|Legal Marijuana’s Big Moment |
Despite hostility from the Trump administration, signs indicate federal decriminalization is only a flipped House away.
By JAMES HIGDON
April 24, 2018
A couple of weeks ago, John Boehner was dining at one of his favorite Washington haunts, Trattoria Alberto on Barracks Row, when in walked Earl Blumenauer, the Democrat from Oregon known as one of the most fervent advocates for legal marijuana in Congress. In years past, the two men would have had little in common, but earlier that day Boehner announced he was joining the advisory board for Acreage Holdings, one of the largest marijuana corporations in the country. It stunned many in the political world because the former speaker, whose tastes favor merlot and Camel Ultra Lights, had on several occasions spent political capital to defeat legalization measures: In 2014, he supported the congressional blockade of the District of Columbia’s recreational marijuana program and the next year he opposed efforts to legalize marijuana in his home state of Ohio.
Blumenauer was still so stunned by the turnabout, he couldn’t resist hailing his former adversary, who only a few hours earlier had advocated for marijuana’s full federal decriminalization, or its “descheduling,” in the parlance of Capitol Hill.
“John!” Blumenauer said, greeting the former speaker warmly, “What happened?”
“Well,” Boehner replied, “my thinking has evolved.”
He’s not the only one. In Washington, evolution on the marijuana issue is proceeding at warp speed in political terms. Boehner is just the latest in a string of noteworthy newcomers to the legalization movement that has been barreling through state houses for the past decade. Just in the past several weeks, Mitch McConnell fast-tracked a Senate bill to legalize low-THC hemp. Chuck Schumer announced that he would introduce a bill to deschedule marijuana entirely. Colorado Senator Cory Gardner struck a deal with President Donald Trump, who promised to not target Colorado’s legal marijuana industry in exchange for Gardner releasing his hold on Trump’s Department of Justice nominees. The Food and Drug Administration opened a comment period on the scheduling of marijuana ahead of a special session of the World Health Organization convened to re-evaluate marijuana laws, and both chambers of Congress passed “right to try” bills that might have accidentally legalized medical marijuana for terminally ill patients. Taken together they suggest that nearly 50 years of federal marijuana prohibition is about to disappear, and it’s happening in the face of an administration that has expressed its outright hostility to the notion.
“I don’t think we’ve seen a bigger transformation of the politics of marijuana in a single month since November 2012, when Colorado became the first state to legalize,” said Tom Angell, an advocate journalist who runs MarijuanaMoment.net. “It’s now very clear that both parties see this as a winning issue [and] they are worried about the other party taking ownership of it.”
Multiple currents are propelling this wave. In 2017, West Virginia became the 29th medical marijuana state, and earlier this year, Vermont became the ninth state to permit adult use. Tax revenue for fully legal marijuana in Colorado reached $247 million last year. Opinion polls continue to show approval ratings for marijuana higher than any politician’s, including in deep red states like Texas and Utah. The opioid addiction crisis has pushed medical marijuana further into the mainstream; the American Society for Addiction Medicine, which is not an advocate for legalization, acknowledges that opioid overdose death rates are 25 percent lower in states with legal medical marijuana. That list now includes Ohio, Boehner’s home state, where dispensaries will open later this year.
Boehner must have known he would soon face the smug satisfaction of his former colleagues who had goaded him on this issue for years, but the fact that it was Blumenauer he ran into was a kind of poetic political moment. Known for his bow tie and a lapel pin shaped like a bicycle, Blumenauer cuts a very different figure from Boehner, as different as their views on nearly every major political issue. With the exception now of marijuana. By chance, Blumenauer happened to be wearing a pair of marijuana-themed socks, and he offered to accessorize Boehner. According to Blumenauer, Boehner demurred.
When POLITICO Magazine caught up with Blumenauer last week, he bubbled with enthusiasm. The prospects for legalizing marijuana at the federal level, he said, have never been brighter. “It’s kind of exciting, isn’t it?” he told me. “It’s all cresting this year … I think we’re entering into the final stages, if everyone does their jobs right.”
“I think the next Congress will finish the job of reform, and clean it up,” he told me, by which he means if it flips to Democratic control and legislation is permitted to proceed. “We’ve got the votes in the House and the Senate and there will be a huge shake-up in the next Congress.” With Democrats in control, the new chairs of the relevant committees would be pro-marijuana: Jerry Nadler in Judiciary, Frank Pallone in Commerce, and Jim McGovern in Rules. “These are our friends with good records,” he said.
Blumenauer thinks the votes are there now, but bills are bottled up by Republican leadership.
“I think this Congress, if the Republican leadership would not stifle this bipartisan consensus of virtually every Democrat and several dozen Republicans, if they’d just allow the vote, it would pass [a number of measures].” That includes an amendment known as Rohrabacher-Blumenauer, which protects state legal medical marijuana programs. The House denied a vote on Rohrabacher-Blumenauer in this Congress, but the same protections were added to the 2018 omnibus spending bill by a companion amendment in the Senate sponsored by Pat Leahy of Vermont.
As POLITICO Magazine reported earlier this year, Democrats have been rushing to support this issue in congressional races across the country, and it’s playing a role in governors’ contests in some of the country’s largest media markets, too, such as New York and Illinois. (In New Jersey last year, Governor Phil Murphy ran in favor of full legalization and won by 14 points.) Cynthia Nixon’s surprise entry into the New York race has pushed incumbent Governor Andrew Cuomo and New York Mayor Bill de Blasio on this issue: “We have to stop putting people of color in jail for something that white people do with impunity,” Nixon said in a video posted to Twitter. Representative Jared Polis, a marijuana-rights leader who represents Colorado’s 2nd District, is leaving Congress to run for governor. “Colorado voters want a governor who is going to stand up to President Trump and Attorney General Sessions if they try to interfere with legal cannabis in our state,” Polis told POLITICO Magazine.
In November, marijuana is on the Michigan ballot for adult use and on the Utah ballot for medical use. And in Texas, incumbent Senator Ted Cruz faces an unusually strong general election challenge from Representative Beto O’Rourke, with a recent poll that shows the Democrat within the margin of error. “Texas is as significant as anything we’re looking at,” Blumenauer told me. “Beto has been very outspoken. It’s not the centerpiece of his campaign, but he’s been very outspoken and he’s been friendly with us,” he said, joking that only a few years ago, talking out loud about marijuana was probably a felony under Texas law and now a pro-marijuana Democrat has a real shot at becoming the state’s junior senator.
“The more we discuss it, the more we talk about it, I find it’s not that hard to persuade people that reform is the right policy,” he said.
The nation was not founded with a prejudice against marijuana.
George Washington and Thomas Jefferson grew cannabis on their plantations, most probably for fiber and seed. Jefferson’s slaves planted his hemp in March; Washington’s in April. Henry Clay, the speaker of the House from 1811 to 1825, grew hemp on his Kentucky plantation. The first law against weed didn’t come until the early 20th century when the 1937 Marihuana Tax Act was passed, effectively outlawing the plant for both its medicinal and industrial applications. The prohibition was lifted briefly during World War II during the “Hemp for Victory” effort to supply the U.S. Navy with rope made from hemp fiber. After the war, hemp reverted to its illegal status, but it kept itself alive as “ditch weed” that grew wild in the fencerows of rural America.
During the Vietnam War, demand for illegal marijuana grew across the nation, becoming indivisibly linked with the protest movement against the war, which the Nixon administration continued to press. Nixon couldn’t repeal the Voting Rights Act that had passed just a few years before, but he could criminalize his opponents’ behavior. In 1970, he signed the Controlled Substances Act, which grouped illegal drugs into “schedules.” Marijuana was placed in “Schedule 1” along with heroin, defined as highly addictive with no medical value. Nixon seemed obsessed with cracking down on marijuana users, even after the passage of the CSA. On May 26, 1971, Nixon told his chief of staff, H. R. Haldeman, “I want a goddamn strong statement on marijuana … I mean one on marijuana that just tears the ass out of them.”
A wave of decriminalization followed Nixon’s resignation in the late 70s, but that was ended by Ronald Reagan, who doubled down on Nixon’s anti-marijuana policies. Bill Clinton signed the 1994 Crime Bill, which imposed mandatory life sentences after “three strikes” and mandatory drug testing for those on supervised release, provisions which led to prison overcrowding. The Department of Justice under George W. Bush prosecuted Tommy Chong for selling glass bongs across state lines and sent him to prison for it.
Many expected Barack Obama to legalize marijuana in his second term, but he did not. The best he could do was the Cole Memo, written by the DOJ, which directed federal prosecutors to use their discretion in pursuing marijuana cases in states where marijuana was legal.
The signals from the Trump administration have been mixed at best. On the campaign trail, candidate Trump seemed to embrace marijuana for medical but not recreational use. But his attorney general has made his antagonism toward marijuana clear at every stage. In January, Sessions rescinded the Cole Memo, causing a wave of anxiety through states whose residents had assumed that marijuana was on a glide path to full national legalization. But Trump appeared willing to compromise with Gardner for the sake of getting his nominees through. “We’re always consulting Congress about issues, including states’ rights, of which the president is a firm believer,” White House spokeswoman Sarah Huckabee Sanders said.
The president’s inconsistency is maybe the only thing that marijuana advocates can agree on says Kevin Sabet, executive director of Smart Approaches to Marijuana, an anti-legalization group. “With this president, things don’t exactly stay the same from week to week, so we are going to keep putting pressure on him on this issue,” Sabet told POLITICO Magazine. For SAM, that means pumping “a seven-figure amount,” according to Sabet, into anti-marijuana campaigns in states with ballot measures like Michigan, and another million-plus dollars on grass-roots operations and state offices, he said.
Sabet says the recent spate of good news for marijuana has also been good news for his organization’s fundraising efforts. “I’m more optimistic than ever. I’ve raised more money in the last week than we have in the last year. Because people are coming out of the woodwork because they are afraid. We’ve actually been energized by this.”
Despite Sabet’s optimism, members of Congress seem to be looking past his efforts to block marijuana law reform. Jared Polis is co-sponsor of the McClintock-Polis amendment, currently blocked in the Rules Committee, which would protect states that allow full recreational use. “Funding restrictions are nice, but until we actually change the law, there will always be uncertainty for consumers and people in the industry,” Polis told me. “So I’m continuing to work to get my ‘Regulate marijuana like alcohol’ bill passed.”
But because Polis is leaving Congress at the end of the year, it’s unlikely that stand-alone bill will pass while he’s in office because the chairman of House Judiciary, Bob Goodlatte, will not let Polis’ bill out of committee. But the prospects for a stand-alone bill got a boost last week in the Senate. Schumer announced his plan to introduce a bill that would deschedule marijuana outright. He isn’t the first senator to come aboard the marijuana legalization effort; he’s just the most recent. “I applaud Senator Schumer for taking a bold stance for nationwide decriminalization,” Senator Jeff Merkley (D-Oregon) told POLITICO Magazine. “The American public’s views on this issue are shifting rapidly, and Congress needs to keep up.”
While the Polis stand-alone bill is likely dead in this Congress, and the Schumer bill hasn’t been drafted yet, there is still one stand-alone bill to legalize cannabis that has a shot of reaching Trump’s desk for a signature: Mitch McConnell’s hemp bill.
Co-sponsored by an unusual coalition of senators from Kentucky and Oregon, the Hemp Farming Act of 2018 would deschedule any cannabis plant with a maximum THC level of 0.3 percent. While initially envisioned as a crop for fiber and seed, today’s hemp is largely grown for production of CBD, the nonintoxicating cannabinoid that has shown promise in treating epilepsy and other conditions. But the Drug Enforcement Administration still considers hemp to be a Schedule 1 drug.
“For far too long, the federal government has prevented most farmers from growing hemp,” Senator McConnell wrote in an op-ed published on Friday, which happened to be 4/20, the unofficial holiday of marijuana enthusiasts.
“Treating hemp and marijuana as the same thing represents the height of foolishness on the part of the federal government,” Senator Ron Wyden told POLITICO Magazine, in rare agreement with McConnell. “I’m working with my colleagues to get the current misguided federal ban on hemp out of the way of farmers in Oregon and across the country.”
The Senate majority leader did not respond for this story, but advocates for marijuana law reform are giving him grudging credit as hemp’s unlikely hero. “Seems pretty good to me,” said Tom Angell, of MarijuanaMoment.net. “There could be bigger implications if we legalize CBD production and legitimize that entire market. It would have broader implication than just making T-shirts and stuff.”
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.