Why 2019 Could Be Marijuana’s Biggest Year Yet

On November 7, the day after Democrats seized control of the House with what would become a 40-seat swing, President Trump fired his Attorney General, Jeff Sessions. That day, at his home in California, Smoke Wallin’s phone blew up with congratulatory calls from friends and associates celebrating the political demise of the nation’s top law enforcement officer. Sessions had spent good parts of the preceding two years looming menacingly over a booming industry that is caught between a tidal wave of popularity at the state level and an implacable wall of illegality in Washington. Wallin, the president of Vertical, a cannabis company with a 1,500-acre ranch outside of Santa Barbara and operations in four states, was not unmoved by Sessions’ departure, but he saw an even more welcome development in the election results.

“People kept saying that with Sessions no longer attorney general, a major obstacle was removed from the cannabis movement’s progress,” Wallin told POLITICO Magazine. “I had to remind them that Jeff Sessions was not really the major problem. He had been all bluster and no action.” Instead, Wallin was focused on the departure of another Sessions — the all-powerful chairman of the House Rules Committee.

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Republicans had taken such heavy losses on Election Night, it would have been easy to overlook Texas Congressman Pete Sessions’ defeat to Colin Allred, a former professional football player and Obama administration HUD attorney, but Wallin understood that it had been Rep. Sessions, not Attorney General Sessions, who had almost-singlehandedly blocked marijuana reform in Congress by denying votes on marijuana-related amendments. With Pete Sessions gone, and Democrats in charge, the backlog of small-bore changes that marijuana advocates have been clamoring for since 2016 — clarification of banking rules; permission for veterans to talk to their VA doctors about medicinal marijuana; protections against federal interference for state-legal programs (medical and recreational) — are all due to appear in upcoming appropriations bills. Two hundred and ninety-six members of Congress (68 percent) represent the 33 states with at least medical marijuana, which means the votes are there to pass these amendments. In the words of Rep. Earl Blumenauer, the Oregon Democrat who is the dean of the Cannabis Caucus: “Cannabis reform is inevitable.”

Reform certainly didn’t seem inevitable two years ago.

Even though legal marijuana had continued its advance across the country, many observers, at the dawn of 2017, feared Jeff Sessions’ rise to the top of the Department of Justice would mean much stricter enforcement of federal drug law than had existed under President Obama. True to form, Sessions repealed the Obama-era Cole Memo, which had provided a buffer to keep the feds at bay while state-legal marijuana programs got their legs. But it had been Pete Sessions’ blockade of key legislation in Congress to protect state-legal marijuana programs that had a far greater stifling effect on the nascent industry that is expected to grow into a $25 billion market by 2025. As Wallin told me: “Everybody talks about Jeff Sessions, but honestly the big Sessions was really Pete.”

But even while Pete Sessions stood fast in the Rules Committee, the pressure at the state level kept mounting as deep-red states such as West Virginia, Louisiana, Arkansas, Oklahoma, and Utah passed medical marijuana laws. Then in November, a slew of gubernatorial candidates campaigned on pro-marijuana platforms, and a dozen of them won: 11 Democrats (Gavin Newsom in California, Jared Polis in Colorado, J.B. Pritzker in Illinois, Andrew Cuomo in New York, Tim Walz in Minnesota, Ned Lamont in Connecticut, Janet Mills in Maine, Gretchen Whitmer in Michigan, Steve Sisolak in Nevada, Michelle Lujan Grisham in New Mexico, and Kate Brown in Oregon) and one Republican (Phil Scott in Vermont).

In November, Michigan became the tenth state to legalize recreational marijuana, but the number of legal states could potentially double by year’s end. States like Illinois, whose new governor has made it known that he wants Illinois to beat Michigan to claim the title of the first midwest state to sell legal marijuana, are looking to legalize pot through their legislatures rather than at the ballot box. A legal marijuana map that included all regions of the country, rather than weighted to the mountain west, would place a new level of pressure on a Democratic-controlled Congress to get something done. And for the first time in several years, Congress seems ready for the challenge.

“This is the first Congress in history where, going into it, it seems that broad marijuana reforms are actually achievable,” said Tom Angell, an advocate-journalist who runs Marijuana Moment.

Members of Congress are lining up to introduce bills that never saw the light of day when Republicans ran the show. Two bills have already been filed: a re-introduction of the CARERS Act by Steve Cohen (D-Tenn.) and Don Young (R-Alaska), which would expand marijuana research, allow VA doctors to discuss it with veteran patients; and prevent the federal government from meddling with state-legal programs without removing marijuana from the schedules created by the Controlled Substances Act of 1970; and H.R. 420, the “Regulate Marijuana like Alcohol Act” by Blumenauer, which would remove marijuana from the list of most dangerous drugs, “de-scheduling it” in Congress-speak, and shift regulatory authority to the Bureau of Alcohol Tobacco and Firearms.

“For the past several Congresses, there have been dozens of pieces of marijuana legislation filed, but this is the first time where advocates can legitimately say that some of these bills can actually pass,” Angell told me.

And, sure, the Senate remains in control of Republicans, so it seems unlikely that such bills would have much luck there. But the current Senate is practically the same body that just a month ago passed a criminal justice reform bill 87 to 12, and under the leadership of Senate Majority Leader Mitch McConnell legalized hemp (the non-psychoactive sister plant of marijuana) through the Farm Bill.

This level of disconnection between state and federal law cannot hold for much longer, and it might not have to. In the wake of the Farm Bill, the idea that Congress could remove marijuana entirely from the list of scheduled drugs is now entirely conceivable; after all the plant is now legal, only the potency is in question. Maybe this year, for the first time, Blumenauer’s bill doesn’t seem so crazy. Nothing would solidify 2019 as marijuana’s biggest year yet more than a rollback of that half-century-old designation.

“It would not be shocking to see the end of federal marijuana prohibition signed into law this year,” Angell told me. “This is the first time that actually seems achievable.”

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Even before the election, Blumenauer proposed a blueprint for this Congress to legalize marijuana by the end of 2019.

“The House should pass a full de-scheduling bill,” the bow-tied, bike-pin-wearing Blumenauer said in October. With a 36-seat majority, passing a de-scheduling bill out of the House seems all but inevitable with Jerrold Nadler (D-N.Y.) chairing the Judiciary Committee and Nancy Pelosi becoming the first pro-cannabis Speaker of the House since Henry Clay, who actually grew hemp on his Kentucky plantation.

“Nancy Pelosi is out there as a champion on this issue,” Michael Collins of the Drug Policy Alliance told POLITICO Magazine.

Further emphasizing the rise of women in leadership on this issue, Blumenauer passed the torch of Democratic co-chair of the Congressional Cannabis Caucus to Barbara Lee (D-California), the first woman and first person of color to join a group that leaned heavily white and male.

“For far too long, communities of color and women have been left out of the conversation on cannabis. I am committed to ensuring that marijuana reform goes hand-in-hand with criminal justice reform so we can repair some of the harm of the failed War on Drugs,” Lee said in the press release. In the last Congress, she took a leadership role on this issue as the House sponsor of New Jersey Sen. Cory Booker’s Marijuana Justice Act, which garnered 43 co-sponsors.

Her Republican co-chair, David Joyce, is newer to the issue. He’s the first member of the Cannabis Caucus to not represent a fully legal state; Ohio is a medical marijuana state, whose dispensaries have only just opened. “Joyce has come really far, really fast on marijuana policy,” Justin Strekal of NORML told me.

Elected in 2012, Joyce had quietly used his role as a member of the majority in the Appropriations Committee to protect pro-marijuana amendments. Then last summer, he co-sponsored the House version of the STATES Act, a bare-bones legislative fix to Pete Sessions’ blockade of appropriations amendments and Jeff Sessions’ repeal of the Cole Memo. It was introduced in the Senate by Cory Gardner (R-Colo.) and Elizabeth Warren (D-Mass.).

These are the players to watch as marijuana legislation winds its way through the House this year. Although Republicans remain split on this issue, the Democrats have all pretty much fallen in line. Unlike other policies, such as Medicare for All, that seem to divide the Democrats’ liberal and moderate wings, “This isn’t one of those issues,” Collins told me. “Marijuana legalization is one of these issues that I feel Democrats are pretty united on these days.”

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Before the 2016 election, the only fully legal states were in the Rocky Mountains or west. That’s about to change dramatically. In the Northeast, marijuana will soon be totally legal from Madawaska, Maine, south to Cape May, New Jersey, and from Buffalo, New York, east to Cape Cod, Massachusetts.

Much of this momentum can be traced back to 2018 gubernatorial primary in New York, when Gov. Andrew Cuomo was forced to deal with this issue because of a primary challenge from Cynthia Nixon. Now, with Cuomo ready to legalize New York, its smaller neighbors are jumping on the bandwagon with a fear of missing out. In the Midwest, Illinois and Michigan are vying to be the first state in the region to implement legal sales, with Minnesota poised to be third.

“There’s such tremendous momentum, state-by-state,” Wallin, the president of Vertical Cannabis, told me. “How can you be for states’ rights without acknowledging that the states are making a statement?”

Among the statements being made by the states in the past year: Washington Gov. Jay Inslee (D) has begun pardoning citizens of his state with past convictions as part of his “Marijuana Justice Initiative.” In California, former Democratic Gov. Jerry Brown signed a bill last May that would allow hundreds of thousands of Californians to reduce or eliminate the marijuana crimes on their records. In Michigan, Gov. Gretchen Whitmer, also a Democrat, pledged to expunge records and free inmates convicted of marijuana crimes that were legalized on the same day she was elected.

And it’s not just Democrats. In Republican-controlled Florida, marijuana legalization is moving forward, even if by fits and starts. Last week, newly elected Republican Gov. Ron DeSantis announced he had asked the state legislature to repeal its ban on smokable marijuana, which it had imposed even after a 2106 constitutional amendment in favor of medical marijuana. “I don’t want to continue fighting some of these old battles.” Former Gov. Rick Scott, who fought against smokable marijuana until his last day in office, is now Sen. Scott, who is likely a no vote if a marijuana bill ever makes it to the floor of the Senate.

***

In the end, the success of major legislation in Congress is all about the Senate, where marijuana advocates “still face an uphill battle,” Sen. Ron Wyden (D-Oregon) told POLITICO Magazine.

Republicans gained two seats in November, but they lost Dean Heller, a reliable marijuana opponent, to Sen. Jackie Rosen (D-Nev.), a fierce marijuana advocate. Although the Republicans control the Senate with 53 seats, the more relevant number is 33. That’s the number of states that now have medical marijuana, which means 66 senators represent states where federal law has been repudiated in the state legislature or at the ballot box.

In 2020, 33 Senate seats will be up for grabs, 12 held by Democrats and 21 by Republicans. Of these, Republicans will defend nine seats in states with legal medical marijuana: Dan Sullivan in Alaska, Steve Daines in Montana, Susan Collins in Maine, Jim Inhofe in Oklahoma, Bill Cassidy in Louisiana, Tom Cotton in Arkansas, Shelley Moore Capito in West Virginia, Martha McSally in Arizona, and Cory Gardner in Colorado.

“It’s likely that Gardner will be re-introducing the STATES Act with Sen. [Elizabeth] Warren,” Strekal told me.

Tom Angell is also watching Gardner: “Even if Mitch McConnell isn’t personally on board with the changes that would be achieved by the STATES Act, it’s easy to envision a scenario where he, for electoral reasons, goes along with letting Cory Gardner bring that victory home to Colorado,” he told me. Gardner did not respond to a request for comment for this story.

If the STATES Act passed the House, it would land in the Senate Judiciary Committee, now chaired by Sen. Lindsey Graham, where, admittedly, hope for it dims.

“I’m just being realistic,” Michael Collins told me. “The challenge that you have with Lindsey Graham is that he got onto the CARERS Act, then he got off the CARERS Act. He didn’t get on it last year because I think he heard from people back in his state — law enforcement, et cetera… I think he regretted getting on the bill.” In 2016, I wrote about Graham’s flirtation with marijuana reform for POLITICO Magazine. “I think that story had a lot to do with it,” Collins told me. Graham did not respond to a request for comment.

If the Judiciary Committee is doubtful, there’s always the Appropriations Committee, where advocates have found success in the past. “The question is now, can we cobble enough votes together on the Senate Appropriations Committee to get a sort of McClintock vote,” Collins told me, referring to McClintock-Polis, a narrowly defeated amendment that would have protected recreational marijuana from federal interference. How would Susan Collins or Lindsey Graham vote on an amendment like that? That’s what Michael Collins is looking for.

Above it all sits McConnell, who has completely mystified advocates and observers with his recent advocacy for hemp and calling the vote for the First Step Act, the historic criminal justice reform bill, but only after a long and seemingly needless delay. “He’s an enigma, to be honest. He’s hard to read,” Collins said.

Blumenauer was equally clear on this point: “Senate leadership remains a question.”

McConnell’s staff declined to comment for this story by referring me to McConnell’s answer to this question last May, when he said: “I do not have any plans to endorse the legalization of marijuana,” which is hardly a no, but not a yes either.

“I mean, we could debate this, but I don’t think anybody really knows the mind of Mitch McConnell,” Collins told me, saying the House presents a much clearer path for progress. “I think we see a path through Appropriations, in terms of getting things done. Then, I think we need to see how things shake out in the Senate. Let’s see how Lindsey Graham is. Let’s see what Cory Gardner tries to get done. Let’s see what pull he has.”

Far away from D.C., from his view in Santa Barbara, Smoke Wallin seemed more optimistic than Collins: “[McConnell] gets a lot of credit for the Farm Bill, and he’s in a pretty strong position, and he can choose if he wants to do this. But it’s guys like Cory Gardner, who [McConnell] wants to get re-elected, that’s going to be the thing that drives it. You’ve got a risk of losing the Senate, and that’s the only thing that matters to Mitch at the end of the day.”

James Higdon is a freelance writer based in Louisville and author of The Cornbread Mafia: A Homegrown Syndicate’s Code of Silence and the Biggest Marijuana Bust in American History. He can be reached at @jimhigdon. Full disclosure: His father, Jimmy Higdon, is a Republican state senator in the Kentucky state legislature.

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