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The Debate Over How, Not Whether, Congress Should Legalize Marijuana Is Heating Up

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With a congressional committee set to hold a first-ever hearing on ending federal marijuana prohibition on Wednesday, debate among legalization advocates over which piece of cannabis reform legislation would be the most effective and politically achievable is intensifying.

A key part of that conversation concerns the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, which would amend the Controlled Substances Act (CSA) to exempt state-legal marijuana activity from federal enforcement actions.

Advocates broadly agree that passage of the STATES Act would represent a momentous development in the reform movement, providing protections for many marijuana consumers and businesses in legal states. But questions remain about what specifically the legislation would accomplish and whether it goes far enough.

Moreover, there’s disagreement about whether lawmakers and activists should invest their political capital and efforts into the bill when several others on the table—such as the Marijuana Justice Act (MJA), the Marijuana Freedom and Opportunity Act and others—would make broader changes to federal drug policy and include social equity provisions that are increasingly seen as vital components of any reform agenda.

It’s a complicated situation that will likely spark discussion at Wednesday’s hearing before the House Judiciary Crime, Terrorism and Homeland Security Subcommittee. The panel has released few advance details about the meeting’s scope, but its title alone—”Marijuana Laws in America: Racial Justice and the Need for Reform”—indicates that the debate will go beyond merely whether to legalize and instead delve into specifics on charting the best path beyond prohibition.

A staffer for the committee said in a press advisory on Tuesday that the hearing “will not focus exclusively on any one aspect of marijuana laws or any particular legislative proposal.” Rather, it “will address the breadth of the issue and inform future legislative efforts.”

“For the first time in recent history, the Judiciary Committee is going to be having a candid conversation about what reform should look like and how federal criminalization impacts the existing tension between state-legal programs and what changes in federal policy will impact and influence future reform efforts made at the state level to end the practice of otherwise law-abiding adults being put into handcuffs or discriminated against and treated like second-class citizens,” Justin Strekal, political director of NORML, told Marijuana Moment.

For some advocates, the path to ending prohibition doesn’t lead to the STATES Act. Instead, it leads to more comprehensive reform legislation Ă  la the MJA, a bill introduced by Sen. Cory Booker (D-NJ) that would not only remove cannabis from the CSA altogether—something STATES doesn’t do—but also provide for record expungements and penalize individual states that carry out cannabis prohibition in a discriminatory manner by withholding certain federal funds.

Booker, a 2020 Democratic presidential candidate, cosponsored last year’s version of the STATES Act. But he withheld his signature from this latest version, stating that he would no longer consider marijuana reform proposals that don’t address social equity concerns.

The path could also lead to legislation from Senate Minority Leader Chuck Schumer (D-NY), whose Marijuana Freedom and Opportunity Act would deschedule marijuana and apportion some tax revenue from legal cannabis sales to a grant program aimed at incentivizing participation in the industry by individuals from communities disproportionately impacted by prohibition. It would also set aside funding to support the expungement of cannabis convictions.

A less-talked-about bill from Rep. Tulsi Gabbard (D-HI), another 2020 presidential contender, would also remove cannabis from the CSA—and with Rep. Don Young (R-AK) as an original sponsor, it’s uniquely bipartisan descheduling legislation.

House Judiciary Committee Chairman Jerrold Nadler (D-NY) is also said to be crafting a far-reaching marijuana bill that is expected to include social equity provisions, though details are scarce and advocates expect it will be filed sometime in the wake of this week’s hearing.

The STATES Act, by comparison, is a modest reform proposal that social justice activists have argued is inadequate, especially as momentum builds across the country for wide-ranging measures that place an emphasis on equity.

That momentum was on full display on Tuesday, as 10 leading civil rights and criminal justice reform groups including the ACLU announced that they’d formed a coalition in order to advocate for comprehensive marijuana legislation. Among other things, the Marijuana Justice Coalition said that any reform plan should involve descheduling cannabis, expunging the records of those with past marijuana convictions and investing revenue from legal sales into communities that have been disproportionately impacted by prohibition.

However, proponents of passing the STATES Act—including Cannabis Trade Federation CEO Neal Levine, who will testify as the minority party’s witness at the Judiciary hearing on Wednesday—aren’t arguing that Congress shouldn’t pursue bills like the MJA. Rather, he says, it’s a matter of timing and political calculus about what kind of reform is achievable and can help stop many ongoing harms of prohibition in the short term.

Levine, who previously served as the director of state campaigns and policies at the Marijuana Policy Project, told Marijuana Moment that his organization and its allies have a strategy in place proven to get positive cannabis reform legislation enacted: “We passed as much as we could as fast as we could and we built upon it,” he said, referring to incremental cannabis bills that were passed in states and were later expanded through more far-reaching reforms. “That is our general strategy.”

And for the time being, the bill that stands the best odds of getting enacted into law is the STATES Act, he argues. There’s “not a lot of political will to go far beyond” that bill in the Senate today, and Levine said that if it does pass, it wouldn’t take the wind out of the sails of broader reform legislation—it will add to it.

“What we want to see is the full end of prohibition with full expungements. Period,” Levine said. “If we took a whip count of the U.S. Senate and we found that the Marijuana Justice Act had 60 votes and a credible path, we’d be all in on the Marijuana Justice Act. We want to see prohibition end.”

Levine will make that case on Wednesday. An excerpt of his written testimony that was released on Tuesday reads:

“We have a long way to go with respect to reversing the harms caused by marijuana prohibition and need to begin the process as soon as possible. The question before this Subcommittee and before Congress is whether there is a willingness to advance a bill to the President’s desk that will immediately address nearly all of the issues I have raised. With strong bipartisan support for legislation like the STATES Act, it is possible during the current session of Congress to take major steps toward respecting state cannabis laws, protecting workers, and advancing a more secure, vibrant, and equitable cannabis industry. We hope that Congress will take advantage of the opportunity.”

Other advocates are concerned that with only so much time left on the congressional calendar, and an uncertain Capitol Hill and White House situation going forward after next year’s elections, they may only get one bite at the apple to change federal cannabis laws for the foreseeable future—and the STATES Act isn’t the bite they hope to savor.

The STATES Act is, by most measures, one of the most practical pieces of marijuana reform legislation that stands any chance of being enacted in the 116th Congress. It has a states’ rights focus that has engendered bipartisan support, with notable Republicans signed on as original cosponsors for both the House and Senate versions. Sen. Cory Gardner (R-CO) and Rep. Dave Joyce (R-OH) are behind the bill, and both can exercise influence in their respective chambers to get it out the gate and onto the president’s desk.

That leads into another significant factor: President Donald Trump has said that he “really” supports the STATES Act. Following conversations with Trump on the issue, Gardner said he was left with the impression that there is “an ally in the president on this” and that he’d be inclined to sign the bipartisan bill.

The Colorado senator’s advocacy for the legislation could also open an essential window for advancement in the Senate, which is overseen by Majority Leader Mitch McConnell (R-KY), a vocal proponent of hemp but a staunch opponent to the crop’s “illicit cousin” marijuana. McConnell might be compelled to bring the bill to a floor vote if he’s thinking strategically about how to minimize Gardner’s 2020 reelection risks in Colorado by giving him a win to bring home to voters who want the federal government out of the way of their state’s cannabis laws.

While it is far from certain that McConnell will end up allowing the STATES Act to advance under his watch, it seems much more unlikely that the Senate leader would be willing to give that courtesy to even more wide-ranging legislation focused on social equity.

The STATES Act also received an unexpected tacit endorsement in April: Attorney General William Barr said that while he does not support legalization, he would prefer for the modest reform legislation to pass rather than maintain the status quo of conflicting state and federal laws.

Levine said that getting the STATES Act passed wouldn’t represent the finish line for the reform movement. It would be a critical step forward, to be sure, but not the end game. He’s of the mindset that the bill would be a battle won in the war against prohibition, and it would demonstrate momentum that would bolster efforts to enact further legislation that addresses related issues like social equity.

Strekal said that Wednesday’s historic hearing—and particularly the Republican minority’s choice of Levine as their sole witness—shows “the evolution and the paradigm shift that has been made over just the last few years, where the new floor is the STATES Act and a bipartisan compromise is somewhere between the STATES Act and something along the lines of the Marijuana Justice Act.”

There are some concerns about just how far the STATES Act’s protections would extend, though. Without explicitly descheduling cannabis, the plant would remain a federally controlled substance in any states that haven’t legalized it, potentially resulting in enforcement complications.

Would the legislation offer protections for immigrants seeking citizenship and who work in a state-legal market, which is currently grounds for having naturalization applications rejected under federal immigration policy?

One could argue that it would, as the STATES Act specifies that conduct described in the legislation—including the manufacturing, possession, distribution, dispensation, administration or delivery of marijuana in states where it’s legal—”shall not be unlawful.” But because the federal government would still regard cannabis as illicit under the CSA and the bill doesn’t provide specific protections for immigrants, some question what practical impact, if any, the STATES Act would have.

“The STATES Act will not protect immigrants who work in the legitimate marijuana industry from the current severe immigration penalties,” the Immigrant Legal Resource Center (ILRC) concluded in a May memo. “These penalties also will apply to their spouses and minor children.”

(See the full ILRC memo on the STATES Act embedded below.)

“In contrast, bills that remove marijuana as a Schedule I controlled substance will protect against all the above consequences,” ILRC wrote. “They will remove severe immigration penalties from employees of the legitimate marijuana industry and their families. They will remove those penalties from people who use marijuana in accord with, or in violation of, state law.”

Without specific language addressing the immigration issue, it’s within reason to assume that it may be a matter taken up in court. And considering the difficulties that many immigrants face in securing effective legal representation, there are worries that the STATES Act alone wouldn’t be enough to protect them.

By contrast, CTF’s Steve Fox argued in a call-to-action email in April that the existing language and the protections if offers generally to those working in the state-legal cannabis market demonstrates that lawmakers can “help remedy this problem by passing the STATES Act.”

“We are upset by the suggestion that hard-working cannabis industry employees lack good moral character simply for working in our industry,” Fox wrote in the message urging supporters to contact lawmakers about the STATES Act. “It is even worse that some employees may be denied citizenship for this work.”

Separately, some have raised questions about what the STATES Act would do to resolve banking issues in the cannabis industry.

The bill does note that “proceeds from any transaction in compliance with this Act and the amendments made by this Act shall not be deemed to be the proceeds of an unlawful transaction,” but there are still questions about how it would impact banks that operate in multiple states and transfer cash between branches, including those situated in jurisdictions that still prohibit marijuana.

It’s possible that some of these potential limitations will be discussed at Wednesday’s hearing. But don’t expect the STATES Act to be the only object of legislative interest. Michael Collins, director of national affairs at the Drug Policy Alliance, told Marijuana Moment that all signs point toward a conversation centered on social equity and racial justice—something that the STATES Act doesn’t address.

“I get that impression from the hearing, the way it’s structured, the witnesses they’ve called,” Collins said. “[Democratic] leadership in the House is not open to moving the STATES Act, otherwise the hearing would be different and the witnesses would be different. Some Republicans are open to STATES Act in the House, but it doesn’t have a path” in the Senate.

Levine said he sees the fate of the STATES Act in the Senate differently. The path might be precarious, but it’s achievable, he said.

While the two advocacy camps hold differing views on the best next step toward advancing cannabis reform, one possibility would be to try a dual approach, pushing the STATES Act to a vote in the Senate while the House weighs a broader bill like the MJA. Such activity could open dialogue between the chambers about potential compromises, or at least push social equity provisions closer to the forefront of the conversation.

Collins said that, in his view, “there’s recognition that we can do better than STATES” among Democrats. And if there’s not a clear path for the legislation to get passed and on the president’s desk, it’s in the party’s interest to take up bills that do include provisions focusing on social and racial justice—that do more than protect business interests in legal states and also acknowledge and seek to repair the damages of the war on drugs.

(Full disclosure: CTF, DPA and NORML, or their staffers, have all sponsored or supported Marijuana Moment through Patreon pledges.)

Read the full ILRC memo on marijuana bills and immigration below:

Marijuana Immigration STATES Act by Marijuana Moment on Scribd

Congress Schedules Hearing To Discuss Ending Marijuana Prohibition

Photo courtesy of Philip Steffan.

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Kentucky GOP Congressman Touts ‘High Hemp IQ’ Of His Constituents

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Rep. James Comer (R-KY) says that he proved his political advisors wrong when he decided to champion hemp legalization.

When he served as Kentucky’s Agriculture Commissioner before joining Congress and first contemplated “making hemp a reality,” he was told that people would conflate the crop with marijuana and he’d face a backlash, Comer said during an interview that aired this week.

“They said the people of Kentucky will never know the difference. They’ll think you’re talking about marijuana and you’re done,” he said during the Kentucky Educational Television appearance. “You can’t be a Republican and do this.”

“But people in Kentucky are smarter than some people give us credit for, and the people in Kentucky knew the history of hemp,” he said, noting that his own grandparents cultivated the crop.

“We have a high hemp IQ in Kentucky, and people across America are now learning the difference between hemp and marijuana.”

One of the areas that Comer said he hopes to see expanded is the use of hemp fibers to create products such as furniture and car parts. He mentioned one example of a Kentucky company that’s creating hardwood flooring out of hemp, and House Agriculture Committee Chair Collin Peterson (D-MN) is going to tour that facility with him soon.

Shortly before becoming the panel’s chair, Peterson said he was considering growing hemp on his own farm.

Most of the existing hemp facilities in Kentucky are producing CBD oil, which Comer said he also takes to treat minor pain.

While hemp and its derivatives were federally legalized under the 2018 Farm Bill, businesses are still awaiting guidelines from the U.S. Department of Agriculture (USDA) and the Food and Drug Administration (FDA). And that regulatory uncertainty has led some financial institutions to deny credit lines to hemp companies.

To that end, Comer said he and Senate Majority Leader Mitch McConnell (R-KY) are working closely to resolve the problem. That includes pushing for the Secure And Fair Enforcement (SAFE) Banking Act, which would protect banks that service state-legal cannabis businesses from being penalized by federal financial regulators.

“We teamed up with the marijuana people in the states,” Comer said.

Watch Comer’s hemp comments, starting around 5:30 into the video below:

“They’ve legalized marijuana. They’re selling marijuana. They’re not allowed to deposit the cash. They’re not allowed to take credit card transactions at those marijuana stores,” he said. “We have worked with them to try to create a system where you can have financial transparency, and that bill is making its way through Congress now.”

The SAFE Banking Act was approved by the House Financial Services Committee in March. And on Tuesday, the Senate Banking Committee took advocates by surprise after it announced that it would hold a hearing on marijuana banking issues next week, with just days left before the August recess.

Separately, the Senate Agriculture Committee will meet to discuss hemp production two days later.

McConnell has been an especially vocal advocate for hemp and CBD. For example, he led the head of USDA on a tour of a Kentucky hemp facility that produces CBD oil earlier this month.

Comer also claimed in the new interview that large pharmaceutical companies feel threatened by hemp-derived CBD as more consumers gravitate toward it as a “natural supplement” that could be a substitute for prescription painkillers.

“Now what you are having up here in Washington as we speak, the big drug companies are like, ‘Wow, people are buying this CBD oil and not buying our drug,'” the congressman said. “So they’re demanding that the FDA regulate it.”

He and McConnell are working to “keep the FDA off the backs of people,” Comer said.

While former FDA Commissioner Scott Gottlieb stressed that creating a regulatory pathway that allows for the lawful marketing of CBD as a food item or dietary supplement would take years without congressional action, the agency recently said that it is speeding up the rulemaking process and will issue a progress report by early fall.

USDA similarly recognized the intense interest from lawmakers and stakeholders in developing regulations for the crop, and it plans to issue an interim final rule for the crop in August.

Senate Schedules Second Cannabis Hearing For Next Week

Photo courtesy of KET.

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Psychedelics Decriminalization Moves Forward In Cities Around The U.S.

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Activists in Berkeley, California and Port Townsend, Washington took steps this week to get psilocybin mushrooms and other psychedelics decriminalized, following in the footsteps of successful similar efforts in Denver and Oakland.

In Berkeley, a decriminalization resolution advanced in a City Council committee on Wednesday, and organizers in Port Townsend spoke about their proposal at a county public health board meeting on Thursday, with plans to formally present it to the City and County Council.

The Berkeley measure would prohibit city departments and law enforcement from using any funds to enforce laws against possession, propagation and consumption of psychedelics by individuals 21 or older. Members of the City Council Public Safety committee unanimously voted to send the resolution to the body’s Public Health Committee for further consideration.

If that panel approves the measure, the full Council will schedule a hearing and vote on final passage. Decriminalize Nature, the group behind this resolution as well as the successful passage of neighboring Oakland’s psychedelics decriminalization effort last month, said they hope the Council will act on the measure by early November.

Separately, activists in Port Townsend announced that they delivered a speech about their psychedelics decriminalization proposal during a meeting of the Jefferson County Board of Health.

Beyond prohibiting the use of government funds to criminalize adults for using and possessing the substances, the local Washington resolution also calls on the city administrator to “instruct the City’s state and federal lobbyists to work in support of decriminalizing all Entheogenic Plants and plant-based compounds that are listed on the Federal Controlled Substances Schedule 1.”

“We are overwhelmed by the support of our community. Our group of supporters filled up half the audience,” the Port Townsend Psychedelic Society said in an Instagram post. “We are currently making plans to speak with the county health officer to talk about next steps in presenting in front of city and county council.”

Alex Williams, who is leading the decriminalization effort in Berkeley, told Marijuana Moment that Wednesday’s Council committee meeting there “went better than I had anticipated” and that he feels “there is an excellent chance of the resolution passing.”

Watch the Berkeley Public Safety Committee discuss psychedelics, starting at about 42:00:

While Williams said two members of the committee seemed to be under the impression that the resolution is singularly geared toward recreational use and meant to “capitalize on a new market,” Decriminalize Nature plans to address those misconceptions, emphasizing that the measure would not provide for commercial manufacturing or sales and that “this process is very important to allowing safe, equitable access to marginalized communities.”

“It is essential that entheogenic substances be treats as sacred spiritual practices and healers,” he added.

The resolution defines entheogenic substances as “plants and natural sources such as mushrooms, cacti, iboga containing plants and/or extracted combinations of plants similar to ayahuasca; and limited to those containing the following types of compounds: indoleamines, tryptamines, phenethylamines.”

Two Councilmembers, Rigel Robinson and Cheryl Davila, are sponsoring the measure.

“You can imagine a day where, years from now, doctors working with patients with serious depression or veterans dealing with PTSD could actually offer them a more realistic and comprehensive suite of potential treatments, which may include some of these plants as the research over the last several decades has indicated,” Robinson said at the meeting.

While Berkeley might seem like an obvious target for psychedelics reform given the city’s decades-long close association with counterculture, the movement to remove criminal penalties is gaining steam nationally. Decriminalize Nature is maintaining a map of jurisdictions throughout the country where activists have expressed interest in pursuing a similar model.

Also this week, a resident spoke at a Columbia, Missouri City Council meeting, asking the body to consider a resolution to decriminalize psychedelics. At least one councilmember expressed interest in following through, and he called the therapeutic potential of the natural substances “very promising.”

Individuals from nearly 100 cities have reached out to the organization for assistance advancing their own decriminalization efforts.

Voters in Denver kicked things off by approving the nation’s first-ever ballot measure to decriminalize psilocybin mushrooms in May.

Activists are currently pursuing efforts to place psilocybin-focused measures on statewide ballots in California and Oregon for next year.

More Than 100 Marijuana Businesses Urge Congress To Include Social Equity In Legalization

Photo courtesy of Wikimedia/Mushroom Observer.

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Top Democratic Party Leader Flops With Attempted Joke About Trump Smoking Hemp

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The chairman of the Democratic National Committee (DNC) apparently thinks that hemp gets you high—and that getting high makes you dumb.

In an attempted dig at President Donald Trump, who said last week that farmers struggling amid a trade war were “over the hump,” DNC Chair Tom Perez said he thought the president “was smoking some hemp when he said they were over the hump.”

“If you smoke some hemp, I guess that would stimulate certain farm economies here,” he added during his remarks at a press conference in Wisconsin.

Watch Perez’s hemp comment at about 6:45 into the video below:

Because hemp contains only trace amounts of THC, the main psychoactive ingredient in marijuana, it wouldn’t get you high, as Perez implied. But legalization advocates say it’s especially problematic that a party leader is treating marijuana as a laughing matter in the first place.

“I would need to be smoking something a hell of a lot stronger than hemp to find Tom Perez’s weak attempt at a marijuana joke funny,” Erik Altieri, executive director of NORML, told Marijuana Moment.

“At a time when over 600,000 overwhelmingly black and brown Americans are still being arrested every year for simple possession, our failed and racist prohibition is no laughing matter,” he said. “While we have made great progress in winning elected officials nationwide to our cause, Perez illustrated that we have a lot of work left to do when it comes educating them about the issue and still a bit of a road to go down before we can stop dealing with dad jokes and bad weed puns.”

Don Murphy, director of federal policies for the Marijuana Policy Project, echoed that point.

“We need more leadership and action at the federal level, not more stupid jokes, puns and inaccurate comments about hemp’s ability to get you high,” he told Marijuana Moment. “Luckily that is something that many of his party’s presidential candidates understand,” he said. “Sadly, Mr. Perez does not.”

Perez’s position on cannabis policy isn’t quite clear, as he’s remained largely silent on the issue. In contrast, many 2020 Democratic presidential candidates are campaigning on broad marijuana reform proposals.

The DNC chair made his attempted hemp quip during a press availability in Milwaukee, where he is meeting donors and coordinating preparation for next year’s Democratic National Convention.

Senate Schedules Second Cannabis Hearing For Next Week

Photo courtesy of Flickr/Gage Skidmore.

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