May 26, 2022

Volume XII, Number 146

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Federal Marijuana Reform: You Can’t Always Get What You Want?

Aristotle, Confucius, Voltaire, and Shakespeare – each of them famously cautioned, in some fashion and in his own language, that perfect is the enemy of good. While we should strive for the best result, if the best result is not attainable, we shouldn’t forego a good result to end up with a bad result or no result at all.

And one need not look back thousands, or even hundreds, of years to see this principle at work in contemporary American politics. Just look at the current debate over the human infrastructure programs contained within President Biden’s “Build Back Better” proposal. That proposal contains a number of programs that have broad, bipartisan support in public polling. Democrats in the Senate and House of Representatives – frustrated in part by the lack of Republican support – have been unable to reach agreement on the appropriate scope of the legislation. As a result, it appears likely that a number of programs that standing alone may have easily become law in the end will not.

So, what do infrastructure spending and cannabis have in common? The point here is not (as we strive never to do) to choose a political side or criticize the substance of a political position; rather, it is to highlight an increasingly common political circumstance that may soon overtake the ongoing debate over cannabis reform.

The Proposed Reform Efforts

A group of Congressional Democrats have announced a plan to push an ambitious set of cannabis reform proposals this spring. “The federal proposals seek to establish 21st-century banking services for the nearly $18 billion industry and purge the criminal records of thousands of marijuana offenders.”

In a memo to the Congressional Cannabis Caucus, Reps. Earl Blumenauer (D-Ore.) and Barbara Lee (D-Calif.) wrote:

The growing bipartisan momentum for cannabis reform shows that Congress is primed for progress in 2022, and we are closer than ever to bringing our cannabis policies and laws in line with the American people.

The reform proposals include:

  • The Marijuana Opportunity Reinvestment and Expungement (MORE) Act would seek to remove cannabis from the Controlled Substance Act and purge records for those convicted of using marijuana.

  • The SAFE Banking Act would allow the cannabis industry access to an array of financial services such as commercial loans, checking accounts and credit-card processing.

  • The Medical Marijuana Research Act would remove restrictions to federal researchers studying marijuana to ensure that researchers have access to quality product.

Other bills would allow the development of a legal cannabis market in Washington, D.C.; enshrine the legality of state cannabis programs and the possibility that they should cover even federal workers; and provide for cannabis research trials for PTSD, while prohibiting retribution by  Veterans Affairs against physicians who recommend the substance.

“Taken together, the bills show in broad strokes what a marijuana liberalization policy could look like: a modern, diverse, regulated industry of small producers — not dominated by giants like alcohol and tobacco,” according to reports.

Likelihood of Passage of Reform Measures

As of the time of this writing, I believe there are sufficient votes in both houses of Congress – including Republican votes – to pass cannabis reform efforts. In particular, the SAFE Act and legislation allowing increased research could become law if they receive a straight-up vote. The harder question is whether those leading the charge will allow for the proposal to proceed to a vote in a piecemeal fashion or if they will insist that lawmakers vote on the entire reform package as a whole. If the latter, I think Republicans may balk at some of the more progressive provisions, including much of the MORE Act. If that happens, we will see whether the most strident supporters of cannabis reform are willing to take a narrower victory or if they will insist on an all-or-nothing approach.

This being an election year may further complicate matters. On the Republican side, I suspect there are members of Congress running for re-election who may support cannabis reform efforts in a vacuum but would not be inclined to cast a vote in support of cannabis reform in the midst of a primary challenge. Losing those votes may threaten the ability to pass any of these reform efforts. On the other hand, waiting until later in the year may not work either, as I suspect the White House and Democratic leadership in Congress may not wish to put cannabis reform front and center leading into midterm elections.

© 2022 Bradley Arant Boult Cummings LLPNational Law Review, Volume XII, Number 18
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About this Author

Whitt Steineker Cannabis Attorney Bradley Birmingham
Partner

Whitt Steineker has devoted his legal career to representing companies that provide a wide range of goods and services. He provides clients of all types with litigation counsel, transactional advice, and practical strategies for growth. Whitt advises clients of all sizes—from multinational corporations to local businesses—in transactional and litigation matters in jurisdictions across the country and around the world.

As co-chair of Bradley’s Cannabis Industry team, Whitt represents clients on a wide range of cannabis issues. In addition to...

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