A bipartisan group of senators is stepping up the push to let marijuana businesses store their profits in banks, with a possible vote coming as soon as this week.
Under the current federal prohibition of cannabis, many banks refuse to do businesses with marijuana growers, processors and sellers that operate legally in accordance with a growing number of state laws. As a result, many cultivators and dispensaries operate on a cash-only basis, which makes them targets for robberies.
That could soon change under a proposal that ten U.S. senators filed on Wednesday.
The measure, led by Sens. Jeff Merkley (D-OR) and Lisa Murkowski (R-AK), would prevent federal officials from punishing a financial service provider “solely because the depository institution provides or has provided financial services to a cannabis-related legitimate business.”
It is an amendment to a larger bill being considered on the Senate floor this week that would remove some restrictions that were enacted on financial institutions as part of the 2010 Dodd-Frank Act.
Despite a U.S. Department of Justice move in January to undo protections for state marijuana laws, a top Trump administration official has repeatedly indicated he wants to solve cannabis businesses’ banking access problems.
During a separate House hearing last month, Mnuchin indicated he wants cannabis businesses to be able to store their profits in banks.
“I assure you that we don’t want bags of cash,” he said. “We do want to find a solution to make sure that businesses that have large access to cash have a way to get them into a depository institution for it to be safe.”
Prior to being confirmed by the Senate last year, Mnuchin said in response to written questions from a senator that marijuana businesses’ banking and tax issues are “very important.”
In 2014, under the Obama administration, the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) published a memo outlining how banks can open accounts for cannabis businesses without triggering federal enforcement actions. But because the document did not change overarching federal laws, many banks have remained reluctant to work with marijuana providers.
In January, U.S. Attorney General Jeff Sessions rescinded a broader Obama-era policy that had generally allowed states to implement their own marijuana laws without Justice Department interference. That decision spurred concern that the Trump administration will delete the banking memo too.
Late in January, a Treasury official wrote in a letter to lawmakers that the department is “consulting with law enforcement” about whether to keep the cannabis guidance for depository institutions.
The policy remains in effect for now, a Mnuchin deputy testified at a Senate hearing.
Along with Merkley and Murkowski, the other cosponsors of the new cannabis banking amendment are Sens. Patty Murray (D-WA), Ron Wyden (D-OR), Rand Paul (R-KY), Michael Bennet (D-CO), Edward Markey (D-MA), Elizabeth Warren (D-MA), Bernie Sanders (I-VT) and Kamala Harris (D-CA).
It is currently unknown if the measure will receive a floor vote as part of the consideration of the broader banking reform bill.
Documents released by FinCEN late last year showed that the number of banks willing to work with the marijuana industry has steadily grown over time, but that data was compiled prior to the revocation of the Justice Department guidance on state cannabis laws.
Read the full text of the bipartisan marijuana banking amendment below:
SA 2107. Mr. MERKLEY (for himself, Ms. Murkowski, Mrs. Murray, Mr. Wyden, Mr.Paul, Mr. Bennet, Mr. Markey, Ms. Warren, Mr. Sanders, and Ms. Harris) submitted an amendment intended to be proposed by him to the bill S. 2155, to promote economic growth, provide tailored regulatory relief, and enhance consumer protections, and for other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. ___. SECURE AND FAIR ENFORCEMENT BANKING.
(a) Short Title.–This section may be cited as the “Secure and Fair Enforcement Banking Act” or the “SAFE Banking Act”.
(b) Safe Harbor for Depository Institutions.–A Federal banking regulator may not–
(1) terminate or limit the deposit insurance or share insurance of a depository institution under the Federal Deposit Insurance Act (12 U.S.C. 1811 et seq.) or the Federal Credit Union Act (12 U.S.C. 1751 et seq.) solely because the depository institution provides or has provided financial services to a cannabis-related legitimate business;
(2) prohibit, penalize, or otherwise discourage a depository institution from providing financial services to a cannabis-related legitimate business or to a State or Indian tribe that exercises jurisdiction over cannabis-related legitimate businesses;
(3) recommend, incentivize, or encourage a depository institution not to offer financial services to the owner, operator, or an individual that is an account holder of a cannabis-related legitimate business, or downgrade or cancel financial services offered to an account holder of a cannabis-related legitimate business solely because–
(A) the account holder later becomes a cannabis-related legitimate business; or
(B) the depository institution was not aware that the account holder is the owner or operator of a cannabis-related legitimate business; and
(4) take any adverse or corrective supervisory action on a loan to an owner or operator of–
(A) a cannabis-related legitimate business solely because the business owner or operator is a cannabis-related business without express statutory authority, as in effect on the day before the date of enactment of this Act; or
(B) real estate or equipment that is leased or sold to a cannabis-related legitimate business solely because the owner or operator of the real estate or equipment leased or sold the equipment or real estate to a cannabis-related legitimate business.
(c) Protections Under Federal Law.–
(1) In general.–In a State, political subdivision of a State, or Indian country that allows the cultivation, production, manufacturing, transportation, display, dispensing, distribution, sale, or purchase of cannabis pursuant to a law (including regulations) of the State, political subdivision of the State, or the Indian tribe that has jurisdiction over the Indian country, as applicable, a depository institution and the officers, director, and employees of the depository institution that provides financial services to a cannabis-related legitimate business may not be held liable pursuant to any Federal law (including regulations)–
(A) solely for providing the financial services pursuant to the law (including regulations) of the State, political subdivision of the State, or Indian tribe; or
(B) for further investing any income derived from the financial services.
(2) Forfeiture.–A depository institution that has a legal interest in the collateral for a loan made to an owner or operator of a cannabis-related legitimate business, or to an owner or operator of real estate or equipment that is leased or sold to a cannabis-related legitimate business, shall not be subject to criminal, civil, or administrative forfeiture of that legal interest pursuant to any Federal law for providing the loan or other financial services solely because the collateral is owned by a cannabis-related business.
(d) Rule of Construction.–Nothing in this section shall require a depository institution to provide financial services to a cannabis-related legitimate business.
(e) Requirements for Filing Suspicious Activity Reports.–Section 5318(g) of title 31, United States Code, is amended by adding at the end the following:
“(5) Requirements for cannabis-related businesses.–
“(A) Definitions.–In this paragraph–
“(i) the term `cannabis’ has the meaning given the term `marihuana’ in section 102 of the Controlled Substances Act (21 U.S.C. 802);
“(ii) the term `cannabis-related legitimate business’ has the meaning given the term in section 6 of the SAFE Banking Act;
“(iii) the term `financial service’ means a financial product or service, as defined in section 1002 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. 5481);
“(iv) the term `Indian country’ has the meaning given the term in section 1151 of title 18; and
“(v) the term `Indian tribe’ has the meaning given the term in section 102 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a).
“(B) Reporting of suspicious transactions.–A financial institution or any director, officer, employee, or agent of a financial institution that reports a suspicious activity related to a transaction by a cannabis-related legitimate business shall comply with appropriate guidance issued by the Financial Crimes Enforcement Network. The Secretary shall ensure that the guidance is consistent with the purpose and intent of the SAFE Banking Act and does not inhibit the provision of financial services to a cannabis-related legitimate business in a State, political subdivision of a State, or Indian country that has allowed the cultivation, production, manufacturing, transportation, display, dispensing, distribution, sale, or purchase of cannabis, or any other conduct relating to cannabis, pursuant to law or regulation of the State, the political subdivision of the State, or Indian tribe that has jurisdiction over the Indian country.”.
(f) Definitions.–In this section:
(1) Cannabis.–The term “cannabis” has the meaning given the term “marihuana” in section 102 of the Controlled Substances Act (21 U.S.C. 802).
(2) Cannabis product.–The term “cannabis product” means any article which contains cannabis, including an article which is a concentrate, an edible, a tincture, a cannabis-infused product, or a topical.
(3) Cannabis-related legitimate business.–The term “cannabis-related legitimate business” means a manufacturer, producer, or any person or company that–
(A) engages in any activity described in subparagraph (B) pursuant to a law established by a State or a political subdivision of a State; and
(B)(i) participates in any business or organized activity that involves handling cannabis or cannabis products, including cultivating, producing, manufacturing, selling, transporting, displaying, dispensing, distributing, or purchasing cannabis or cannabis products; or
(I) any financial service, including retirement plans or exchange traded funds, relating to cannabis; or
(II) any business services, including the sale or lease of real or any other property, legal or other licensed services, or any other ancillary service, relating to cannabis.
(4) Company.–The term “company” means a partnership, corporation, association, (incorporated or unincorporated), trust, estate, cooperative organization, State, or any other entity.
(5) Depository institution.–The term “depository institution” means–
(A) a depository institution as defined in section 3(c) of the Federal Deposit Insurance Act (12 U.S.C. 1813(c));
(B) a Federal credit union as defined in section 101 of the Federal Credit Union Act (12 U.S.C. 1752); or
(C) a State credit union as defined in section 101 of the Federal Credit Union Act (12 U.S.C. 1752).
(6) Federal banking regulator.–The term “Federal banking regulator” means each of the Board of Governors of the Federal Reserve System, the Bureau of Consumer Financial Protection, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the National Credit Union Administration, or any Federal agency or department that regulates banking or financial services, as determined by the Secretary of the Treasury.
(7) Financial service.–The term “financial service” means a financial product or service, as defined in section 1002 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. 5481).
(8) Indian country.–The term “Indian country” has the meaning given the term in section 1151 of title 18, United States Code.
(9) Indian tribe.–The term “Indian tribe” has the meaning given the term in section 102 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a).
(10) Manufacturer.–The term “manufacturer” means a person or company who manufactures, compounds, converts, processes, prepares, or packages cannabis or cannabis products.
(11) Producer.–The term “producer” means a person or company who plants, cultivates, harvests, or in any way facilitates the natural growth of cannabis.
(12) State.–The term “State” means each of the several States, the District of Columbia, Puerto Rico, any territory or possession of the United States.