McConnell’s marijuana conundrum: Cory Gardner

Last week, while Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellTrump blasts McCain, bemoans not getting 'thank you' for funeral GOP senator: Trump's criticism of McCain 'deplorable' McConnell calls McCain a 'rare patriot' and 'American hero' after Trump criticism MORE (R-Ky.) touted his pivotal role in lifting the federal government’s longstanding ban on industrial hemp and further announced his intention to allow a vote on the broad criminal justice reform bill, The First Step Act, Sen. Cory GardnerCory Scott GardnerOvernight Health Care: CDC pushes for expanding HIV testing, treatment | Dem group launches ads attacking Trump on Medicare, Medicaid cuts | Hospitals, insurers spar over surprise bills | O'Rourke under pressure from left on Medicare for all Dem group launches ads attacking Trump's 'hypocrisy on Medicare and Medicaid cuts' Trump keeps tight grip on GOP MORE (R-Colo.) saw an opportunity to advance his narrow marijuana reform bill known as The STATES Act.

In its simplest terms, the states act would create an exemption in the Controlled Substances Act to restrict the enforcement of federal prohibition in states that have reformed their laws. Thirty-three states, Washington, D.C. and the U.S. territories of Guam and Puerto Rico have enacted legislation specific to the physician-authorized use of cannabis. Moreover, an estimated 73 million Americans now reside in the ten states where anyone over the age of 21 may possess cannabis legally. An additional fifteen states have passed laws specific to the possession of cannabidiol (CBD) oil for therapeutic purposes.

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In an interview with the Denver Post, Sen. Gardner announced his intention to include provisions of the Act as an amendment to the First Step Act, stating that “I can’t think of a more appropriate piece of legislation than this bill to try as an amendment to.”

The question is: would McConnell allow for a vote on Sen. Gardner’s language when earlier this year he flatly stated: “I do not have any plans to endorse the legalization of marijuana.” Another question also looms. That is: Could reformers do better?

The States Act, in the view of many drug reform advocates, is wholly inadequate to be described as “comprehensive reform” for a number of reasons. First among them is that the legislation fails to decriminalize or deschedule marijuana at the federal level. It simply provides an ‘opt out’ clause for states that have already moved forward with their own statewide reforms.  

It also fails to provide relief to those who have past marijuana convictions on their records. By contrast, there are other federal bills currently pending which do address these concerns, including The Marijuana Freedom and Opportunity Act, introduced by Sen. Chuck SchumerCharles (Chuck) Ellis SchumerGOP senator: Trump's criticism of McCain 'deplorable' Schumer to introduce bill naming Senate office building after McCain amid Trump uproar Why we need to build gateway now MORE (D-N.Y.), and The Marijuana Justice Act, introduced by Rep. Barbara LeeBarbara Jean LeeHarris receives endorsement from 6 home-state mayors Dems put spotlight on diversity in tech Hillicon Valley: T-Mobile, Sprint racked up Trump hotel bills | Progressives find fresh target in telecom merger | Lawmakers divided over state privacy rules | FCC warns of future probe into Sinclair allegations MORE (D-Calif.) and Sen. Cory BookerCory Anthony BookerWarren, Klobuchar call on FTC to curtail use of non-compete clauses Citizens lose when partisans play politics with the federal judiciary Booker opens up about relationship with Rosario Dawson MORE (D-N.J.).

Further, there is much debate about how The STATES Act would impact the current tension between federal banking regulators, banks, and marijuana-related businesses. Right now, providing basic banking services to marijuana-related businesses is prohibited under federal law.

Nonetheless, according to the Financial Crimes Enforcement Network (FinCEN), as of September 2018, there are 486 institutions currently violating the law and providing accounts to marijuana-related establishments. Given the fact that The STATES Act does not actually end the policy of federal prohibition, it is still unclear how the enactment of this legislation would provide needed clarity to this situation.

That said, passage of Sen. Gardner’s language as part of the First Step Act would likely embolden state lawmakers to continue to move forward with their own reforms now that it is codified that the federal government will no longer intrude upon these state-sanctioned programs.

When it comes to how McConnell approaches the situation, it could simply be cold and calculated politics: Gardner is up for reelection in 2020 and recent polling shows him losing to a generic Democratic candidate 47-41, in a state where the legalization of marijuana is viewed favorably by 65 percent of all Colorado voters and 64 percent of Independent voters.

With only a 3-seat majority in the next Congress, would McConnell allow a vote on marijuana to protect his most endangered members? We might find out this week.

Justin Strekal is the political director for NORML, where he serves as an advocate to end the federal prohibition of marijuana and to reform our nation's laws to no longer treat marijuana consumers as second-class citizens.