Federal cannabis reform and legalization is a matter of “when,” not “if.” But based on the structural dynamics of Congress and the complexities of administrative action, the “when” could be a very long time from now.
It’s a slow burn of federal cannabis reform
American views on cannabis have come a long way since the days of “Reefer Madness” and “Just Say No”. Today, 68% of Americans think cannabis should be legalized. It’s widespread support: Democrats, Republicans, young, old, non-religious, religious, northerners and southerners all have majority or near-majority support for legalization, according to Gallup.
Yet the dominant federal treatment of cannabis continues to date back more than 50 years, when less than 15% of Americans supported legalization. In 1970, Congress passed the Substance Control Act which places cannabis as a Schedule I drug. It is in the same category as heroin or LSD, defined as having no use currently accepted medicine and a high potential for abuse. To this day, it is still a federal crime for anyone to grow, process, distribute or even consume cannabis.
This view is at odds with most Americans and the growing number of states that have legalized the use of cannabis in one way or another. Recreational use of cannabis has been approved in 21 states, often through state referenda, with 39 states allowing some form of medical use.
In a federalist system with federal and state governments, this has led to the confusing circumstance of cannabis being both legal and illegal in some jurisdictions. Risk-averse institutions that face federal regulation remain largely on the fringes of the cannabis market.
But the grassroots movement isn’t going unnoticed in Washington, D.C. Federal lobbying by the cannabis industry has increased 100-fold over the past decade. Institutionalists like former House Speaker John Boehner (R-Ohio), who once opposed cannabis, are now lobbying on its behalf.
Hundreds of cannabis bills have been introduced in Congress, the House has passed legislation decriminalizing cannabis, and there’s bipartisan pressure to pass legislation this month to give cannabis companies better access to services. financial institutions in states where it is legal.
The momentum is clearly on the side of cannabis reform.
A majority is not enough for cannabis in the Senate
Majority support may be enough to pass a state ballot referendum or even legislation in the House, but the Senate is a different institution. Majority support for cannabis in the country is not how bills are passed.
There are 100 senators, two from each state. California, the most populous state and the first to legalize medical cannabis in 1996, has the same power as Wyoming, the least populous state without state-level cannabis reform.
Senators from the 26 smaller states make up the majority in the Senate. According to the latest US census data, a majority in the Senate of a small state would represent only 18% of the US population. Additionally, senatorial filibuster prevents cannabis legislation from passing without a 60-vote supermajority. This means that senators from the 21 smallest states, which represent only 11% of the American population, can prevent the passage of most laws.
Republicans don’t represent all of these small states, but they do represent most of them. Only six Republicans, or 12% of the GOP caucus, represent a state that has approved recreational cannabis use. Meanwhile, 21 Republicans, or 43% of the GOP caucus, represent the 11 states without a recreational or medical cannabis market.
That includes Senate Minority Leader Mitch McConnell (R-Ky.). The soon-to-be-senior Senate leader is relishing his power to defeat cannabis legislation. Democrats often try to join legislation, like the SAFE Banking Act to provide a federal safe harbor for state cannabis banks, with “mandatory” legislation like government funding and defense authorization. McConnell consistently ridicules Democrats for this approach, using his power to block attaching any cannabis provision to a larger bill.
The problem for cannabis supporters is that Democrats don’t have the votes within their caucus to stage a simple floor vote. SAFE Banking may have 60 votes, but progressive Democrats have made it clear they don’t support a piecemeal deal over broader cannabis reforms. Still, a more comprehensive bill would likely lose support from Republicans and some Democrats, who are only comfortable with smaller efforts.
With Republicans in the House next year, cannabis reform doesn’t seem like a top priority for Republican leaders. That could leave cannabis legislation languishing for years, especially if Republicans regain control of the Senate in 2024.
The Administrative Hoops of Cannabis Reform
Instead of legislative action, the Biden administration has the power to unilaterally change the legality of cannabis. It’s thanks to the re-listing or de-listing of cannabis as a Schedule I drug. But it’s not that simple. The last administrative review lasted five years and resulted in a refusal to reschedule cannabis.
The process begins with a petition to the Attorney General or a request to the Department of Health and Human Services (HHS) to review a drug like cannabis. Then the Food and Drug Administration (FDA) evaluates the drug from a medical and scientific perspective, including a review of the drug’s abuse potential. The Attorney General also conducts his own review. Based on the FDA’s analysis, the Secretary of HHS develops a recommendation for drug planning and forwards it to the Attorney General, who can then decide whether to proceed with regulation to reschedule or de-schedule.
In October, President Joe Biden asked his HHS secretary and attorney to “quickly” review the way cannabis is programmed. But the timing of Biden’s announcement, a month before the midterm elections, seemed more about boosting turnout among young voters than a heartfelt vision for cannabis reform. The teetotal biden has historically opposed major cannabis reforms. He will not be able to put pressure on his administration to review cannabis programming before the end of his first term.
Economist John Maynard Keynes said, “markets can stay irrational longer than you can stay solvent”. The cannabis market is only growing. As more Republican-leaning states take action and a younger generation of lawmakers take over, there is an undeniable destination for cannabis decriminalization. But the federal government is no stranger to taking its time to meet the market and the country in general where it is located. That’s reason enough to be skeptical of major cannabis reform in the near term.
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