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America’s Long Fight for Federal Marijuana Legalization

As public support for decriminalization of cannabis strengthens, a look at how the steps Congress takes in the coming months might affect the midterms.
March 14, 2021
America’s Long Fight for Federal Marijuana Legalization
A pro-cannabis activist holds up a marijuana cigarette during a rally on Capitol Hill on April 24, 2017 in Washington, DC. (Photo credit: MANDEL NGAN/AFP via Getty Images)

A few months ago, the House of Representatives voted on a bill that would decriminalize marijuana for the whole country. As the bill, sponsored by then Sen. Kamala Harris, was brought to the floor in early December of last year, Rep. Matt Gaetz (R-FL), nicknamed the “agitator-in-chief” in a recent profile, spoke before the vote. 

“The federal government has lied to the people of this country about marijuana for a generation,” Gaetz said. “We have seen a generation, particularly of black and brown youth, locked up for offenses that should have not resulted in any incarceration whatsoever.”

A few days later in a Washington Post op-ed, Democrat Pennsylvania Lt. Gov. John Fetterman, also wrote about how important it is to decriminalize marijuana. 

“We have known for decades that Black and brown communities are disproportionately prosecuted and harmed [for possession of marijuana], but the federal government and many states haven’t done anything to stop it,” Fetterman wrote.

While the bipartisan support from Gaetz and Fetterman may seem strange, it shouldn’t be all that surprising. 

Americans and the political parties (generally, anyway) agree that marijuana has fine properties for medical use, and public opinion on decriminalization of weed has shifted closer toward “The Big Lebowski” than “Reefer Madness” in recent years.

Politically, there is a hodge-podge of weed legality/illegality by states: 15 states where it is legalized, 11 where it is decriminalized and has legal medical use, 14 with medical use only, 2 decriminalized only, and 6 state where marijuana is fully illegal.

“I think it will still have traction in 2022 and 2024, as we are seeing this being a hot topic in many state capitals,” John Hudak of the Brookings Institute told The Bulwark. “In many states, the first waves a few years ago came as medical marijuana use, which were then followed by legalization. There is enough history and experience now that the opposition doesn’t have a strong argument anymore.”

The more than 1,500 marijuana subject bills filed in state legislatures in 2020 show the staying power of the issue in local politics. 

On the business side, marijuana legalization in the U.S. will become economically more viable, partly because it is legal in Canada, and could soon be legal in Mexico. Investors think the U.S. will be pressured by America’s northern and southern neighbors’ decriminalization of cannabis.

There is no doubt that marijuana will have some impact on midterm elections. But there are many who say it may be irrelevant in those races, as it is assumed to only be popular with younger voters — a consistently low turnout demographic. But the legal marijuana vote in Arizona last November seems to refute those assumptions and is a good indicator of where the public is on weed legalization these days.

President Joe Biden beat former president Donald Trump by about 10,500 votes in Arizona, while marijuana legalization won by about 650,000 votes. And this wasn’t just a large Phoenix vote which pushed it through; the marijuana legalization ballot passed in 11 of 14 Arizona counties, including seven counties that Trump won. 

“Support for the issue among Democrats is far stronger, but for it to be a turnout issue for them has long since passed,” Josh Hovey, a public relations consultant who worked on the successful legalization campaign in Michigan in 2018, told The Bulwark.

“Given how weak Biden has been on marijuana reform legislation, if Trump had come out in favor of the Arizona marijuana ballot, maybe he could have gotten more votes there, and he didn’t need that many,” Hovey continued. “Maybe in Pennsylvania and the Georgia senate races as well. Given how many conservatives sat out this election, or waffled to the Democrat side, had he picked a couple of issues more widely accepted — like marijuana reform – he might have been able to tip the scales in some key states.”

On the one hand, the horses are out of the barn on the statewide level, and there is no doubt that marijuana legalization will be passed in more states. It is estimated that about ten states will have some legislative or ballot initiatives being voted upon this year or next.

But the vote in Congress is a little more complicated. Because the MORE Act (emphasizing legalization and taking pot off the Schedule 1 list) was passed in the house before the Dems took over the Senate, it died in the Mitch McConnell senate sinkhole.

Now that the Dems control the Senate barely, New York’s Chuck Schumer and New Jersey’s Cory Booker want to resurrect pot legalization in this session.

In a mass email sent out to voters on Feb. 26, Schumer said that “Voters in four more states this election voted to legalize adult recreational use of marijuana, and that proves once again it’s past time to work to undo the harm done by misplaced priorities, particularly in Black and brown communities. It’s time to decriminalize marijuana nationally.” The problem is that Schumer will need 60 votes in the Senate to do so.

What will likely happen is incremental baby steps in Congress during the next 20 months before midterms. Julie Werner-Simon, an adjunct professor and former federal prosecutor at Drexel University’s Kline School of Law in Philadelphia, laid out what those baby steps might be in a paper earlier this month. Her advice is to do it in individual “piecemeal” fashion.

First, lawmakers must change the finance law which profits banks from making loans and credit cards used in marijuana dispensaries. Secondly, a single-subject standing bill to remove marijuana from the Schedule I list and allow medical marijuana treatment research to be done. “With those in place — and showing that the sky has not fallen … then revisions to the criminal code could occur followed by expungement legislation and other social justice components,” she writes.

Werner-Simon closes with this: “There are 20 months until the 2022 midterms. The soil is tilled for receptivity to a more mature marijuana industry operating under coexisting federal and state regulation and taxation systems … Even for the most conservative of political actors, this groundswell will be hard to resist. Marijuana has gone mainstream; its tie-dye stigma has diminished while action from the federal government has been incentivized. Federal marijuana legalization will ultimately have its day.”

And those thinking that the marijuana reform issues will not be seen by the public as far less important than immigration, police reform, HR1 civil liberties, and health care issues aren’t looking at the polling numbers.

Close to 70% of Americans favor pot legalization in some form or fashion now, and the polling numbers continue to spiral upward. The differences between states and parties and age demographics aren’t very noticeable any more. Politically, we know how that plays out.

When 70% of the public is for something, politicians tend to get behind that. It’s that simple, and that’s why marijuana reform will have some traction in Congress this year and during the midterm elections down the road.

Daniel McGraw

Daniel McGraw is a freelance writer and author in Lakewood, Ohio. Follow him on Twitter @danmcgraw1.