Inside The Weed Legalization Bill Congress Is Voting On This Week

"It’s now time for us to remove the criminal prohibitions against marijuana at the federal level.” House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) Photo: Shutterstock

The MORE Act, the first legalization bill to make it to the floor of Congress, would decriminalize marijuana at the federal level, and begin to give back to the communities hit hardest by the War on Drugs

It was 2018, Democrats were about to gain control of the House of Representatives, and cannabis justice advocates knew they needed to get to work. Every two years, a handful of new states were joining those that had already legalized cannabis, either recreationally or medicinally. Federal decriminalization was inevitable. If advocates wanted to have any say in what legislation would look like, the first Democratic House majority since 2011 was their best chance to make inroads.

“Anybody who’s doing work on drug policy and criminal justice could see that it was only a matter of time before the federal government legalized [cannabis],” says Martiza Perez, national affairs director of the Drug Policy Alliance. “We wanted to make certain that when they did it they did it right.”

The result, two years later, is the Marijuana Opportunity Reinvestment and Expungement Act, which the House will vote on this week. It’s the first time either chamber of Congress will take up a bill to legalize cannabis, but the MORE Act goes far beyond simply decriminalizing it. Included in the bill are several social and criminal justice measures that would help lift up the communities of color ravaged by the War on Drugs, while helping build an equitable cannabis industry in which the people of color disproportionately impacted by prohibition have a seat at the table.

“I’ve been working on this issue longer than any politician in America and can confidently say that the MORE Act is the most comprehensive federal cannabis reform legislation in U.S. history,” Rep. Earl Blumenauer (D-Ore.), founder of the Congressional Cannabis Caucus, said in a statement. “Congress must capitalize on this momentum and do our part to end the failed policy of prohibition that has resulted in a long and shameful period of selective enforcement against communities of color.”

Federal cannabis legalization has been a long time coming. A Pew Research Center study published in November of 2019 found that 67 percent of the nation supports legalization, including a majority of Republicans. As of this November, 15 states and the District of Columbia have passed legislation or voter initiatives to legalize recreational cannabis, while 38 states and D.C. allow some form of it for medicinal purposes. Every cannabis measure up for a vote last month passed convincingly. One in three Americans now live in states that have legalized recreational use.

But Congress has been slow to come around. At the federal level, cannabis is still a Schedule I narcotic, a distinction it shares with heroin. The gaping discrepancy between federal and state law has led to a frustrating if not nonsensical set of complications, namely that the financial assistance available to typical small-business owners is not available to prospective cannabis entrepreneurs — even if cannabis is legal at the state level. The result is a burgeoning industry controlled almost entirely by wealthy white people. Studies have shown that black Americans have an ownership stake in only around four percent of cannabis-related businesses.

Meanwhile, black Americans are 3.6 times more likely to be arrested for cannabis-related offenses than white Americans, despite similar usage numbers, according to a study released earlier this year by the ACLU. “People in directly impacted communities of color have been left out of the conversations around marijuana legalization,” Perez says. “They’ve been left out of relief and pushed out of the regulated market, and yet they continue to bear the brunt of criminalization.”

Some states that have legalized cannabis have tried to address the issue of representation in the industry, but it’s hard to make much progress when funding is out of reach. “A minority business owner gets a license, great, but where is he or she going to get the operating capital to get that going?” says Steven Hawkins, executive director of the Marijuana Policy Project. “He or she cannot apply for a small business loan, because the Small Business Administration does not recognize cannabis businesses, because of the Controlled Substances Act. They can’t go to their banks and get a loan there. They can’t take advantage of tax incentives or opportunity zones or anything else that might exist at the state or municipal level for minority small-business owners.”

If the MORE Act is signed into law, not only would cannabis businesses be on the same plane as any other small business, it would allow owners of color easier access to Small Business Administration grants, and let them draw from a trust funded by a federal five-percent tax on cannabis retail sales. The trust would also go toward job development and legal training initiatives in communities disproportionately affected by the War on Drugs. Those charged or convicted of low-level federal cannabis offenses as a result of prohibition would have their records expunged, and states would be incentivized to do the same “The communities that have been victimized by the War on Drugs should have an opportunity to receive some resources to help repair the harms that have been caused,” Hawkins says. “That’s really what’s at the heart of the MORE Act.”

These provisions were developed in part by the Marijuana Justice Coalition, a diverse group of advocacy organizations the Drug Policy Alliance helped convene in 2018 to hash out what would need to be included in a potential bill. The coalition featured organizations representing people of color, veterans, immigrants, students, labor unions, the formerly incarcerated, and other marginalized interests with a stake in cannabis legalization. It soon began lobbying lawmakers like House Judiciary Committee Chairman Jerry Nadler (D-N.Y.), a longtime supporter of legalization, who in July of 2019 introduced the MORE Act in the House, with future Vice President Kamala Harris introducing a companion bill in the Senate. Nadler moved the bill through the Judiciary Committee that fall, setting the stage for a House-wide vote this year.

“Our marijuana laws disproportionately harm individuals and communities of color, leading to convictions that damage job prospects, access to housing, and the ability to vote,” Nadler said at the time. “Recognizing this, many states have legalized marijuana. It’s now time for us to remove the criminal prohibitions against marijuana at the federal level.”

The MORE Act was initially scheduled for a vote in September, the idea being to draft off the enthusiasm behind social and criminal justice reform stirred up by the reinvigorated Black Lives Matter movement. Some worried about the pre-elections optics of a vote to legalize cannabis while the nation contended with Covid-19, though, and the vote was delayed. House Democrats announced last week that it was back on the docket, and a vote is now expected to take place on Friday.

The MORE Act is expected to pass through the Democrat-controlled House, but the Senate isn’t expected to take it up any time soon. In May, Majority Leader Mitch McConnell (R-Ky.) stifled laughter as he mocked cannabis banking provisions Democrats included in their coronavirus relief proposal. As the vote has drawn near this week, the GOP has gleefully bashed the bill as a frivolous distraction. “The far left needs to sort of cool their jets right now,” Sen. Todd Young (R-Ind.) said during a press conference on Tuesday.

But moving the MORE Act through the Senate immediately is not the point. A cannabis legalization bill passing in the House would still be a monumental achievement to build on in service of advancing both the industry and the fight against the War on Drugs. “It speaks to the cultural shift happening in the country and it would set a marker and make it easier for us to pass the MORE Act in the future,” says Perez. “It would be a historic vote. We would see where folks land on the issue.”

Perez said in September that she hoped the Senate would take up the MORE Act in 2021. This isn’t likely unless Democrats win both of the Georgia runoff elections in January. But it ultimately may not matter whether Democrats are able to secure control of both chambers of Congress. The movement to legalize cannabis is quickly becoming a bipartisan issue as states with Republican representation keep voting to allow recreational and medicinal use. “Most lawmakers are going to respond to their constituents,” says Hawkins. “Every state that passes adult use means you’re going to gain members of Congress. Even if they don’t become champions, they’re not going to vote no for something their constituents have come to embrace.”

Republicans like McConnell may scoff at cannabis-related justice provisions, and even those who support the MORE Act, like Rep. Matt Gaetz (R-Fla.), have taken issue with the bill’s restorative justice elements. But the work being done now to bake some of these measures into legislation means that once both chambers of Congress are ready to legalize cannabis, it’s going to be hard for them to do it in a way that doesn’t include a lot of these measures to lift up the communities impacted by the War on Drugs. Republicans like Gaetz may object to some of these provisions, but they’ll still vote for the bill because the bottom line is that their constituents want cannabis legalized.

Hawkins points to Sen. Cory Gardner (R-Colo.) as a Republican who has come to embrace cannabis in response to his constituents. “He didn’t start there,” Hawkins says. “But he became [a champion].” Gardner has indeed advocated for the industry in response to the success of legalization in Colorado, but he’s also stopped short of supporting legislation to legalize cannabis at the federal level. There could be a lesson there, as Gardner just lost his reelection bid by almost 10 points.

There are plenty of legitimate reasons why Gardner lost outside of his approach to cannabis policy, but it’s probably not wise for any elected official to oppose something such a significant majority of their constituents support. Republican senators from states like Arizona, Montana, and South Dakota, all of which voted in November to legalize recreational cannabis, could soon come around as the industry creates jobs and brings in revenue. Democrats are voting on the MORE Act now out of a belief that, sooner or later, they will.