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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

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Conservative Group ALEC Floats Marijuana Banking And CBD Bills For States To Consider

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An influential conservative organization is floating two cannabis-related resolutions that could be used as models for future state legislation.

Tasks forces of the American Legislative Exchange Council (ALEC), a nonprofit that brings together conservative lawmakers and private sector stakeholders to draft and distribute model policies for consideration by state legislatures, discussed banking issues in the marijuana industry and enacting hemp and CBD legalization bills at the group’s 46th annual meeting in Austin last week.

ALEC’s Commerce, Insurance and Economic Development (CIE) Task Force tackled cannabis financial services issues during Thursday’s session, weighing a draft resolution that urges Congress to “enact common-sense federal laws that respect state law and promote public safety without compromising federal enforcement of anti-money laundering laws against criminal enterprises.”

“Congress has sole authority to solve the cannabis banking issue by enacting legislation that provides protections for depository institutions that offer financial services to cannabis-related legitimate businesses and service providers for such businesses,” the resolution states.

The measure specifically says it does not take a position on marijuana legalization itself but rather focuses on how conflicting state and federal cannabis laws mean “the vast majority of financial institutions are unwilling to provide services [to marijuana businesses] and those that do could be subject to severe criminal and civil penalties.”

Because of that problem, many such businesses are operating on a largely cash basis, which ALEC described as “inefficient, expensive, opaque, and make illicit activity more difficult for law enforcement and state regulators to track.”

The resolution also emphasizes the bipartisan nature of resolving the banking issue, referencing a recent letter from 38 state and territory attorneys general that called on Congress to enact a legislative fix.

ALEC’s support for resolving financial uncertainty in the cannabis industry is just one of many recent indicators that legislation such as the Secure and Fair Enforcement (SAFE) Banking Act is considered a nonpartisan issue. The House Financial Services Committee approved the SAFE Banking Act in March, and the Senate Banking Committee held a hearing on the topic last month, despite its Republican chairman initially stating that the panel wouldn’t discuss it as long as marijuana remained federally illegal.

Over in ALEC’s Energy, Environment and Agriculture (EEA) Task Force, members debated draft legislation for states that would “legalize the agricultural production and sale of hemp as well as Cannabidiol oil, commonly known as CBD oil” but explicitly would “not legalize marijuana.”

The model policy seems to be targeted at the limited number of states that still have hemp prohibition on the books despite the crop’s federal legalization under the 2018 Farm Bill. Those states include Idaho, South Dakota and Mississippi, according to the National Conference of State Legislatures.

Provisions of the draft policy signal that the proposal would be in compliance with federal law, which defines hemp as cannabis that contains no more than 0.3 percent THC by dry weight. However, while the 2018 Farm Bill legalized hemp and its derivatives, the Food and Drug Administration has said that unless alternative rules are issued for CBD, it cannot legally be marketed in food items or dietary supplement.

ALEC’s draft policy would provide for such marketing, though. It stipulates that CBD products that contain no THC can sold be if the product is “intended for topical application, oral consumption, or inhalation, by humans, or for consumption by animals.”

It’s not clear how the task forces voted or what exactly the immediate next steps would be if the draft proposals were approved and made final at last week’s conference. Marijuana Moment reached out to representatives of ALEC for clarification but did not hear back by the time of publication.

FBI Seeks Tips On Marijuana Industry Corruption

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Marijuana Legalization Measure Advances One Step In South Dakota

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South Dakota’s attorney general filed an official explanation of a proposed ballot measure to legalize marijuana on Friday.

While separate organizations are working to get a medical cannabis-focused initiative on the state’s 2020 ballot, activists behind this measure are hoping to incorporate recreational legalization, medical marijuana reform and hemp into one package.

Adult-use legalization would be accomplished through a constitutional amendment under the initiative, which would separately require the legislature to pass legislation creating rules for medical cannabis and hemp.

“The constitutional amendment legalizes the possession, use, transport, and distribution of marijuana and marijuana paraphernalia by people age 21 and older. Individuals may possess or distribute one ounce or less of marijuana,” Attorney General Jason Ravnsborg (R) wrote. “Marijuana plants and marijuana produced from those plants may also be possessed under certain conditions.”

The South Dakota Department of Revenue would be responsible for issuing licenses for cannabis cultivators, manufacturers, testing facilities and retailers. Individual jurisdictions would be able to opt out of allowing such facilities in their areas.

“The Department must enact rules to implement and enforce this amendment,” the explanation states. “The amendment requires the Legislature to pass laws regarding medical use of marijuana. The amendment does not legalize hemp; it requires the Legislature to pass laws regulating the cultivation, processing, and sale of hemp.”

The initiative calls for a 15 percent excise tax on marijuana sales. That revenue would be used to fund the Department of Revenue’s implementation and regulation of the legal cannabis system, with remaining tax dollars going toward public education and the state general fund.

Ravnsborg said that judicial clarification of the amendment “may be necessary” and notes that marijuana “remains illegal under Federal law.”

The attorney general issued a similar explanation of a proposed constitutional amendment to legalize medical cannabis earlier this month.

This latest move comes one day after advocacy organization New Approach South Dakota announced that their medical marijuana initiative was certified, enabling them to begin the signature gathering process.

Several other cannabis initiatives are in the process of being certified in the state, according to the attorney general’s website. In order to place constitutional amendments on the ballot, activists must collect 33,921 valid signatures from voters.

South Dakota is one of the last remaining states in the U.S. that has not legalized marijuana for any purposes.

GOP Senator Keeps Endorsing Medical Marijuana But Hasn’t Sponsored A Single Cannabis Bill

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Elizabeth Warren’s Plan For Indian Tribes Includes Marijuana Legalization

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Sen. Elizabeth Warren (D-MA) unveiled a plan on Friday that’s aimed at holding the federal government accountable for following through on its obligations to Native American tribes, and that includes ensuring that tribal marijuana programs are protected against federal intervention.

The plan emphasized Warren’s support for a bill she filed earlier this year that “would protect cannabis laws and policies that tribal nations adopted for themselves.”

The 2020 Democratic presidential candidate, who has faced criticism over claims of Native American heritage, pointed to federal reports showing that tribal programs generally have not received adequate funding and said it is imperative that legislation be enacted to “provide resources for housing, education, health care, self-determination, and public safety” for those communities.

To that end, Warren is planning to introduce a bill called the “Honoring Promises to Native Nations Act” alongside Rep. Deb Haaland (D-NM), co-chair of the Congressional Native American Caucus. Before filing, however, the lawmakers are soliciting input on how best to draft the legislation, and are accepting written testimony until September 30.

While the proposed legislation itself doesn’t currently include marijuana-specific provisions, a press release and blog post on the topic address the senator’s sponsorship of the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, which would allow tribal communities and states to set their own cannabis policies without Justice Department interference.

In order to provide economic opportunities to Native people, that “requires streamlining and removing unnecessary administrative barriers that impede economic growth on Tribal lands, respecting tribal jurisdiction over tribal businesses, and promoting forward-looking efforts to ensure full access to new and emerging economic opportunities.”

“For example, while not every tribe is interested in the economic opportunities associated with changing laws around marijuana, a number of Tribal Nations view cannabis as an important opportunity for economic development,” Warren’s campaign blog post states.

“I support full marijuana legalization, and have also introduced and worked on a bipartisan basis to advance the STATES Act, a proposal that would at a minimum safeguard the ability of states, territories, and Tribal Nations, to make their own marijuana policies,” she wrote.

A separate press release on Warren’s Senate website also touts her support for the STATES Act, saying she “worked hard to ensure” that it included tribal protections.

“It’s beyond time to make good on America’s responsibilities to Native peoples, and that is why I’m working with Congresswoman Haaland to draft legislation that will ensure the federal government lives up to its obligations and will empower tribal governments to address the needs of their citizens,” Warren said of the overall tribal plan. “We look forward to working closely with tribal nations to advance legislation that honors the United States’ promises to Native peoples.”

In an email blast to her campaign list, Warren included “a set of additional ideas to uphold the federal government’s trust and treaty obligations with Tribal Nations and to empower Native communities,” which includes her marijuana proposal:

“New economic opportunities: We also need to respect tribal jurisdiction over tribal businesses and promote forward-looking efforts to ensure full access to new economic opportunities. For example, a number of Tribal Nations view cannabis as an important economic opportunity. I support full marijuana legalization and have advanced the STATES Act, a proposal that would safeguard the ability of Tribal Nations to make their own marijuana policies.”

There’s increased interest in ensuring that Native populations receive the same benefits and protections as states as it concerns cannabis legislation.

In June, the House passed a spending bill that included a rider stipulating that Native American marijuana programs couldn’t be infringed upon by the Justice Department. And a GOP representative filed a bill in March that would provide similar protections.

GOP Senator Keeps Endorsing Medical Marijuana But Hasn’t Sponsored A Single Cannabis Bill

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