The Limits of Congress’ Cannabis Compromise

A liberal win wrapped in a conservative shell (or vice versa, it could be argued) isn’t the easiest thing to pull off these days, but that’s precisely what US Senators Elizabeth Warren and Cory Gardner are trying as the pair chart a bipartisan course for the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act they introduced this month.

STATES would sanctify in federal law — at least in part — the medical and recreational cannabis industries only where states have moved ahead with allowing cannabis sales, currently without the federal government’s permission. The senators say that the bill’s passage would mean easier access to banking and allow businesses to operate without the fear of federal interference.

Warren said Attorney General Jeff Sessions’ decision to pull the Obama administration’s so-called Cole Memo, which somewhat shielded operators in states that had passed medical or recreational cannabis from federal prosecution, prompted the pair to act.

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Warren, the liberal senator from Massachusetts, and Gardner, a Colorado Republican who as a member of the House once excoriated the Obama administration for its stance on marijuana and voted against protecting his home state’s cannabis industry, have crafted a fascinating political argument. Wrapping the issue of cannabis in one of the favorite tenets of conservatism on all manner of other issues — state’s rights through the Tenth Amendment — could be a bit of political sorcery the cannabis issue needs for reluctant GOP members to get on board. (We can almost imagine a Republican supporter’s outrage if things start to go south: “Mr. Speaker, does the modern Republican Party no longer believe in states’ rights?”)

Still, the pairing of unlikely political bedfellows also signifies the kind of messy compromise the STATES Act represents, and will make it harder for the proposed bill to live up to its promises to allow states to govern cannabis freely and “(allow) the federal government to get out of the way,” as Warren put it. Lest anyone be confused, Gardner tweeted, “Our bill does not legalize marijuana.”

It’s not the first time a Republican and Democrat have teamed up to work on the issue: former congressman Ron Paul, the former presidential candidate and libertarian-leaning Republican, and Barney Frank, a firebrand liberal, tried in 2012 to work together to legalize cannabis across the country. The bill never even garnered a hearing, perhaps a part of the lesson for Warren-Gardner’s narrow, measured approach.

Still, the bill would represent a significant win on a variety of complicated state and federal issues. But because the six-page bill deals primarily with amending the Controlled Substances Act of 1970, it’s limited in the kinds of protection it could provide to cannabis operators and those that interact with them, including banks.

As Warren and Gardner laid out in an explainer, STATES explicitly addresses banks by ensuring cannabis operators’ transactions aren’t labeled “trafficking.” Therefore, banks would, in theory, be more likely to give cannabis operators a green light.

US Rep. Jared Polis, a Democrat from Colorado and companion bill sponsor in the House, said in an email from a spokeswoman that easing access to banking and shielding cannabis operators from prosecution is “sensible” legislation that he believes most in the House would support. He also praised President Donald Trump’s initial, if hedged, support for the legislation but said the president “often wavers” later on.

Polis also noted some of the bill’s limitations. “Passing the STATES Act would prevent Sessions from targeting states where marijuana is legal, but we must still resolve problems with regards to access to banking, the disparate treatment of minority communities in marijuana-related prosecution cases at the local level, and the ability of agencies like the VA (US Department of Veterans Affairs) to [recommend] marijuana as an alternative to prescription opioids,” Polis told Cannabis Wire.

The bill also wouldn’t necessarily stop federal prosecutors from finding excuses to crack down on the industry if Sessions wants to go in that direction.

Robert Mikos, a Vanderbilt University Law School professor, told Cannabis Wire that any minor violation of state law could mean federal prosecutors could make a case against cannabis operators. He offered an analogy to restaurants, where even the best operators might score a 95 on a health inspection, meaning they get an “A” and are allowed to fully operate. Even so, an “A” restaurant with just a couple minor infractions means it is technically in violation of state law; while restaurants wouldn’t effectively be penalized by the state under that scenario, federal prosecutors could jump on marijuana operators for such smaller, state-level infractions. The STATES Act also fails to address how other agencies, such as the Food and Drug Administration and Environmental Protection Agency, would regulate cannabis, if at all, given their congressional mandate comes from other areas of federal law, leaving the option of certified organic cannabis or national quality control standards off the table.

Still, Mikos isn’t convinced that Sessions will play bad cop as many fear, and says the bill offers a significant step forward for cannabis, despite its limitations.

“It does complicate things when the chief law enforcement officer doesn’t necessarily agree with the spirit of the legislation,” he told Cannabis Wire. “It’s important to point out that Jeff Sessions, in all the time he’s been in office, hasn’t tried to crack down on the marijuana industry. (Those fears) may be unfounded.”

Most obviously, the Warren-Gardner push does nothing for those who want access to medical marijuana and live in one of the states where it remains illegal.

The Brookings Institution’s John Hudak told Cannabis Wire that today’s Congress is “still unlikely” to pass STATES, because Republican leadership hasn’t wanted to touch the legalization issue (it’s unclear whether Senate Majority Leader Mitch McConnell and others will go for Gardner’s states’ rights framing).

Hudak suggested that there are more effective ways to deal with cannabis legalization, but added that the STATES Act could represent the kind of compromise that represents progress.

“Legislation that doesn’t pass isn’t helpful either,” Hudak said. “A bill sitting in a drawer is not going to help someone who needs help. While certainly there are more comprehensive and more effective legislation that could be written, the US Congress is not in the business of producing the perfect.”

This story was first published in a Cannabis Wire newsletter. 

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