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What The New Democratic-Controlled Senate Means For Federal Marijuana Legalization In 2021

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The Senate will vote to pass a bill to federally legalize marijuana within the next two years.

That’s according to the top Democratic lawmaker who is expected to be installed as majority leader following his party’s projected clean sweep in this week’s two Georgia runoff elections that will give them control of the chamber.

Coupled with Joe Biden’s presidential win, the new situation on Capitol Hill means that federal cannabis policy change is in the cards for the 117th Congress. While the former vice president has declined to embrace adult-use legalization, he’s pledged to adopt modest reforms such as marijuana decriminalization and expunging past records.

And a push from House and Senate Democratic leadership—who are already on record with pledges to advance far-reaching marijuana reforms—could lead to the comprehensive changes that advocates have been fighting for, including the advancement of a federal cannabis descheduling bill that cleared the House last month.

Presidential politics notwithstanding, it’s always been the case that it would be largely incumbent upon legislators to advance cannabis reform. And the chances of their success in doing so in recent years has hinged largely on the makeup of the Senate.

Because Democrats have now reclaimed control of the chamber, those chances are significantly bolstered. Senate leadership in the 116th Congress had declined repeated opportunities to hold votes on marijuana reform legislation. Outgoing Senate Majority Leader Mitch McConnell (R-KY) in particular has been an adamant opponent of loosening federal laws on marijuana.

Even modest, bipartisan legislation to protect banks that service cannabis businesses from being penalized by federal regulators had languished in the GOP-controlled Senate after clearing the House multiple times. McConnell’s office recently released a recap of the latest round of coronavirus relief legislation and celebrated its exclusion of the cannabis banking language.

Meanwhile, the most significant piece of cannabis legislation to advance out of the Senate in recent history is the 2018 Farm Bill that contained provisions to federally legalize hemp and its derivatives, which McConnell had championed.

Democrats are now poised to advance any number of more substantial cannabis bills, including those calling for the end of federal marijuana prohibition. Sen. Chuck Schumer (D-NY), the current top Democrat in the Senate, who is expected to be installed as the majority leader, said in October that he will put his own descheduling bill “on the floor” and that he thinks “we’ll have a good chance to pass it.”

Schumer reiterated in a more recent interview that if he becomes majority leader, a legalization bill will “pass” and “it’ll get Democratic and Republican votes.”

But it still remains to be seen to what extent the Democratic leader can bring along the more moderate members of his caucus—Sen. Joe Manchin (D-WV), for example—when it comes to cannabis reform. Schumer did point out in his recent comments that voters in several conservative states approved legalization ballot initiatives in the November election, highlighting that support crosses party and ideological lines.

For what it’s worth, the two incoming senators from Georgia are both in favor of comprehensive marijuana reform.

Sen.-elect Jon Ossoff (D-GA), who defeated Sen. David Perdue (R-GA), said he will push for the policy change in the Senate—and he made that proposal part of his pitch to young people on social media. Sen.-elect Raphael Warnock (D-GA), who ousted Sen. Kelly Loeffler (R-GA), has frequently discussed the failures of the war on drugs and his support for cannabis reform.

The House, which remains in Democratic control albeit with a reduced majority after November’s elections, has already made clear that it’s ready for federal marijuana policy change.

The chamber approved a comprehensive legalization bill—the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act—last month, for example.

“Reform advocates have established over the past two years that we possess both sufficient allies and votes in the House of Representatives to substantively reform America’s failed marijuana laws, specifically to remove the cannabis plant from its Schedule I status under the Controlled Substances Act,” Justin Strekal, political director of NORML, said.

“Unfortunately, under GOP Senate leadership, these and many other important reform bills were dead on arrival. By contrast, Democratic leaders in the upper chamber…have already pledged publicly to debate and advance most all of these important reforms, including legislation to end federal marijuana prohibition via descheduling,” he said. “We look forward to working with soon-to-be Senate Majority Leader Schumer…to advance legislation with haste.”

With an incoming Democratic-controlled Senate and the party still in control of the House, it’s likely that cannabis reform will move in the 117th Congress. But the Biden administration’s role in promoting those reforms remains an open question.

The president-elect has faced significant criticism over his record pushing punitive anti-drug legislation during his own time in the Senate—something he now admits was a “mistake.” And reform advocates have similarly expressed frustration over his refusal to embrace adult-use cannabis legalization.

Biden has only gone so far as to back modest cannabis rescheduling, decriminalizing possession, expunging past records, legalizing medical marijuana and protecting states’ rights to enact their own policies.

On Wednesday, it was reported that the president-elect will nominate Judge Merrick Garland—a former Obama Supreme Court nominee who was blocked by Senate Republicans—to serve as attorney general.

There’s limited public information on Garland’s position on marijuana policy, but advocates have expressed concerns about statements he made in a 2013 federal appeals case concerning cannabis scheduling, where he seemed to indicate that there should be deference to the Drug Enforcement Administration when it comes to science that determines the federal classification of cannabis.

But Biden also recently selected a nominee for secretary of health and human services (HHS) who is amenable to reform, however, and in his role he could help facilitate rescheduling. While the Justice Department plays a key role in marijuana’s federal scheduling, a medical and scientific review by HHS is binding on the attorney general’s subsequent classification decision.

With the weight of a Democratic Congress that has signaled a willingness to pursue legalization, the pressure will be on for him to assume a proactive role in promoting reform—or at least the very least not discourage lawmakers from sending marijuana bills to his desk and then signing them when they arrive there.

While Vice President-elect Kamala Harris has been the lead sponsor of the companion Senate version of the House-passed MORE Act, she has signaled that she won’t necessarily press Biden on the issue.

In any case, a Democratic-controlled Congress led by legislators who have pledged to prioritize reform is a good indication that cannabis legislation will move in 2021. The extent to which it moves—and the response of the president—is less certain, for now.

New York Lawmakers File Marijuana Legalization Bill For 2021 Session

Photo courtesy of Mike Latimer.

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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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