By Phillip Smith
Last week, the San Jose Convention Center hosted the National Cannabis Industry Association’s (NCIA) 2018 Cannabis Business Summit and Expo. More than 7,000 marijuana industry players and hopefuls crammed into exhibition halls and conference rooms for the three-day confab, located squarely in the heart of the world’s largest legal marijuana market — California.
The variety of stuff on display was mind-boggling: Armored cars, safes, “California compliant” marijuana delivery vans, multi-thousand-dollar extraction devices of gleaming metal and shining glass, lighting systems, cooling systems, myriad forms of packaging, business management systems, POS systems, cannabis industry talent headhunters, greenhouses, modular grow fixtures, insurance companies, law firms, real estate firms — vegan CBD gummies — and much, much more. And while a few tie-dyes could be spotted in the crowds, they were few and far between.
While for most attendees the expo was all about business, the legal marijuana business still has to ponder the specter of federal marijuana prohibition actually being enforced. And even at the state level — where the industry can make money — it is still constrained by the annoying fact that adult use marijuana is only legal in nine states and the District of Columbia. One panel of experienced marijuana watchers zoomed in on the politics of pot law reform to try to divine what the near future holds — not so much for the industry, but in terms of consolidating the political victories that have already seen marijuana move from the back alleys to, well, shiny big city convention centers.
The discussion among panelists NCIA director of governmental relations Mike Correia; Jolene Forman, staff attorney for the Drug Policy Alliance; and John Hudak, deputy director of the Center for Effective Public Management and a senior fellow in governance studies at the Brookings Institute, covered a variety of topics and sketched the outlines of what pot politics could look like and achieve between now and the 2020 elections.
DPA attorney Forman pointed to three pieces of federal marijuana legislation:
- The Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, S. 3032, sponsored by Sen. Elizabeth Warren (D-MA) with five Republican and four Democratic cosponsors. The bill would modify the Controlled Substances Act so that it would not apply to people acting in compliance with state laws in states where it is legal.
- The Marijuana Freedom and Opportunity Act, S. 3174, sponsored by Senate Minority Leader Chuck Schumer (D-NY). The bill would federally decriminalize marijuana by removing it from Schedule I of the Controlled Substances Act.
- The Marijuana Justice Act, S. 1689, sponsored by Sen. Cory Booker (D-NJ) and cosponsored by a virtual who’s who of Democratic 2020 presidential contenders, including Sens. Kirsten Gillibrand (D-NY), Kamala Harris (D-CA), Bernie Sanders (I-VT), and Elizabeth Warren (D-MA). It would remove marijuana from Schedule I of the Controlled Substance Act and eliminate federal criminal penalties for marijuana commerce.
While both the Schumer bill and the Booker bill would decriminalize marijuana, the STATES Act, which would only apply in places it’s already legal, is more likely to gain traction, said Forman, a position seconded by Correia.
“The STATES Act is most likely to move,” said Correia, who spends his days haunting the corridors of power on Capitol Hill as he lobbies for the industry. “Congress is incremental.”
Movement could come faster if Democrats take the House or Senate, he said. “Maybe the Democrats will be more aggressive,” Correia suggested, drawing a comparison with movement on gay and lesbian issues in recent years.
Not so fast, said Hudak, noting that key congressional committee chairs have bottled up marijuana bills so far. “Until both parties stop putting in foes of reform in leadership positions, there will be no progress,” he said. “And it’s not just the GOP.” (Until a few months ago he might have been referring to Sen. Dianne Feinstein, who represents the world’s largest legal pot market but who only dropped her opposition to legalization last May in the face of a primary challenge and is only beginning to shed last century’s prohibitionist ideology.)
There is no reason for Democrats to put enemies of reform in leadership positions, Hudak said. “Cannabis is already a Democratic core value.”
“Marijuana legalization could pass Congress right now,” Correia argued, “but it doesn’t get any hearings; it doesn’t get any votes.”
If Congress Fails to Act
DPA’s Forman explained that while it is now clear that states have the right to not criminalize marijuana and not enforce federal prohibition, a hostile Justice Department could still potentially wreak havoc.
“What is untested in the courts is whether federal preemption could block regulation,” she said. In other words, it’s possible that the Justice Department could blow up states’ ability to tax and regulate the industry.
Forman noted that medical marijuana states are currently protected from Justice Department interference by the repeated passage of amendments to spending bills blocking the DOJ from using its funds to go after medical marijuana where it is legal.
“We need the same for adult use,” she said.
Without legislation protecting marijuana, “the executive branch can do things, it could be more aggressive,” said Hudak. But he added that doing so would have a price. “That could affect the department’s working relationship with the states,” he warned.
Correia thought Justice Department meddling was unlikely, despite Jeff Sessions’ druthers. “It makes zero sense politically to interfere,” he argued, pointing to marijuana’s popularity in opinion polls.
Hudak pointed out a possible flip side to a hostile executive power. “A reform-minded president could do a lot,” he said, perhaps thinking of the Obama administration’s Cole memo laying out how federal prosecutors would lay off legal marijuana in the states. Despite Sessions having nullified the Cole memo, it still seems to be largely the approach of the land.
The 2018 Midterms
“This is an exciting year for cannabis policy politics,” said Hudak, pointing to the example of Texas, where progressive Democratic challenger and legalization advocate Rep. Beto O’Rourke is closing in on incumbent Sen. Ted Cruz (R).
“Beto is getting close to Cruz, and the whole time, he’s screaming about his support for cannabis reform. That’s transformational,” he said. “Politicians lag behind; they’ve been terrified of this issue. Now it’s politically beneficial. If you’re against cannabis, the best thing to do is shut up about it. Nobody is with you.”
It’s still an uphill battle in Texas, though. Cruz is leading O’Rourke by 8.4 points in the Real Clear Politics average of polls. But that’s only half as much as Cruz’s 16-point victory in his 2012 Senate race, and O’Rourke has three more months to move up. And just today, a new Texas Lyceum poll had Cruz leading only 41% to 39%, well within the poll’s margin of error.
According to Correia, trying to work with Republicans on Capitol Hill has led to lessons learned: “We see no point in trying to work with the GOP any longer,” he said. “We’ll be giving money to challengers in competitive races. The Democrats are thinking about this; they will run on marijuana.”
The 2020 Election
It looks like marijuana is going to be a popular issue in 2020 — or at least the people thinking about running for the Democratic presidential nomination seem to think so.
“Potential Democratic candidates are getting their names on big pot bills,” Forman noted.
Marijuana is also likely to be on state ballots in 2020, and that will be good for Democrats, said Hudak.
“There will be more initiatives, and those drive Democratic turnout,” he argued. “In 2012, Democrats in Colorado voted for cannabis — and for president, too. Democratic politicians are seeing this.”
But Correia said the current president could be a wild card here (as in so many other places): “Trump might just decide to steal the issue, to take it off the table.”
Given that Trump has signaled support for the STATES Act, and given Trump’s willingness to adopt any position if he thinks it brings him political gain, that’s not impossible. And it would take some immeasurable oomph out of Democratic sails.
The Next States to Legalize
Michigan will vote on a legalization initiative in November, and there will be efforts in Arizona and Ohio in 2020, the panelists said. But grassroots initiatives could also bubble up in places like North Dakota and Oklahoma, both of which saw serious efforts this year that will almost certainly not make the November ballot but do lay the groundwork for the next cycle.
Vermont became the first state to free the weed via the legislative process (although it does not allow retail sales), but Correia sketched out how the next couple of years could see Connecticut, Delaware, Illinois, Maryland, New Jersey, New York, and Rhode Island fall in line behind it. By the time November 2020 rolls around, most of New England and the mid-Atlantic states could be legal, with Illinois and Michigan creating a major toehold in the heart of the Midwest.
When it comes to marijuana policy and ending pot prohibition, it looks to be a very interesting and fruitful next couple of years.
(This article was prepared by StoptheDrugWar.org’s 501(c)(4) lobbying nonprofit, the Drug Reform Coordination Network, which also pays the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)