking an individual’s eligibility for access to classified information solely because of past or present use of cannabis.”
It was changed to make it so only past cannabis use would be covered, and that the protection would only apply to people who work for intelligence agencies, rather than any federal agency.
Meanwhile, Sens. Alex Padilla (D-CA) and Dianne Feinstein (D-CA) proposed a separate NDAA amendment that calls for federal, state, tribal and local collaboration to address remediation of lands damaged by illicit cannabis cultivation.
The security clearance provision would be welcomed by advocates, but there are significantly more drug policy reform components in the House-passed version that advocates would also like to see included in the final NDAA following bicameral negotiations.
For example, the House version currently includes proposals to protect banks that work with state-legal cannabis businesses and allow U.S. Department of Veterans Affairs (VA) doctors to issue medical marijuana recommendations.
The House adopted the banking amendment as part of last year’s NDAA as well, but the Senate didn’t go along so it was not included in the final bill.
Rep. Ed Perlmutter, sponsor of the Secure and Fair Enforcement (SAFE) Banking Act, said earlier this month that if the Senate doesn’t advance cannabis banking reform in some way, he’s prepared to “go to the nuclear option” in the House Rules Committee and hold up separate legislation like NDAA.
For this latest House NDAA, members also approved an amendment from Reps. Earl Blumenauer (D-OR) and Brian Mast (R-FL) to codify that VA doctors can discuss and issue recommendations for medical cannabis to veterans.
Rep. Nancy Mace (R-SC) had an amendment adopted that similarly provides VA doctors with that authority, but it goes further by prohibiting federal employers from discriminating against veterans who use, or have used, marijuana.
The House additionally approved a revised measure from Rep. Katherine Clark (D-MA) that expresses the sense of Congress that VA should not deny home loans to veterans because they derive income from a state-legal marijuana business. The proposal was initially introduced as an outright prohibition of such denials, but was changed to a non-binding form.
Rep. Alexandria Ocasio-Cortez (D-NY) secured two drug policy amendments to the NDAA. One that passed the House builds on a measure from Rep. Seth Moulton (D-MA), requiring the Department of Defense (DOD) to study marijuana as an opioid alternative in the treatment of service members with post-traumatic stress disorder (PTSD), traumatic brain injuries and severe pain. Ocasio-Cortez’s proposal widens the scope of that research to include psilocybin and MDMA.
Ocasio-Cortez’s amendment to prevent the use of funds for aerial fumigation on drug crops in Colombia was also adopted. The practice has been widely criticized by reform and human rights advocates.
Another psychedelics amendment that cleared the chamber this summer was sponsored by Rep. Dan Crenshaw (R-TX). It would allow the secretary of defense to approve grants for research into the therapeutic potential of certain psychedelics such as MDMA, psilocybin, ibogaine and 5–MeO–DMT for active duty military members with PTSD.
The House also passed a measure from Rep. Rashida Tlaib (D-MI) that would require DOD to study the “historically discriminatory manner in which laws related to marijuana offenses have been enforced, the potential for the continued discriminatory application of the law (whether intentional or unintentional), and recommendations for actions that can be taken to minimize the risk of such discrimination.”
Rep. Anthony Brown (D-MD) added an NDAA provision in committee to address cannabis sentencing standards under military code, mandating that the Military Justice Review Panel “develop recommendations specifying appropriate sentencing ranges for offenses involving the use and possession of marijuana.”
Another drug policy amendment attached to the House bill by Rep. Mikie Sherrill (D-NJ) seeks to eliminate the federal sentencing disparity between crack and powder cocaine.
Whether senators will go along with enacting any of these reforms in the final bill remains to be seen, but they would not be included under Senate leaders’ proposed amendment to entirely substitute the language of the House bill with the chamber’s own approach that will be considered when lawmakers return to Capitol Hill after the midterm elections.
With respect to the security clearance proposals, several lawmakers have pushed for similar reform in recent years.
Prior to the House vote to pass a federal marijuana legalization bill in April, Rep. Jamie Raskin (D-MD) filed an amendment to require federal agencies to review security clearance denials going back to 1971 and retroactively make it so cannabis could not be used “as a reason to deny or rescind a security clearance.” But that measure was narrowly defeated in a floor vote.
Late last year, the director of national intelligence (DNI) issued a memo saying that federal employers shouldn’t outright reject security clearance applicants over past use and should use discretion when it comes to those with cannabis investments in their stock portfolios.
A spokesperson in the DNI’s office told Marijuana Moment at the time that “increased legalization of marijuana use at state and local levels has prompted questions on how the federal government treats an individual’s involvement with marijuana to determine eligibility for national security positions or access to classified information.”
Meanwhile, FBI updated its hiring policies in 2020 to make it so candidates are only automatically disqualified from joining the agency if they admit to having used marijuana within one year of applying. Previously, prospective employees of the agency could not have used cannabis within the past three years.
Former FBI Director James Comey in 2014 suggested that he wanted to loosen the agency’s employment policies as it concerns marijuana, as potential skilled workers were being passed over due to the requirement.
“I have to hire a great work force to compete with those cyber criminals and some of those kids want to smoke weed on the way to the interview,” he said at the time.
Also, in 2020, CIA said that it doesn’t necessarily believe using illegal drugs makes you a bad person.