Legalizing Marijuana Would Be Rare Bipartisan Win for Congress, So What's the Holdup?

Congress has a rare opportunity this year to pass a bipartisan piece of legislation that could increase federal tax revenues, promote the creation of small businesses, create jobs and enact criminal justice reform—all with broad public support from Americans across the political spectrum.

But despite the potential to be a slam-dunk with voters in a critical election year, comprehensive proposals to legalize marijuana on the federal level have yet to gain significant traction in Congress' current term.

Eighteen states have already legalized the recreational use of marijuana, a number of them through voter-initiated referendums, while many more allow medicinal cannabis, according to the National Conference of State Legislatures. Only three states have no state cannabis program. About 145 million people now live in states that have legalized marijuana, according to the U.S. census.

In a Gallup poll released in November, 68 percent of U.S. adults said they back the legalization of marijuana for recreational use.

Recreational marijuana legalization also has vocal supporters on both sides of the aisle in Congress, but conversations with several of the lawmakers leading the effort indicate it's unclear whether a vote will come in 2022.

"It's not a high-priority issue for voters, so it doesn't end up being a high-priority issue for elected officials," Melissa Michelson, a political science professor at Menlo College in California, told Newsweek

She noted that many voters already can get marijuana legally, and easily, in their states. "Without a push to make it a priority from the public, it seems unlikely, given all the other challenges," she said.

Lawmakers in both major parties have crafted a number of bills that address more limited issues, like banking regulations, criminal record expungement for people with nonviolent marijuana-related offenses, medical marijuana access and the availability of hemp products. But none have come up for a floor vote.

Advocates for marijuana reform say they aren't deterred by the fact that Congress, in the first year of Democrats' trifecta—control of the House and Senate as well as the White House—didn't send cannabis legislation to President Joe Biden's desk in 2021.

"When you look at the broader picture for the movement, 2021 was a great year, certainly at the state level," Erik Altieri, executive director of the National Organization for the Reform of Marijuana Laws (NORML), told Newsweek. "We're seeing a growing consensus that something has to be done. You can pretty much read the tea leaves and see where this is ultimately going."

Recreational marijuana legalization in both New York and Virginia was particularly significant, he said.

While it's hardly the most pressing issue for lawmakers these days, sources on the Hill who are working on marijuana reform say that largely behind-the-scenes discussions continue to be robust. Until about five years ago, the issue was mostly championed by liberal Democrats, but it's seen a recent surge in bipartisan support.

Today, there are Republicans who arguably fall more on the progressive side of the issue than Biden does.

Representative David Joyce, an Ohio Republican and former prosecutor who is now a co-chair of the Congressional Cannabis Caucus, surprised the House GOP leadership when he broke party lines and became active on the issue in 2013. Since then, several other Republicans—even a few of those who initially were unhappy with Joyce's public embrace of marijuana reform—have joined.

"I've seen a big shift on this issue since I was elected," Joyce told Newsweek. "We may find ourselves living in very partisan times, but the truth of the matter is that the tide has turned, and cannabis is no longer the partisan issue it once was."

The federal government still considers cannabis an illicit drug. It is classified as a Schedule 1 substance, along with heroin, LSD, MDMA and a number of other drugs. But Congress has eliminated federal spending on enforcement that would interfere with states' marijuana laws, so there is little federal involvement in practice. Legalization proposals would remove marijuana from the federal classification, officially leaving the issue to states.

Representative Earl Blumenauer, an Oregon Democrat and founding member of the Congressional Cannabis Caucus, has been fighting marijuana prohibition for decades, dating back to his days in the Oregon Legislature in the 1970s.

"It's right for the country, it's right for the economy, for public safety and for racial justice, more than anything," Blumenauer told Newsweek.

He remains optimistic heading into 2022. "I could not be more pleased with last year," he said, noting he's seen bipartisanship grow and more states embrace reform.

But the looming midterm elections, which could see Republicans take control of the House and possibly the Senate, shrink the time frame for action this year.

"What we need to do is be able to get the agreement on moving it forward," Blumenauer said.

Lawmakers notoriously take long breaks to campaign in their districts during crucial election cycles, leaving just the next few months for any major action. This year, Democrats are also facing a heavy lift on other priorities, including the Biden-backed Build Back Better package that significantly expands the social safety net, as well as voting rights legislation.

Both of those efforts face giant hurdles in the Senate. The massive Build Back Better proposal needs support from all 50 Democrats to pass, and the voting rights legislation needs the support of at least 10 Republicans to meet the chamber's 60-vote threshold to avoid a filibuster, or a rules change to get around it. In the meantime, the Senate has been taking up confirmation of Biden appointees.

If Republicans regain control of either chamber, some marijuana legislation advocates worry it could create another setback, depending on leadership's priorities.

"We're going into 2022 with an opportunity to work with a Senate leadership that is on our side," Blumenauer said. "In the past, legislation would make progress in the House and then go to the Senate and die in [then-Majority Leader] Mitch McConnell's cannabis bill hospice program."

Still, some reform advocates, including Senate Majority Leader Chuck Schumer, are pushing the time limits as they aim to roll major proposals into one lengthy, omnibus-type marijuana reform bill, hoping the pieces with the broadest support can serve as leverage for more controversial measures. While presenting a sweeping "discussion draft" of the plan to reporters last July, Schumer defended the decision to go big.

"Not only will this legislation remove cannabis from the federal list of controlled substances but it will also help fix our criminal justice system, ensure restorative justice, protect public health and implement responsible taxes and regulations," the New York Democrat said.

Senate leaders are soliciting input from interested stakeholders—among them criminal justice reform advocates and the marijuana industry—before presenting a final version.

Schumer's office didn't respond to Newsweek's request for an update.

Senator Cory Booker, a New Jersey Democrat who is working with Schumer on the effort, told Newsweek that the goal is to go beyond simply legalizing marijuana use to "pair common sense financial policies with strong restorative justice provisions that seek to address the many injustices experienced by Black and Brown communities."

Others have advocated for fast-tracking the more popular measures that have the strongest chance of winning the bipartisan support needed to pass in the Senate, including legislation called the SAFE Banking Act that would allow banks to do business with legitimate cannabis-related businesses without facing federal penalties. Under current law, cannabis businesses, even those regulated on the state level, are forced to operate cash-only.

Blumenauer said he worries that blocking businesses from normal banking options has created a system where dispensaries are "sitting ducks" for robberies and other crimes.

Joyce said that while he supports a comprehensive bill, he believes there's an opportunity now for more incremental reform that shouldn't be squandered by pushing an all-or-nothing proposal.

He recently teamed up with Representative Alexandria Ocasio-Cortez, a New York Democrat, on proposed legislation that would give federal grants to states to help cover administrative costs for expunging cannabis offenses. It's called the Harnessing Opportunities by Pursuing Expungement (HOPE) Act.

"If a conservative former prosecutor like myself and a progressive can find common ground on this issue, why haven't President Biden, Leader Schumer and Speaker [Nancy] Pelosi worked to enact sensible bipartisan reforms?" Joyce asked.

Senator Rand Paul, a Kentucky Republican, mocked Democrats in a December tweet for their decision not to separately take up the bipartisan banking reform proposal that likely had enough support to pass.

"This should be a complete no-brainer, as so many states have legalized now and we need business to operate," Paul wrote. "​​I would go much further and end the federal war on a plant entirely, but at LEAST let legal business operate as legal business."

Paul's office didn't respond to Newsweek's request for comment.

Blumenauer said that a vote on a narrower reform like the SAFE Banking Act could show how many members are likely to support further efforts when they come to the floor.

"The vote on the SAFE Banking Act is the best whip count you can get. People have to stand up and vote publicly," Blumenauer said. "People will be surprised at how much support there is."

During his July press conference, Schumer addressed his decision to put off the separate banking bill.

"Communities of color have paid such an awful price for the historical over-criminalization of marijuana that we want to make sure that that money goes back to them and doesn't just let the biggest, strongest banker get to just scoop it all up," he said.

But even NORML's Altieri said that, at this point, any action is better than none at all. "Half of nothing is nothing," he said. "Any time you can have a win, we believe you should take it."

On the campaign trail in 2020, Biden took a more progressive stance on cannabis than he had previously held, but he didn't make marijuana policy reform a major issue.

Still, advocates say they believe his election in some key states was likely lofted by reform supporters. Arizona, for example, legalized the recreational use of marijuana in a ballot measure supported by 60 percent of voters. In the same election, Biden narrowly defeated Donald Trump, who had won Arizona four years earlier.

"There's no doubt in the minds of anyone who analyzes this that cannabis helped Joe Biden win Arizona," Blumenauer said.

Biden supports marijuana decriminalization but hasn't embraced the more drastic legalization proposals. Over the past year, the White House has repeatedly stood by that position, and Biden hasn't endorsed specific legislation.

Blumenauer said Biden has a "full plate" with other priority legislation, foreign policy matters and the raging pandemic.

"We actually don't need the president to take the lead. We just want to make sure [Biden and the White House] don't get in the way," he said. "So far, they haven't gotten in the way."

Still, Blumenauer said he does view it as an opportunity for Biden to act on racial and criminal injustice after he championed the 1994 crime bill that critics say contributed to mass incarceration. It also could work to de-escalate police interactions with low-level drug offenders.

"This has been a source of tremendous racial injustice, and here's an opportunity for President Biden to correct some of those problems," Blumenauer said. "It has no political downside—the public is there."

There's also a rather sizable upside for the federal government in the form of new tax revenues, but without an official bill, it's hard to estimate just how much.

The nonpartisan Congressional Budget Office estimated that a version of the Marijuana Opportunity Reinvestment and Expungement Act, which passed the House in 2020, would generate $13.7 billion in new federal revenues and cut prison spending by about $1 billion over the next decade. The MORE Act sought to remove cannabis from the list of federally controlled substances and set a federal tax on retail marijuana sales.

However, the nonpartisan Tax Policy Foundation has warned in recent years that the federal tax rate ultimately could be limited as more state and local governments allow and tax cannabis products. States already have been setting taxation rates designed to make legal cannabis prices competitive with illicit sales. A federal tax on top of their rates would drive up costs and potentially create an advantage for black market sales.

The possible federal taxation framework is still being discussed as lawmakers work to hammer out specific details. Some proposals, including the MORE Act, have called for setting a consumption tax at the retail level. Others suggest that taxing producers would prevent an immediate squeeze on small businesses.

Advocates want at least part of that revenue to be directed to services that help people who have been harmed by the so-called war on drugs, as well as toward law enforcement measures to fight illegal drug operations.

"There's a lot of challenges facing the American people right now, from rising energy prices to the ongoing pandemic—challenges that are rightfully taking center stage both in Congress and in the media," Joyce said. "But that doesn't change the fact that continued prohibition at the federal level is neither tenable nor the will of the American electorate."