McConnell’s marijuana conundrum: Cory Gardner

Last week, while Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellAir travel union leaders warn of 'unprecedented' safety risks as shutdown continues On The Money: Shutdown Day 33 | Fight over State of the Union | Pelosi tells Trump no speech on Tuesday | Trump teases 'alternative' address | Trump adviser warns shutdown could hurt growth | Mulvaney seeks list of vulnerable programs Demonstrators protesting shutdown arrested outside McConnell's office 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 GardnerGOP seeks to change narrative in shutdown fight The Memo: Concern over shutdown grows in Trump World Senate Republicans eye rules change to speed Trump nominees 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 SchumerCongress: Americans in Puerto Rico still need our help Airbnb is doing the Democrats' dirty work Protecting our judiciary must be a priority in the 116th Congress MORE (D-N.Y.), and The Marijuana Justice Act, introduced by Rep. Barbara LeeBarbara Jean LeeOregon Dem top recipient of 2018 marijuana industry money, study finds Democrats vow to lift ban on federal funds for abortions Live coverage: House elects new Speaker as Dems take charge MORE (D-Calif.) and Sen. Cory BookerCory Anthony BookerSenate ethics panel won’t penalize Booker over confidential Kavanaugh documents The Hill's Morning Report - Shutdown drama shifts to Senate The Memo: Diverse Democratic field lines up for 2020 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.