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What Joe Biden’s Presidential Victory Means For Marijuana In 2021

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Joe Biden has been projected to have won the presidential election by several major news organizations. If that sticks when all the votes are certified, and if he fulfills a key campaign promise once he gets to the White House, federal marijuana reform will be part of his administration’s legacy.

Although the Democratic former vice president has embraced decriminalizing cannabis possession, expunging past records and other modest moves, he has faced criticism over his record pushing punitive anti-drug legislation during his time in the Senate. And reform advocates have similarly taken him to task over his refusal to join the majority of U.S. voters and a supermajority of those in his own party in embracing broad adult-use marijuana legalization.

But the political dynamics that will define marijuana policy in 2021 go beyond the presidency. Despite the stated pro-reform positions of both Biden and his running mate, Sen. Kamala Harris (D-CA)—who has her own questionable record on cannabis criminalization but became the sponsor of a comprehensive legalization bill in 2019—the fate of reform still rests largely on Congress.

But it’s unclear at this point which party will control the Senate next year, with news outlets still not ready to project the results of several races and two Georgia seats appearing to be headed for January runoffs.

Democratic leaders have pledged an end to federal marijuana prohibition, and if the party wins the majority, the stage will be set for far-reaching reform.

But if Republicans maintain control of the Senate, there will be serious doubt about what kind of pull a Biden administration could have in moving marijuana legislation—even if he prioritized the issue, which remains to be seen. The past two years have shown time and again that the GOP-controlled chamber is simply unwilling to address the issue in a meaningful way.

Unlike President Trump, Biden has said on the campaign trail that his administration will pursue marijuana decriminalization and expungements for people with prior cannabis convictions. He also favors medical cannabis legalization, modestly rescheduling marijuana under federal law and letting states set their own policies without federal intervention.

“We should decriminalize marijuana,” he said during a town hall event last month, adding, “I don’t believe anybody should be going to jail for drug use.”

But at that same event, he again offered his vision for an alternative to incarceration for drug crimes that many advocates oppose: forced drug treatment.

In any case, the likelihood of marijuana reform under a Biden administration seems more promising than if Trump were to be reelected, if not for anything but the lack of clear commitments the incumbent has made on the issue during his last four years.

While Trump has voiced support for medical cannabis and said he is in favor of bipartisan legislation to protect states that legalize marijuana from federal intervention, he has not pledged any specific reforms himself. Nor does it seem he has pushed Republican lawmakers to prioritize the issue.

As noted, Biden will also be joined by Harris when he enters the Oval Office. The senator—who has been criticized over her former prosecutorial record pursuing low-level cannabis cases as a California district attorney and for campaigning against legalization in her own state—became the lead Senate sponsor of a comprehensive bill to end federal prohibition last year.

She made much of the need to legalize cannabis during her own unsuccessful run for the 2020 Democratic presidential nomination. However, her statements on the issue have been tempered since she agreed to run alongside Biden, choosing instead to focus on his more limited decriminalization and expungements plan.

Harris said last month that she has a “deal” with Biden to candidly share her perspective on a range of progressive policies he currently opposes, including legalizing marijuana, but she hasn’t indicated that she would proactively push him in that direction. The senator also said that month that the administration would have “a commitment to decriminalizing marijuana and expunging the records of people who have been convicted of marijuana offenses.”

Even so, given Biden’s former hostile approach to drug policy as a legislator and his ongoing obstinance on marijuana legalization at a time when polls show that the overwhelming share of Democrats favor the policy change, there remains some skepticism about his willingness to make good on his campaign promises to prioritize decriminalization or the other reforms he’s discussed.

He did proudly author the infamous 1994 Crime Bill—legislation that increased penalties for drug-related crimes and is considered a main facilitator of mass incarceration—after all, as well as several 1980s-era anti-drug bills. That record is a point that Trump’s reelection campaign had seized on, calling Biden the “architect” of the drug war.

Biden, for his part, has conceded that his work on punitive anti-drug legislation was a “mistake.”

That said, shortly after becoming the party’s 2020 nominee, the former vice president’s ongoing opposition to recreational legalization is suspected of being at least partly behind the Democratic National Committee platform committee’s vote against adding the reform as a 2020 party plank in July.

So it may be incumbent upon Congress to advance broad legalization after he takes office. And the likelihood of that happening will hinge largely on the makeup of the Senate.

If Democrats reclaim control of the chamber, those chances will be significantly bolstered. Senate leadership in this current Congress has been opposed to taking up reform. Senate Majority Leader Mitch McConnell (R-KY), for example, is an adamant opponent of loosening laws on marijuana, all but ensuring that reform bills would not stand a chance in his chamber even as he has championed hemp legalization. Even modest House-passed legislation focused on banking access for cannabis businesses never received a vote.

With Democrats back at the reigns, they would be positioned to bring any number of cannabis bills that have been introduced to the floor, including those calling for the end of federal marijuana prohibition. Sen. Chuck Schumer (D-NY), the current top Democrat in the chamber, who would be expected to be installed as the majority leader come January if the party wins enough of the outstanding races, said last month that he will put his own descheduling bill “in play” and that “I think we’ll have a good chance to pass it.”

Leadership in the House, which is expected to maintain a Democratic majority, albeit a reduced one, has already signaled their intention of advancing cannabis reform.

The chamber was expected to hold a floor vote on a comprehensive legalization bill—the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act—in September, but it was ultimately postponed after certain centrist Democrats argued the optics of passing the bill would be bad for them before approving another coronavirus relief package. Leadership has since committed to voting on the legislation, which also contains provisions to fund programs to repair some of the harms of the war on drugs, later this fall.

With a Democratic-controlled Senate and the party still in control of the House, it stands to reason that cannabis reform would move in the 117th Congress, even if the pace of that reform and the administration’s role in promoting it remain uncertain.

But if Republicans maintain their majority, the party’s approach to cannabis to date does not indicate leaders would be ready to embrace far-reaching reforms such as the MORE Act. That said, it is possible that banking-focused marijuana legislation—which despite its having stalled so far in the Senate, has significant bipartisan support among the rank and file in both chambers—could move.

It is also not entirely out of the question that a scaled-down proposal to simply protect people complying with state marijuana laws from federal interference—likely without the social equity and restorative justice components of Schumer’s bill or the MORE Act—could see the light of day. That possibility is boosted by the fact that voters in several Republican and swing states approved cannabis ballot measures on Election Day. Sen. John Thune (R-SD), the party’s whip, for example, now represents constituents who voted to legalize both recreational and medical marijuana by solid margins.

That said, the most vocal GOP advocate for marijuana reform in the Senate won’t be returning to Capitol Hill next year. Sen. Cory Gardner (R-CO), who unsuccessfully led efforts to convince his party to allow cannabis legislation to come to the floor for a vote in the 116th Congress, lost his reelection bid. With him not being around to prod McConnell to consider the issue, it would be up to other lawmakers—perhaps Sens. Steve Daines (R-MT), Lisa Murkowski (R-AK) or Rand Paul (R-KY)—to make the case to leaders that the issue is a winning one worth advancing.

Outside of Congress, Biden could also make moves to advance cannabis reform administratively.

He could, for example, reinstate a version of the Obama-era Justice Department memo that directed federal prosecutors to generally not interfere with state marijuana laws, which was rescinded by the Trump administration in 2018. It is also within the power of the executive branch to reschedule marijuana under the Controlled Substances Act. Biden has pledged to make a move to Schedule II, though that would not achieve many of the changes advocates seek.

The president has the unilateral authority to grant acts of clemency, including pardons and commutations, to people who have been convicted of federal marijuana or other drug offenses. He also gets to appoint an attorney general, drug czar and other officials who will make decisions on how the federal government handles the issue—though many of those officials will be subject to Senate confirmation.

For his part, Rep. Earl Blumenauer (D-OR) told Marijuana Moment in August that “the Biden administration and a Biden Department of Justice would be a constructive player” in advancing legalization.

But in the end, while Biden has come around to the idea of removing criminal penalties for marijuana possession, and he is now advocating for clearing the records of those who’ve been punished for such crimes, his longstanding record of opposing reform and embracing punitive drug policies continue to leave questions about what actions he’ll be willing to take post-election.

He remains out of step with the majority of his party and U.S. voters more broadly on the question of legalization, and it doesn’t seem likely that cannabis reform would be at the top of his agenda. That said, his recent pivot in favor of decriminalization and medical cannabis legalization indicates that he recognizes that a tough-on-crime approach to drugs is no longer politically acceptable to voters and signals that further evolution in his position on cannabis is possible.

Seven In Ten Americans Support Marijuana Legalization, New Gallup Poll Shows

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

Kyle Jaeger is Marijuana Moment's Sacramento-based senior editor. His work has also appeared in High Times, VICE and attn.

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Pennsylvania Senators Will Consider DUI Protections For Medical Marijuana Patients At Hearing

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A Pennsylvania Senate committee is set to take up a bill next week that would protect medical marijuana patients from being prosecuted under the state’s “zero tolerance” DUI laws.

The legislation, sponsored by Sen. Camera Bartolotta (R), would amend state statute to require proof of active impairment before a registered patient can be prosecuted for driving under the influence. The current lack of specific protections for the state’s roughly 368,000 patients puts them in legal jeopardy when on the road, supporters say.

Members of the Senate Transportation Committee will explore the issue at a hearing on Tuesday.

Bartolotta first introduced an earlier version of the bill in June 2020. She said at the time that the state needs to “ensure that the legal use of this medicine does not give rise to a criminal conviction.”

Months after the standalone reform legislation was introduced, the Pennsylvania House approved a separate amendment that would enact the policy change.

Pennsylvania legalized medical marijuana in 2016, with the first dispensaries in the state opening in 2018. But the state’s zero-tolerance DUI law still doesn’t reflect those changes. Because it criminalizes the presence of any THC or its metabolites in a driver’s blood—which can be detected for weeks after a person’s last use—the law puts virtually all medical marijuana patients at risk, even if it’s been days since their last use and they show no signs of impairment.

Bartolotta’s bill would require officers to prove a registered patient was actually impaired on the road.


Marijuana Moment is already tracking more than 1,200 cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.

Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.

“Unimpaired patients currently face the risk of being arrested, prosecuted and convicted for using medicinal marijuana that has no bearing on their ability to drive a vehicle,” the senator wrote in a cosponsorship memo late last year. “Given the very serious consequences of a DUI conviction, my legislation will provide critical protections for medicinal cannabis patients by ensuring responsible use of their legal medicine does not give rise to a criminal conviction.”

Several legal cannabis states have enacted per se THC limits in blood, similar to blood alcohol requirements. However, evidence isn’t clear on the relationship between THC concentrations in blood and impairment.

A study published in 2019, for example, concluded that those who drive at the legal THC limit—which is typically between two to five nanograms of THC per milliliter of blood—were not statistically more likely to be involved in an accident compared to people who haven’t used marijuana.

Separately, the Congressional Research Service in 2019 determined that while “marijuana consumption can affect a person’s response times and motor performance… studies of the impact of marijuana consumption on a driver’s risk of being involved in a crash have produced conflicting results, with some studies finding little or no increased risk of a crash from marijuana usage.”

Outside of this bill, Pennsylvania lawmakers have continued to pursue adult-use legalization in the state. Earlier this year, two legislators circulated a memo to build support for a comprehensive reform bill they plan to introduce, for example.

A bipartisan Senate duo is also in the process of crafting legislation to legalize cannabis across the commonwealth. They announced some details of the proposal earlier this year, but the bill has yet to be formally introduced.

Outside the legislature, Gov. Tom Wolf (D) said earlier this year that marijuana legalization was a priority as he negotiated the annual budget with lawmakers. However, his formal spending request didn’t contain legislative language to actually accomplish the cannabis policy change.

Wolf, who signed a medical cannabis expansion bill in June, has repeatedly called for legalization and pressured the Republican-controlled legislature to pursue the reform since coming out in favor of the policy in 2019. Shortly after he did that, a lawmaker filed a separate bill to legalize marijuana through a state-run model.

Lt. Gov. John Fetterman (D), who is running for U.S. Senate, previously led a listening tour across the state to solicit public input on legalization. He’s credited that effort with helping to move the governor toward embracing comprehensive reform. The lieutenant governor even festooned his Capitol office with marijuana-themed decor in contravention of a state law passed by the GOP-led legislature.

Fetterman has also been actively involved in encouraging the governor to exercise his clemency power for cannabis cases while the legislature moves to advance reform.

In May, Wolf pardoned a doctor who was arrested, prosecuted and jailed for growing marijuana that he used to provide relief for his dying wife. That marks his 96th pardon for people with cannabis convictions through the Expedited Review Program for Non-Violent Marijuana-Related Offenses that’s being run by the Board of Pardons.

Overall, legalization is popular among Pennsylvania voters, with 58 percent of residents saying they favor ending cannabis prohibition in a survey released in April.

Another poll released in May found that a majority of voters in the state also support decriminalizing all currently illicit drugs.

80 Top Law Enforcement Officials, Including A Biden Nominee, Urge SCOTUS To Hear Safe Injection Drug Case

Photo courtesy of Mike Latimer.

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80 Top Law Enforcement Officials, Including A Biden Nominee, Urge SCOTUS To Hear Safe Injection Drug Case

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A coalition of 80 current and former prosecutors and law enforcement officials—including one who is President Joe Biden’s pick for U.S. attorney of Massachusetts—have filed a brief urging the Supreme Court to take up a case on the legality of establishing a safe injection facility where people can use illicit drugs in a medically supervised environment.

The nonprofit organization Safehouse was set to launch a safe consumption site in Philadelphia before being blocked by a legal challenge from the Trump administration, and it filed a petition with the nation’s highest court last month to hear the case. Now the group of law enforcement officials associated with Fair and Just Prosecution are calling on the Supreme Court to act in an amicus brief.

“Amici have an interest in this litigation because overdose prevention sites (OPSs) are among the harm reduction and public health interventions that have proven effective in preventing fatal overdoses and diverting people from unnecessary and counterproductive interactions with the justice system,” they wrote. “Amici, many of whom are currently or were previously responsible for enforcing the nation’s drug laws, also believe that the Controlled Substances Act cannot be construed to prohibit operation of a facility designed to address the most acute aspects of this public health emergency.”

If the court agrees to hear the dispute, advocates will be looking toward the Biden Justice Department and whether it will continue the federal government’s opposition to allowing supervised injection facilities. It would be a precedent-setting case that could steer policy for years to come, meaning Safehouse is taking a significant risk by pursuing the appeal of its loss in a lower court before the majority of conservative justices.

“Failing to address the loss of life resulting from drug overdoses—and criminalizing a community-based public health organization working to save lives—will further erode trust in the justice system,” the new brief states. “If there were ever a time to demonstrate that our government values the dignity of human life, that time is now.”

While President Joe Biden hasn’t weighed in directly on safe consumption sites, there’s been a theme within his administration of embracing the general concept of harm reduction for drugs. The White House Office of National Drug Control Policy (ONDCP), for example, said that “promoting harm-reduction efforts” is a first-year priority. In an overview of its objectives, the office said it intends to expand “access to evidence-based treatment,” enhance “evidence-based harm reduction efforts” and promote “access to recovery support services.”

These goals theoretically align with those of Safehouse, which wants to give people with substance use disorders a facility where medical professionals can intervene in the event of an overdose and provide people with the resources to seek recovery.

Among the signatories on the amicus brief are a former deputy assistant attorney general under Obama, district attorneys of Baltimore, Cook County, Dallas County, Los Angeles County, Manhattan, Philadelphia, San Francisco County and Seattle and the former attorneys general of Ohio, Vermont and Virginia.

But one signatory who especially stands out is Rachael Rollins, the district attorney of Suffolk County, Massachusetts who is Biden’s nominee for U.S. attorney of Massachusetts.

“As an elected prosecutor, I have a responsibility to protect every member of my community, which requires moving away from criminal justice responses to substance use disorder,” Rollins said in a press release. “Instead, we must embrace proven public health strategies as potential solutions. Lives depend on it.”

Philadelphia District Attorney Larry Krasner said the drug war “has taken too many lives already, and criminalization has only exacerbated this devastating toll.” He added: “We need a new way forward that allows communities to address the overdose crisis with harm reduction approaches proven to save lives and improve community safety.”

Fair and Justice Prosecution, the group that coordinated the amicus brief, also organized a tour of Portugal for 20 top prosecutors in 2019 so they could learn about the successful implementation of the country’s drug decriminalization law.

Safehouse won a battle in a federal district court in 2019 to proceed with the facilities. But in January, the U.S. Court of Appeals for the Third Circuit overturned the decision, ruling that permitting such facilities would violate a 1980s-era federal statute that bars organizations from running operations “for the purpose of unlawfully… using controlled substances.” That law was passed while Biden served in the Senate and helped push punitive drug policies that have had lasting consequences.

“As current and former criminal justice leaders, amici have seen first-hand how the classic ‘war on drugs’ approach to drug control—with its almost exclusive focus on aggressive criminal law enforcement—has exacerbated the overdose epidemic,” the pro-reform prosecutors and cops wrote in the new brief. “This experience confirms that no jurisdiction can arrest its way out of this public health problem. Fatal overdoses are a symptom of substance use disorder, a medical condition requiring a medical response.”

“Distorting federal drug laws to prohibit an [overdose prevention site] or to prosecute its sponsors would further undermine trust in the justice system and faith in the fair and sensible application of our drug laws. Interpreting federal criminal law to bar empirically validated harm reduction measures would make no one safer; it would only impede cooperation between law enforcement and the communities they serve.”

In its original petition to the Supreme Court in the current safe injection site case, Safehouse argued that the justices should “grant review to determine whether” federal statute really does prohibit “non-commercial, non-profit social service agencies…from establishing an overdose-prevention site that includes medically supervised consumption.”

“This question is a matter of life or death for thousands of Philadelphians and many thousands more throughout the country,” it said. “Tragically, while respondents have been pursuing this declaratory judgment against Safehouse, more than 3,200 people died in Philadelphia of drug overdoses—many of which could have been prevented if medical care had been immediately available through supervised consumption services.”

Safehouse also pointed out that Xavier Bacerra, the Biden administration’s secretary of health and human services, was among eight top state law enforcement officials who filed an earlier amicus brief in support of the organization’s safe injection site plan when he served as California’s attorney general.

The organization put the gravity of the case in no uncertain terms, painting a picture of how its proposed facility can save lives.

“When breathing stops, even a brief delay while waiting for medical help to arrive may result in an otherwise preventable overdose death or irreversible injury,” the petition says. “As a result, every second counts when responding to an opioid overdose; as more time elapses, the greater the risk of serious injury and death. Ensuring proximity to medical care and opioid reversal agents like the drug Naloxone at the time of consumption is therefore a critical component of efforts to prevent fatal opioid overdose.”

“Intervention by this Court is warranted to make clear that the federal law does not criminalize this essential public health and medical intervention designed to save lives from preventable overdose death,” it continues.

Safehouse argued that the appeals court’s interpretation of the law “eviscerates the intended boundaries of the statute and would criminalize the operation of legitimate businesses, charities, families, and good Samaritans that serve and reside with those suffering from addiction.”

If the Supreme Court were to take up the case and rule in favor of Safehouse, it could embolden advocates and lawmakers across the country to pursue the harm reduction policy.

The governor of Rhode Island signed a bill in July to establish a safe consumption site pilot program where people could test and use currently illicit drugs in a medically supervised environment. It became the first state in the country to legalize the harm reduction centers. It’s not clear whether the Department of Justice will seek to intervene to prevent the opening of such facilities in that state.

Massachusetts lawmakers advanced similar legislation last year, but it was not ultimately enacted.

A similar harm reduction bill in California, sponsored by Sen. Scott Wiener (D), was approved in the state Senate in April, but further action has been delayed until 2022.

At the same time that Safehouse is turning to the Supreme Court, it also announced recently that it will be returning the the federal district court that gave it an initial 2019 victory in support of establishing a safe injection facility before it was overturned in the appeals court.

The organization is making the unique argument that the federal government’s decision to block it from providing the service violates religious freedom by subjecting participants “to criminal penalties for exercising their sincerely held religious beliefs that they have an obligation to do everything possible to preserve life and to provide shelter and care to the vulnerable, including those suffering from addiction.”

In 2018, a congressional subcommittee approved legislation to specifically prohibit Washington D.C. from using local tax dollars to help open safe consumption facilities. But that provision was not enacted and has not been reintroduced since.

A 2020 study found that people “who reported using supervised injection facilities on an at least weekly basis had a reduced risk of dying compared to those who reported less than weekly or no use of this health service.”

Read the amicus brief from the prosecutors on the Safehouse safe injection site case below: 

Safehouse Amicus Sept 2021 by Marijuana Moment

Former GOP Congressman Who Actually Supported Marijuana Reform Enters The Cannabis Industry

Photo courtesy of Jernej Furman.

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Former GOP Congressman Who Actually Supported Marijuana Reform Enters The Cannabis Industry

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Lately it’s come to seem as if most of the former politicians who’ve entered the marijuana industry were unhelpful or downright hostile to legalization when they were in office. But on Friday, a cannabis company announced an addition to its board who disrupts that narrative: a former Republican congressman who has a consistent legislative record of cosponsoring and voting for marijuana reform measures.

The multi-state cannabis businesses Red White & Bloom Brands Inc. (RWB) is bringing on former Rep. Ryan Costello (R-PA) to help it navigate the complicated regulatory space, drawing on his experience in Congress as the company works to expand.

Costello certainly isn’t the only Republican lawmaker who’s made the transition from Capitol Hill to the cannabis market. But he is a rare example of a politician who actually embraced enacting marijuana policy changes while he was in power before standing to profit from the industry. The congressman cosponsored a variety of bills—including ones to shield states that legalize cannabis from federal interference—and supported several reform amendments.

“I’m looking forward to utilizing my 15+ years of service in government, the legal profession, and my familiarity with cannabis policy to be a strategic resource for RWB as it positions itself as a true market leading house of brands in the permitted U.S. marketplace,” Costello said in a press release.

This breaks with a trend that has increasingly frustrated advocates, where it seems the people most inclined to benefit from legalization are those who stood in the way in Congress. The best-known example of that is former GOP House Speaker John Boehner (R-OH), who’s faced criticism from activists over his anti-legalization record while in office before joining the board of marijuana company Acreage Holdings.

While Costello left Congress in 2019 prior to the historic House vote on a standalone bill to federally deschedule cannabis, there are plenty of examples of him supporting more modest reform proposals during his congressional tenure.

He was a cosponsor of legislation to protect state marijuana markets from federal intervention, promote cannabis research, support military veterans’ access to medical marijuana, protect banks that service state-legal cannabis businesses and legalize industrial hemp.

The congressman also voted in favor of floor amendments to shield all state marijuana programs from Justice Department intervention, allow Department of Veterans Affairs doctors to recommend medical cannabis and end hemp prohibition.

In that respect, he was a rare GOP lawmaker. While the issue is increasingly bipartisan among the public, that hasn’t been reflected in Congress. And now Costello is in a position to leverage his legislative experience to advance a marijuana business’s interests.

It’s an exception to the trend.

For example, Tom Price, the former U.S. Department of Health and Human Services (HHS) head under President Donald Trump, is serving as a member of the board of directors for a medical marijuana business in Georgia after he refused to take action to reclassify cannabis under federal law when he had the power to do so. Price consistently voted against marijuana reform measures while serving in Congress.

Former Rep. Steve Buyer (R-IN), who also has a long track record of opposing marijuana legalization efforts, joined a Canadian cannabis company’s board in 2019.

Earlier this month, a New York-based lobbying firm that’s headed by a former Republican U.S. senator announced that it is launching a practice focused on serving cannabis businesses. That former senator, Alfonse D’Amato, racked up a record of supporting the war on drugs while in office.

There is at least one other former GOP congressman who entered the cannabis space with a legislative record supporting marijuana reform. Former Rep. Dana Rohrabacher (R-CA), who championed cannabis reform while in Congress, became an advisory board member for a marijuana company after being voted out of office in 2018.

Separately, President Joe Biden’s pick to head up federal drug policy worked for a major marijuana business last year, according to his financial disclosure reports.

California Activists Cleared To Collect Signatures For Psilocybin Legalization Ballot Initiative

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