Majority Leader Chuck Schumer is pushing the Senate toward lifting the federal prohibition on marijuana with legislation that would represent the biggest overhaul of federal drug policy in decades.
The bill that Schumer is drafting with Senate Finance Chair Ron Wyden of Oregon and New Jersey Senator Cory Booker is still being written. Though they avoided the term legalization when announcing their plan, it is expected to remove marijuana from the list of controlled substances and tax and regulate it on the federal level while leaving states able to enforce their own laws regarding the drug.
Their proposal goes beyond decriminalization, which President Joe Biden voiced support for during his campaign, and may be a stretch for some Senate Democrats. But it taps into building public sentiment for legalization and moves by states to change marijuana laws, including Schumer’s home state.
New York is about to become the 16th state to legalize the drug for recreational use. On Tuesday night, the Assembly and Senate passed a bill that would allow personal cultivation and tax and regulate commercial sales. Governor Andrew Cuomo said he plans to sign the legislation. Several other states also are moving toward legalization.
In Washington, the House passed a major decriminalization bill in December for the first time but it was kept off the Senate floor by then-Majority Leader Mitch McConnell. Prospects for revamping marijuana laws have vastly improved with Schumer now in charge of the Senate’s agenda, but getting the 60 votes needed to overcome a filibuster remains a major challenge. In addition to winning over Biden on legalization, Schumer has yet to line up all 50 senators who caucus with Democrats — some of whom have long been skeptical of legalization — let alone at least 10 Republicans.
The politics of marijuana have been shifting in both parties as voters in both red states and blue have voted to legalize it. Seven Senate Republicans led by Steve Daines, a conservative from Montana, have signed on so far to Oregon Democrat Jeff Merkley’s SAFE Banking Act, more modest legislation allowing marijuana businesses to have easier access to the banking system and capital markets. Others back bills giving cannabis businesses access to insurance products and still more back additional medical research.
Schumer, who has been strategizing with advocates of legalization, wants to go much further with the bill he, Booker and Wyden are are working on, and his biggest ally is a marked shift in public opinion.
Gallup found in November a record 68% of adults backing legalization, up 20 points from 2012, when Colorado and Washington became the first two states to fully legalize the drug. And a 2019 Pew poll found 91% say it should be legal at least for medical use. Republican voters are split nearly 50-50 on recreational marijuana, Gallup found, while Democrats, independents and younger voters strongly favor legalization.
Marijuana stocks have been soaring in recent months on the prospect of rapidly expanding markets as more states move to loosen restrictions.
U.S. sales of legal cannabis and its derivatives like CBD are expected to exceed $26 billion this year, up from $22 billion last year, according to Euromonitor International, a market research company.
Representative Earl Blumenauer, an Oregon Democrat as well as the founder and co-chair of the Congressional Cannabis Caucus, expressed optimism that change is coming.
“The table is set for full legalization,” he said in a statement. “We have a strong base of support in the House and in the Senate we no longer have the Mitch McConnell roadblock. It’s not a forgone conclusion, but it’s the strongest position we’ve ever been in.”
For Schumer, the issue could help him fend off a potential progressive primary challenge next year, when he will be seeking a fifth term. It’s not the only time he has gotten out ahead of Biden — he’s also pushed the president to support Senator Elizabeth Warren’s proposal for an executive order canceling as much as $50,000 of student debt per person, something Biden so far has resisted.
Congress has for years now passed as part of the annual, bipartisan spending bills a bar on enforcing prohibition against medical marijuana use in the dozens of states where such use is legal. The House in the past two years has repeatedly passed marijuana banking legislation before passing the broader decriminalization effort in December’s lame duck session.
At the same time, successive administrations have largely allowed state-authorized marijuana operations to continue without enforcing federal prohibition. Attorney General Merrick Garland indicated during his confirmation process he doesn’t see enforcing prohibition in states that have legalized marijuana as a good use of resources.
Garland also criticized marijuana laws as leading to “mass incarceration and racial disparities.”
Democrats have also highlighted that African Americans are much more likely to be charged with crimes despite similar rates of use.
“One of the things we want to do is not simply decriminalize, but make sure that records are expunged so that people don’t live their lives as if they committed the most dastardly felony because they smoked marijuana,” Schumer said in a recent video promoting the effort.
He added he wants to make sure money that comes in from legalizing the drug goes to smaller companies and communities of color he said have been most harmed by the drug war. “We don’t want the big tobacco companies and the big liquor companies to swoop in and take over,” Schumer said.
The new legislation is expected by the industry to include a broader plan for regulating cannabis than previous efforts, including laying out how the Food and Drug Administration would oversee it in food, beverages and supplements.
“Cannabis needs a federal regulatory framework that suits its unique role as both a medical and recreational product,” said David Culver, vice president of global government relations at Canopy Growth Corporation, a cannabis company. “The proposal put forward by Senators Booker, Wyden, and Schumer will accomplish that structure, and importantly, include critical social equity provisions similar to elements passed in the House last year.”
Absent federal legislation, the Biden administration could conceivably take some administrative steps on marijuana, like rescheduling it under existing law so it is not listed in the same category as heroin or cocaine or pardoning large numbers of people in prison for marijuana offenses, as a group of lawmakers has already requested.
There’s no sign that such a move is imminent. Asked about the proposed legislation from Schumer, Wyden and Booker or action to change the classification, White House press secretary Jen Psaki reiterated what Biden said during the campaign.
“He believes in decriminalizing the use of marijuana,” she said, “but his position has not changed.”
— With assistance by Tiffany Kary, and Nancy Cook