By Reggie Snyder
In early 2020, prior to the coronavirus pandemic, cannabis reform efforts were making steady progress on Capitol Hill. By all objective metrics, 2020 was initially shaping up to be a banner year for the cannabis industry at the federal and state level. However, after the coronavirus spread rapidly across the country, cannabis-related legislation was largely overlooked or ignored all together as Congress and the nation grappled with the devastating effects of this new public health crisis.
In addition to the outbreak of a global pandemic, 2020 was also a remarkably significant election year. Democrat and former Vice-President Joseph R. Biden, Jr. was officially named the 46thPresident of the United States after defeating incumbent Republican President Donald J. Trump. The Democratic party, which already had control of the U.S. House of Representatives, won control of the Senate after securing victories in two runoff races in Georgia. So, heading into 2021, Democrats will control the U.S. presidency and both houses of Congress.
Because the coronavirus still plagues the nation, introducing and passing cannabis-related legislation likely won’t be a top priority on either President-elect Biden’s or Congress’ legislative agenda. To the contrary, Biden and Congress will most likely focus most of their initial legislative efforts on controlling the spread of the virus and addressing the lingering economic turmoil and challenges caused by the virus. Thus, cannabis-related legislation probably won’t be introduced for a vote in the Senate for several months, unless the legislation is part of a larger legislative package.
This article discusses the various cannabis-related legislation that the Democrat-controlled Congress may consider in 2021. It also discusses how the fundamental shift in political power on Capitol Hill affects Democrat Sen. Chuck Schumer’s (D-NY), the majority leader of the Senate, ability to introduce cannabis-related legislation in the Senate for a vote, and how Vice President-elect Harris’ tie-breaking authority as the president of the Senate will likely affect the outcome of any such vote.
The article also explains that, as the federal and state governments begin to gain control of the spread of the coronavirus, the Democrat-controlled Congress will likely focus on, among other things, introducing existing cannabis-related legislation (i.e., (1) the “Secure and Fair Enforcement (SAFE) Banking Act”; (2) the “Strengthening the Tenth Amendment Through Entrusting States (STATES) Act”; (3) the “Veterans Medical Marijuana Safe Harbor Act”; and (4) the “Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act of 2019”), for a vote in the Senate.
Ultimately, the article predicts that, in 2021 or early 2022, Sen. Schumer will introduce one or more existing cannabis-related bills (likely at least the SAFE Banking Act and the MORE Act) for a vote in the Senate. It also explains why, despite the fact that Democrats have a majority in the Senate, Democratic lawmakers will still likely need to persuade at least 10 Republican Senators to support it to avoid having the bill defeated by filibuster. And, the article explains why President-elect Joe Biden will likely sign any cannabis-related legislation that passes the Senate into law.
Cannabis Banking Legislation: Prospects for passing legislation that would make it easier for marijuana businesses to access banking services rise significantly with Democrats in control of the Senate. The SAFE Banking Act enjoys broad bipartisan support: It passed the House with support from nearly half of the chamber’s Republicans on board, and five GOP senators co-sponsored the bill in the last Congress. But, former Republican senate majority leader Mitch McConnell’s (R-KY) reluctance to bring any marijuana bills to the floor for a vote hamstrung its ability to advance.
Marijuana Legalization: The biggest question mark is whether the Democrat-controlled Senate can pass comprehensive changes to federal marijuana policy, including removing federal penalties around marijuana use and possession, regulating a new industry and expunging past marijuana-related criminal records. Sen. Schumer has previously promised that a Democratic-controlled chamber will try to pass sweeping changes. In this regard, Sen. Schumer has made legalization part of his criminal justice reform priorities. The House has already passed the MORE Act, which would remove federal penalties and expunge records. The Democrat-controlled Senate is expected to bring the MORE Act up again in the 117th Congress.
Medical Marijuana Research: This cannabis-related legislation has the broadest support, and bills expanding cannabis research passed both the Senate and House unanimously last year. That means the issue was likely to gain traction regardless of which party ended up with control of the Senate, though it is unlikely to be a priority for either party. The legislation also could become moot through executive branch changes—the Veterans Affairs and Justice departments already can expand research without an act of Congress.
Key Committees and Lawmakers: With Democrats in control of the Senate, a majority of committee chairs will be in the hands of lawmakers from states with legal recreational marijuana — including Senators from Oregon and Illinois, and both Senators from Washington state, Michigan and Vermont.
A key committee will be the Senate Finance Committee where the MORE Act was referred in the last Congress. It likely will be chaired by Sen. Ron Wyden (D-Ore.), who said in 2020 that legalizing cannabis and sorting out taxation and regulation of the industry will be on his agenda over the next year.
A key lawmaker is Sen. Dick Durbin of Illinois, who won a bid to replace California Sen. Dianne Feinstein as the top Democrat on the Senate Judiciary Committee. That Committee could play a significant role in efforts to pass comprehensive changes to federal cannabis policy.
Vice President-elect Kamala Harris, a Democrat, will now preside over Senate deliberations as the president of the Senate. In this role, she will have the responsibility of casting the tie-breaking vote on any legislation in which the Senate votes are evenly split, which is a very real possibility given the current 50-50 Democrat to Republican makeup of the Senate. Vice President-elect Harris’ tie-breaking power effectively gives Democrats control of the Senate for the first time since 2014. Democrats will also control the committees, the legislation, and nominations that are brought to the Senate floor—a power that previously belonged to Republican Senate majority leader Sen. Mitch McConnell (R-KY).
Vice President-elect Harris’ tie-breaking authority will likely be an important advantage for Democrats as they introduce cannabis-related legislation in the Senate. It is a well-known fact that she strongly supports marijuana legalization. She was the lead sponsor in the Senate of the MORE Act, a bill that Sen. Schumer also sponsored. She was also one of the original co-sponsors of Senator Cory Booker’s Marijuana Justice Act, the first legalization bill that attempted to frame legalization in the broader context of racial and social justice. She not only signed on to the legislation, but she publicly campaigned for its passage and became an outspoken proponent in the media. She was also a champion of the cannabis industry during her tenure in the Senate, most prominently as a co-sponsor of the SAFE Banking Act. In early 2020, she implored Senate leaders to allow cannabis businesses to be eligible for critical coronavirus relief funding available to most small businesses during the pandemic, even using her social media presence in support of the measure and highlighting that cannabis businesses employ 240,000 Americans whose livelihoods depend on these jobs.
In addition to Vice President-elect Harris, Sen. Schumer, the Democratic party majority leader of the Senate, also strongly supports marijuana legalization. He was the chief sponsor of the MORE Act. He has also talked about cannabis reform for several years, and throughout 2020, he raised the issue frequently. He also tweeted about the issue multiple times, and he hosted Facebook live conversations with lawmakers, including Rep. Hakeem Jeffries (D-N.Y.), about legalizing marijuana. Because Sen. Schumer gets to decide which pieces of legislation get introduced for vote in the Senate, he presumably will introduce cannabis-related legislation for vote, likely including the MORE Act (the legislation he personally sponsored) and the STATES Act. Indeed, in October 2020, he boldly stated that he will put his own de-scheduling bill “in play” and that “I think we’ll have a good chance to pass it.”
Given the combined strength and support of Vice President-elect Harris and Sen. Schumer, it is highly likely that cannabis-related legislation will be introduced in the Senate for a vote in either 2021, or in early 2022. Whether they will be able to secure enough votes from their Republican counterparts in the Senate to avoid a filibuster will likely determine whether the proposed legislation is passed.
Even with a Democrat-controlled Senate, securing the votes necessary to pass cannabis-related legislation in the Senate will still likely be difficult. The Senate cloture rule requires 60 members to end debate on most topics and move to a vote. While Senate rules still require just a simple majority (51 votes) to actually pass a bill, several procedural steps along the way require a supermajority of 60 votes to end debate on bills.
In the Senate, it will almost certainly require 60 votes to move any cannabis-related legislation, meaning there will need to be significant buy-in from Republicans. Moderate Democrats such as Sen. Joe Manchin of West Virginia are not guaranteed allies, and pro-legalization Republicans can’t be counted on to vote for a bill as progressive as the MORE Act. Just five Republicans backed the bill in the House.
Senators have two options when they seek to vote on a measure or motion. Most often, the majority leader (or another senator) seeks “unanimous consent,” asking if any of the 100 senators objects to ending debate and moving to a vote. If no objection is heard, the Senate proceeds to a vote. If the majority leader can’t secure the consent of all 100 senators, the leader (or another senator) typically files a cloture motion, which then requires 60 votes to adopt. If fewer than 60 senators—a supermajority of the chamber—support cloture, that’s when we often say that a measure has been filibustered.
The “nuclear option” is a parliamentary procedure that allows the Senate to override a standing rule of the Senate, such as the 60-vote rule to close debate, by a simple majority of 51 votes, rather than the two-thirds supermajority normally required to amend the rules. The option is invoked when the majority leader raises a point of order that contravenes a standing rule, such as that only a simple majority is needed to close debate on certain matters. The presiding officer denies the point of order based on Senate rules, but the ruling of the chair is then appealed and overturned by majority vote, establishing new precedent.
This procedure uses Rule XX to allow the Senate to decide any issue by simple majority vote, regardless of Rule XXII, which requires the consent of 60 senators (out of 100) to end a filibuster for legislation and 67 for amending a Senate rule.
In November 2013, Senate Democrats, led by Harry Reid, used the nuclear option to eliminate the 60-vote rule on executive branch nominations and federal judicial appointments. In April 2017, Senate Republicans led by Mitch McConnell extended the nuclear option to Supreme Court nominations in order to end debate on the nomination of Neil Gorsuch.
However, as of January 2021, a three-fifths majority vote is still required to end debates on legislation. So, Senate Democrats will still likely need to convince at least 10 Republican Senators to agree on legislation to avoid or end a filibuster and get the bill passed.
While on the campaign trail, President-elect Biden said that his administration will pursue marijuana decriminalization and expungements for people with prior cannabis convictions. He also said that he favors legalizing medical cannabis (as opposed to recreational cannabis), modestly rescheduling marijuana under the federal Controlled Substances Act, and letting states set their own policies regarding regulating the cannabis industry within their respective borders without federal intervention.
It is also important to remember that President-elect Biden will be joined by Vice President-elect Harris when he enters the Oval Office, and as discussed above, she is a strong supporter of marijuana legalization. After being selected by President-elect Biden to serve as his Vice President, Harris said she struck a “deal” with Biden that she would be allowed to candidly share her perspective on a range of progressive policies he currently opposes, including legalizing marijuana, but she hasn’t indicated that she would proactively push him in that direction.
So, it at least appears that President-elect Biden is supportive of marijuana reform and would at least seriously consider signing cannabis-related legislation that passes the Senate, particularly the STATES Act and the MORE Act. And, given Vice President-elect Harris’ and Sen. Schumer’s strong support of marijuana legalization, the odds are that President-elect Biden would sign any such bill into law.
What was set to be a banner year for the cannabis industry on both the federal and state level in early 2020 was substantially disrupted and slowed down by the coronavirus pandemic, nationwide protests for equality and social justice, and the 2020 presidential election. In 2021, marijuana reform likely won’t happen immediately. President-elect Biden and Congress will most likely focus most of their initial legislative efforts on trying to control the spread of the virus and on addressing the lingering economic turmoil and challenges caused by the virus. Accordingly, it will likely be months before any cannabis-related legislative proposals get serious consideration in the Senate, unless they are part of a larger package.
However, the good news is that, with the Democrats in control of the U.S. Presidency and both houses of Congress, marijuana reform at the federal level is closer than ever to becoming a reality. Cannabis-related legislation therefore will undoubtedly regain its initial momentum in the Senate, which will lead to the introduction and passage of one or more cannabis-related bills. Indeed, Sen. Schumer will almost certainly introduce the SAFE Act (which was sponsored by Vice President-elect Harris) and the MORE Act (which he sponsored personally) for a vote in the Senate.
In the Senate, Sen. Schumer, in his role as majority leader of the Senate, has the power to decide which bills will be introduced for vote, including cannabis-related legislation. And, Vice President-elect Harris, in her role as the president of the Democrat-controlled Senate, has the power to break any tie vote which, in the case of cannabis-related legislation, she would almost certainly always break any such tie by voting in favor of passing the bill.
Senate Republicans, however, still have the option of filibustering any cannabis-related legislation that Sen. Schumer introduces. To prevent Senate Republicans from utilizing this tactic, Senate Democrats will need to persuade at least 10 of their Republican colleagues to approve the bill. That will likely be a tall order given the current political tensions between members of the two parties in Congress, but it’s not entirely outside the realm of possibility. For instance, during the 2020 election, voters in several Republican and swing states approved cannabis-related ballot measures on Election Day. Sen. John Thune (R-SD), the party’s whip, now represents constituents in South Dakota who voted to legalize both recreational and medical marijuana by solid margins.
Sometime this year, or in early 2022, I predict that Sen. Schumer will introduce the SAFE Banking Act and/or the MORE Act in the Senate for a vote. If the bill made it to a full Senate vote, the vote would likely be split almost completely down party lines with the 50 Democrat Senators voting in favor of the bill, and the 50 Republican Senators voting against. Vice President-elect Harris would then break the tie vote by voting in favor of the bill. However, before a full Senate vote even happens, one or more of the Republican Senators, likely led by minority leader Sen. Mitch McConnell (R-KY), will likely filibuster the bill until it dies. Thus, the determination of whether any cannabis-related legislation ever passes the Senate will largely depend on whether Democrats are able to persuade at least 10 Republican Senators to support to bill to avoid having the bill defeated by a filibuster.
If the legislation ever passes the Senate, I predict that President-elect Biden will sign it into law, which will truly be a watershed moment for the cannabis industry that I believe will ultimately benefit the entire country.
Reggie Snyder is a partner in the Atlanta office of Taylor English Duma LLP. Snyder is an experienced trial lawyer with more than two decades of experience managing a wide range of litigation matters for clients in Alabama, Georgia and Texas.
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