Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Monday, June 27, 2016

Is Congress now really "moving in the general direction of legalization" of marijuana?

The question in the title of this post is prompted by this notable new Politico article and its full headline: "Congress mellows on pot crackdowns: Following the lead of the states, it's moving in the general direction of legalization, advocates say."  Here is how the article begins:

Don’t break out the bong just yet, but Congress is quietly chipping away at the federal ban on marijuana. It’s not happening with a sweeping national law, but through modest provisions slipped into spending bills in recent weeks.

For example: Bills funding the Veterans Affairs Department have a line that lifts a prohibition on medical marijuana. The Senate Appropriations Committee has adopted provisions barring the federal government from interfering on pot enforcement where medical marijuana is already legal. And there’s movement in both chambers to make sure banks don’t get penalized for handling money from legal pot businesses.

None of these will bring overnight change on the federal level. But each little measure shows that Congress, following the lead of the states, is moving in the general direction of legalization, advocates say. “We can kind of look at this as the end of prohibition, or at least the beginning of the end of prohibition,” said Sen. Jeff Merkley, an Oregon Democrat who backed his state’s 2014 ballot initiative to legalize recreational marijuana and is helping lead efforts to soften federal restrictions.

Attitudes around the country and on Capitol Hill have changed so quickly that even advocates of rolling back pot restrictions have been surprised.  It was only a few years ago that even the most modest reform proposals were rejected in the House and Senate, said Michael Collins, deputy director of the Drug Policy Alliance.  Now?  “We just win all the time,” he said, sounding not unlike a certain presidential candidate.

Most of the winning has taken place during the humdrum, but hugely consequential annual appropriations process, and this year is no different. A series of bipartisan provisions to loosen marijuana laws have been attached to government funding bills and are making their way through the House and Senate.  In particular, lawmakers are making it easier for doctors to prescribe medical marijuana and are nudging banks to provide services to the nascent recreational marijuana industry, a key step toward legitimizing sales of the drug and paving the way for easy access at stores where pot is legal.

Democrats have typically been the strongest backers of reforming marijuana laws, but Republicans are increasingly lending their support as opinion shifts in red states, speeding up momentum in Congress.  “The missing component was the constitutionalists and the libertarian conservatives,” said Rep. Dana Rohrabacher, a conservative Republican from California, who has rallied GOP support to loosen restrictions.

I do not think it is accurate to even suggest that many members of Congress are moving toward full legalization, but I do strongly believe that most members have now come to see that, these days, there is likely more to lose than to gain politically by being a forcefully supporter of blanket prohibition at the federal level. And this reality makes the coming 2016 initiative votes in various states on full legalization so interesting and important. If full legalization wins in most states, I think Congress will see the political writing on the wall. But if it loses in a few states, I suspect the future of major legal reforms in Congress and elsewhere will be a bit slower and less certain.

http://lawprofessors.typepad.com/marijuana_law/2016/06/is-congress-now-really-moving-in-the-general-direction-of-legalization-of-marijuana.html

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