Democrats from states where marijuana is legal say so many Americans have access to pot products that the federal government should begin regulating the industry, which generated more than $7 billion in sales last year.
New legislation introduced by Sen. Ron Wyden and Rep. Earl Blumenauer, both Oregon Democrats, would take marijuana off the list of federally banned drugs, tax marijuana at a rate similar to alcohol and tobacco, and end the threat of federal criminal penalties for businesses operating in states that allow the use of pot for recreational purposes.
Under the legislation, marijuana businesses would gain access to the regulated banking system. Many banks currently are reluctant to open accounts for marijuana businesses because of fears that the federal government could seize the money.
Another measure, introduced by Wyden and Sens. Michael Bennett (D-Colo.) and Rand Paul (R-Ky.), would allow marijuana businesses to claim federal deductions and tax credits, ending what the senators called a tax penalty on those businesses.
“This is commonsense legislation that will eliminate the growing tension between federal and state marijuana laws,” said Robert Capecchi, who oversees federal policy for the Marijuana Policy Project. “States are adopting laws designed to improve public safety by replacing the illegal marijuana market with a tightly regulated system of production and sales. The federal government should be working to facilitate that transition, not hinder it.”
Anti-legalization advocates say the current balance between federal and state laws are unsustainable, and that marijuana use remains a danger to public health.
“While we support federal laws against marijuana legalization, we don't want to see folks locked up or given criminal records for smoking pot,” said Kevin Sabet, who runs Smart Approaches to Marijuana, a group that opposes legalization. “While we don't support an enforcement-centered war on drugs, we do support a targeted approach consistent with public health and social justice that stops the corporate interests driving Big Marijuana.”
Oregon is one of eight states where voters have approved ballot measures to legalize marijuana for recreational use. Those new laws put states in conflict with federal law, which still considers marijuana an illegal drug. The vast majority of Americans live in states where marijuana is legal for medical purposes.
Until now, the Department of Justice (DOJ) has taken an arms-length approach to legal marijuana states. A DOJ memo issued under the Obama administration deprioritized prosecution of marijuana-related activity, effectively allowing the industry to operate in states where it is legal.
Attorney General Jeff Sessions, who has been hostile to marijuana liberalization laws, has said that agreement, known as the Cole Memo, will stand for now. But public officials in states where marijuana has been legalized — Washington, Colorado, California, Maine, Massachusetts, Nevada and Alaska have also legalized pot — remain wary of the Trump administration’s future actions.
“I don’t know what direction the Justice Department is going to go, but it is going to raise some legal issues,” Nevada Gov. Brian Sandoval (R) told The Hill last month. Washington Attorney General Bob Ferguson (D) said in an interview that legalization states would fight back in court if the Cole Memo is revised or rolled back.
“It is certainly my hope that the federal government does not undertake any significant changes,” Ferguson said. “States like Washington have legal tools to resist such an effort, in the same way we have legal tools to resist the executive travel ban.”
The measures introduced Thursday are unlikely to advance in a Republican-controlled Congress. But marijuana advocates are increasingly optimistic about their chances of moving some legislation during this session of Congress. In recent years, riders to appropriations bills that would block the Justice Department from enforcing federal marijuana laws have gained steam, and advocates hope the increasing number of states where legalization initiatives have passed will mean more allies in Congress.
A growing number of Republicans who don’t want the federal government suing their states have backed measures to ease restrictions on marijuana use. Rep. Tom McClintock (R-Calif.) sponsored the measure to block Justice from suing over marijuana. Sen. Cory Gardner (R-Colo.) has sponsored legislation with Blumenauer to expand access to the banking system for pot businesses. And Sen. Steve Daines (R-Mont.) introduced legislation to allow doctors working for the Department of Veterans Affairs to discuss medical marijuana with their patients.
Pro-marijuana advocates point to public polls that show sentiment has shifted. New data from the General Social Survey released Wednesday shows 57 percent of Americans believe marijuana should be legal, up from 31 percent in 2000 and 44 percent in 2010.
“The time for fiction and myth-making is over. The time for science, safety and social justice is now upon us,” said Tom Rodgers, a Washington lobbyist who backs legalization.