How Marijuana Is Going To Become Bipartisan

Photo Credit: Ethan Miller

When Jeff Sessions became attorney general, he had two main policy goals: crack down on immigration and restart the war on drugs. The former is one of the main reasons he still has a job; as mad as President Trump might be that Sessions recused himself from the Russia investigation, Trump loves what Sessions is doing on immigration. The latter isn’t something Trump seems to care much about. He’s all for punitive drug policies, but they’re not as important to him as, say, whether black athletes are kneeling during the national anthem.

But Sessions is not only making progress on drugs, he’s also bringing Democrats and Republicans together — to oppose him.

Today, Massachusetts Sen. Elizabeth Warren (a Democrat) and Colorado Sen. Cory Gardner (a Republican) introduced a bill called the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, which would essentially allow states to pass their own marijuana laws without interference from the federal government. Here’s a one-page explanation from the House sponsors, and here’s the bill text.

“It’s the Attorney General who gave us the impetus to bring our colleagues together to introduce this law,” Warren said at a news conference announcing the proposal.

Most directly, it’s a consequence of an action Sessions took in January, when he rescinded an Obama administration policy that directed U.S. attorneys not to prosecute people complying with state laws on medical or recreational cannabis. But the STATES Act goes further than reinstating that policy, because even if federal agents weren’t busting down the doors of dispensaries, the nascent marijuana industry still exists in a legal gray area that makes doing business very difficult.

That’s because even if you aren’t worried about getting arrested, if you run a marijuana business that’s legal in your state, you’re still constrained by federal law. Most importantly, the financial system is largely closed off to you. Because your business is illegal under federal law, you probably won’t be able to get business loans, open a bank account or take credit card payments. You’ll have to pay federal taxes, but you won’t be able to deduct the same expenses other businesses do.

“This is a public-safety issue,” said Gardner, because marijuana businesses are forced to hold and move large quantities of cash, requiring them to hire armed guards and making them vulnerable to robbery. So the STATES Act would exempt businesses that are complying with state laws (and meeting a few other requirements) from the Controlled Substances Act, which means they’d be able to enter the legitimate financial system.

This issue presents an interesting array of cross-cutting ideological considerations. Conservatives often advocate that the federal government do as little as possible, and that as much power and authority as possible be devolved to the states. Mean liberals such as me have often charged that this isn’t a sincere belief but is instead a justification they trot out only when there’s a federal policy they don’t like anyway. They want the states to be able to impose onerous work requirements on citizens to get health coverage through Medicaid, but they aren’t too happy when states decide that their local police departments aren’t going to act as deputies for Immigration and Customs Enforcement.

But here’s a case where they can put their federalism where their mouth is, not to mention demonstrate their love of entrepreneurship. Gardner noted at the news conference today that he opposed the Colorado initiative that legalized cannabis in the state in 2012, but he said he believes that states should be free establish their own policies that aren’t hindered by the federal government.

The truth is that while Gardner is a fairly conservative guy, he’s also a savvy politician who understands his constituents. Not only do about two-thirds of Americans support legalization — a number that has been growing steadily — but also, Gardner said that if they held the Colorado initiative again today, it would probably pass by an even larger margin.

That two-thirds number is important. It shows that while this is still an issue that roughly breaks down along Democratic vs. Republican lines, there are going to be many more Republican lawmakers, especially in swing states, who are going to decide that supporting legalization is a wise move to make. And if they can’t bring themselves to go that far, they could get behind something like the STATES Act, which would enable them to simultaneously say on one hand that they still believe marijuana is an evil weed that leads to depraved acts like eating ice cream and listening to music, but on the other hand that if it’s what their constituents want then they aren’t going to stand in the way, and that the businesses involved should at least be able to operate according to the same rules as everyone else.

What that means is that over time, the issue of marijuana could become, believe it or not, bipartisan. Yes, most of the opposition will still reside among Republicans, especially older voters. Polls show a clear correlation between age and support for legalization; in this Pew Research Center poll, for instance, 70 percent of millennials supported it, compared with only 35 percent of the Silent Generation, whose members were born before 1945. But that generation is dying off, and some polls even show a majority of Republicans favoring legalization.

Today Gardner said that he had talked with Trump about the STATES Act, and he implied that Trump was at least receptive to the idea. With a few more Republicans on board, you could see it passing in 2019, and even if Trump opposed it, it could become law in 2021 if there were a different president in office. The more that the cannabis industry becomes a legitimate part of the economy, the more normalized it will be and the more difficult it will be to undo.

And that’s how a once contentious, partisan issue becomes bipartisan and eventually ceases to be an issue at all. No matter how mad it would make Jeff Sessions.