Federal Pot Prohibition Nears its End

Federal Pot Prohibition Nears its End

America has made up its mind on marijuana. Most Americans think it should be legal, and all but two states have decriminalized or legalized the drug in some form. But it remains federally banned, classified as a Schedule I controlled substance (the most strictly controlled). That situation might soon change.

Under the previous administration, legal marijuana became a multi-billion dollar industry. Though still illegal under federal law, the federal government assured states it would not interfere with state-based marijuana legalization, an arrangement that allowed the industry to thrive. The current administration, however, has made no such promise. And the threat of federal interference has left legal marijuana businesses in a tenuous situation that will impact consumers and the more than 150,000 people that industry employs.

Congress could step in to amend federal law by either removing marijuana from the list of controlled substances or adding an exemption for state-authorized marijuana. For two years, members of Congress introduced bills to update the nation’s marijuana laws. And for two years, these bills failed. It wasn’t because they have the votes; it’s because they were never voted on at all. That was largely thanks to one man: Rep. Pete Sessions (R-TX).

As chairman of the House Rules Committee, Sessions had control over the bills on which the full House could vote. This allowed Sessions, a staunch anti-drug warrior, to functionally kill any marijuana bill introduced by his colleagues. But then Sessions lost his seat in the last midterm election, and Democrats took control of the House.

The new committee chair, Rep. Jim McGovern (D-MA), is decidedly more open to bills reforming our nation’s drug laws. In an interview with the Boston Globe he revealed plans to pass legislation that would protect states with legal marijuana from federal intervention. And not only will the bill likely get a vote on the House floor in the next few weeks, McGovern predicts it will “pass with an overwhelming vote.”

McGovern did not specific which reform plan was most likely, but the smart money is betting that the proposal he referenced was the STATES Act, a measure CEI supported in the last Congress. Introduced in the Senate by Sens. Cory Gardner (R-CO) and Elizabeth Warren (D-MA) and in the House and by Reps. Earl Blumenauer (D-OH) and David Joyce (R-OH), the Strengthening the Tenth Amendment through Entrusting States (STATES) Act, would have amended the Controlled Substances Act, exempting from federal prosecution individuals and businesses in compliance with state, territorial, or tribal cannabis laws.

Last week Sen. Warren introduced the new version of the STATES Act. Co-signers include Sens. Gardner, Lisa Murkowski (R-AK), Dan Sullivan (R-AK), Rand Paul (R-KY), Kevin Cramer (R-ND), Catherine Cortez Masto (D-NV), Amy Klobuchar (D-MN), and Michael Bennet (D-CO). Reps. Blumenauer and Joyce introduced the companion bill in the House, with about 20 co-signers evenly divided between Republicans and Democrats.

The new version of the STATES Act is functionally similar to its previous iteration. In an emailed statement from his press secretary, Gardner noted that Congress must “change federal law to get out of the way and let the states decide for themselves how best to approach cannabis.” If approved, the STATES Act would provide assurances to the industry and clear up ambiguity for law enforcement.

With McGovern chairing the Rules Committee and support for marijuana legalization higher than ever, the STATES Act may fare better this time around. Its chances are particularly good in the House where the Financial Services Committee overwhelming approved the Secure and Fair Enforcement (SAFE) Banking Act, a bill that would give legal cover to banks working with licensed cannabis businesses.

The Republican-controlled Senate may prove more of a challenge but may still have a better chance of passing the bill now than it did last year. Senate Majority Leader Mitch McConnell (R-KY) has historically protected his GOP colleagues from being forced to vote on the controversial issue; but simply blocking a vote on the bill may not work this time around and might backfire. In the next election, many states will likely include marijuana liberalization measures on their ballots, and these measures typically increase voter turnout for Democrats. In an effort to wrest control of the Senate from Republicans, Democrats could (as filmmaker Michael Moore suggested) put marijuana measures on ballots in key swing states specifically to encourage younger and more liberal voters to come to the polls. Blocking a common-sense marijuana reform bill in the Senate might only convince more voters to support Democrats.

Election calculus aside, Republicans should support measures like the STATES Act on principle. As vocal defenders of federalism, they should recognize that the decision of whether marijuana should be legal is best left to state lawmakers and their constituents. Congressional Republicans don’t need to take a stance on marijuana legalization, they just need to get out of the way.

Michelle Minton is a senior fellow specializing in consumer policy for the Competitive Enterprise Institute, a free market public policy organization in Washington, D.C.

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