Democratic-led Senate could clear a path to marijuana legalization

Democrats taking control of the Senate — decided Wednesday by Democratic candidate Jon Ossoff's win over GOP Sen. David Perdue in the Georgia Senate runoff election — significantly changes the prospects for passing cannabis legislation in the new Congress.

But don’t expect President-elect Joe Biden to sign a comprehensive legalization bill by Easter.

Full legalization remains a tall order with such a slim majority: They will have a 50-50 share of the chamber and Vice President-elect Kamala Harris, a Democrat, will be able to join to break ties.

Some pro-cannabis senators and advocates say legalization may be more likely to progress if it is part of a policing and criminal justice reform package. Piecemeal legislation with broader bipartisan support such as banking access for cannabis businesses and medical marijuana research, however, have a better chance to advance. Chances greatly increase under a chamber led by Sen. Chuck Schumer (D-N.Y.) for the removal of a rider prohibiting the District of Columbia from starting a regulated cannabis industry.

Schumer v. McConnell: The two Senate leaders could hardly be more different on cannabis policy. Majority Leader Mitch McConnell has shut down attempts — even by Republicans like former Colorado Sen. Cory Gardner — to pass any marijuana reform legislation aside from medical marijuana research expansion.

Schumer is the chief sponsor of the Marijuana Freedom and Opportunity Act, which would federally decriminalize marijuana and create a trust fund for small businesses in the industry owned by women, minorities and other groups. Schumer has been talking about cannabis reform for a few years, but raised the issue frequently throughout 2020. He tweeted about it multiple times and hosted Facebook live conversations with lawmakers including Rep. Hakeem Jeffries (D-N.Y.) about legalization.

Cannabis banking legislation: Prospects for passing legislation that would make it easier for marijuana businesses to access banking 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 McConnell’s reluctance to bring any marijuana bills to the floor for a vote hamstrung its ability to advance.

Sen. Sherrod Brown (D-Ohio) is expected to become the next chair of the Senate Banking, Housing and Urban Affairs Committee. Brown didn't cosponsor cannabis banking bill in the last Congress, but he said in several interviews during the 116th Congress that the banking bill was something Democrats wanted to work on with Republicans. He added, however, that Democrats' ambitions are not limited to banking access.

“We're not just going to help the banks and then not at all deal with the damage that has been caused by arrests and law enforcement,” Brown said in late 2019.

Marijuana legalization: The biggest question mark is whether the 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. Schumer has promised that a Democratic-controlled chamber will try to pass sweeping changes.

Schumer has made legalization part of his criminal justice reform priorities. The House has already paved part of the road for the Senate, passing the MORE Act — which would remove federal penalties and expunge records — in early December. They are expected to bring up the same bill in the 117th Congress.

“In this past year … issues of systemic racism have been in the front row for Americans to wrestle with. So if it's taken up in that context, I think we'll see it addressed in the first six months we're in session,” said Sen. Jeff Merkley (D-Ore.) just before the November election.

Securing the votes, however, is a another story. It will almost certainly require 60 votes to move any 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.

“In that environment, I think, MORE fails, and then they go back to piecemeal legislation around cannabis,” said John Hudak, an expert on cannabis policy at The Brookings Institution. “Or they start to fold parts of MORE into a bigger criminal justice racial justice policing piece of legislation — that, I think, is probably the smart way to do it.”

Anti-legalization advocates are also banking on the slim majority to defeat any possible major legislative changes.

“Major bills are going to have a very hard time passing in that divided Senate,” said Kevin Sabet of Smart Approaches to Marijuana.

Medical marijuana research: This legislation has the broadest support, and bills expanding 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.

Committees: 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 legalizing cannabis and sorting out taxation and regulation of the industry will be on his agenda over the next year.

“I've got a bill — S. 420 (116) — and it's ready to go,” Wyden said just before the November election. The Marijuana Revenue and Regulation Act legalizes marijuana but, unlike most of the other legalization bills, it also provides a taxation and regulation framework for cannabis products.

“Sen. Harris, Sen. [Cory] Booker and Sen. Schumer — who has made it very clear, unlike Mitch McConnell, that he favors the kinds of reforms we're talking about — we're on the same wavelength, and we will work through it together in a cooperative kind of way,” Wyden added.

Another key lawmaker is Sen. Dick Durbin of Illinois, who won a bid to replace California Sen. Dianne Feinstein as top Democrat on the Senate Judiciary Committee. The panel could play a significant role in efforts to pass comprehensive changes to federal cannabis policy.

Speaking of the vice president elect: Harris will be the tie-breaking vote in the Senate. She was the Senate sponsor of the MORE Act in the 116th Congress and spoke regularly about the need for marijuana policy reform on the campaign trail during her own bid for the Democratic presidential nomination. Advocates and lawmakers expect that, if needed, she will not only cast a vote in favor of marijuana but will actively champion the issue as part of the new administration.

What’s next: Cannabis won’t be near the top of the agenda for a Democratic-controlled Congress or the Biden administration because of the ongoing coronavirus pandemic and the nation’s economic recovery. That means it will likely be months before any legislative proposals get serious consideration, unless they are part of a larger package. For example, banking could be included in a larger economic growth bill, and marijuana legalization in a criminal justice reform bill.