As this Congressional session comes to an end, many people have been disappointed by the lack of action on important legislation. One of those is cannabis. Going forward, pro-cannabis legislators ultimately have choices to make. If comprehensive cannabis legislation is dead in this Congress—and it is—is any alternative palatable? Is the status quo of prohibition preferable to holding out hope for broad-based legislation at a later date?
As Democrats took control of the House, Senate, and White House in 2021, hopes were up. Many legalization supporters believed the time had arrived to advance this issue to the finish line. However, one year into the new Congress, reality should have finally set in: the math is still not favorable in Congress to pass comprehensive cannabis legalization and an alternative is likely necessary.
The reality that is holding Congress back from passing federal cannabis legalization is a simple one that often undermines complex, multi-faceted policy changes that have deep divisions within the legislative branch: there is not a sufficient coalition of House members and a filibuster-proof majority of senators who agree on comprehensive legalization. That result is often frustrating or bewildering for supporters of reform for two reasons. First, they look at national polling and see not just a majority, but a supermajority of Americans who support full-scale cannabis reform. Second, there are majorities of House and Senate members who would say yes to the basic question: ‘Should cannabis be legalized nationally?’
The latter, however, is the wrong question to ask. Often, in a legislative body, the issue is not whether a law should be reformed, but how that law should be reformed. And there’s the rub for federal legalization legislation. Liberals and progressives in the Democratic Party cannot agree with moderate and libertarian Republicans on what cannabis reform should look like, even if majorities agree that the law should be changed. And as pro-cannabis reform members from both sides dig their heels in on the importance of provisions that are close to their heart (and the heart of their base), it makes assembling that coalition impossible.
Here are the fault lines
Liberal Democrats and especially the party’s most progressive members are unwilling to support legislation that does not incorporate significant social equity and racial justice provisions into it. Their argument is a straightforward and convincing one: the War on Drugs was waged on the backs of Black Americans, Latinos, and indigenous populations, and reform should not proceed without a significant effort to right the wrongs of the past.
Moderate Republicans and libertarian members of the party see the issue from a market perspective. They believe government should get out of the way and let cannabis be treated as an agricultural commodity in which the business community and the free market—rather than government prohibition—should prevail. (It should be noted that most pro-cannabis Democrats and Republicans do agree on some restorative justice such as pardons and record expungement for non-violent cannabis offenders.)