ARTICLE BY: HILARY BRICKEN
I’ve been practicing corporate, transactional, and regulatory law in the marijuana industry for going on 10 years now. I’ve never understood exactly why folks get excited about, or even remotely interested, when various lifetime politicians in Congress push bills on the federal legalization/rescheduling of marijuana. Why? Because these bills notoriously go nowhere (for a number of what seem to be purely political reasons) and will continue to go nowhere, in my opinion, where marijuana (while extremely popular with most Americans and obviously with certain entire states) is still too politically hot to trust out-of-touch members of Congress to do anything meaningful about it, and especially now given that the nation’s priorities seem to revolve around dealing with COVID-19 (and rightly so).
The House’s planned floor vote in early September around the most recent federal marijuana legalization measure (the Marijuana Opportunity Reinvestment and Expungement Act (“MORE Act” (see the House version here, which was introduced last year)) is no different. While I’m glad to see members of Congress continue to try to chip away at the continued (failed) War on Drugs regarding cannabis, I’m honestly tired of seeing the fanfare attendant with these legalization bills. At the same time, my interest in these things is usually peaked when looking at what members of Congress are willing to push when it comes to nationwide legalization.
Yes, this upcoming vote is still significant and historic because neither chamber of Congress has ever voted on completely removing marijuana from the federal Controlled Substances Act (and the MORE Act is a bipartisan bill, too), but we all know where this is going–the Democratic-controlled House will likely pass the bill and the GOP-controlled Senate will very likely ignore it or shut it down. I also can’t ignore the fact that the bill’s Senate sponsor is Senator (and democratic vice president nominee) Kamala Harris who admittedly has a terrible record on prosecuting marijuana crimes from when she was the Attorney General of the State of California and is now in the past two and a half years miraculously behind supporting marijuana legalization culminating in a presidential election year. Pretty convenient.
What exactly would the MORE Act do? It completely removes marijuana from the federal Controlled Substances Act, decriminalizing/descheduling it altogether and eliminating criminal penalties for everyone in the commercial chain of production, distribution, and sales (which would also mean that the banking access woes and draconian impact of IRC 280E would be over). Right now, marijuana is a Schedule I controlled substance and illegal under federal law, making its home on schedule I next to LSD and heroin. The Act would also expunge marijuana criminal records dating back to May 1, 1971 because it’s retroactive. The Bureau of Labor Statistics is also charged under the Act with collecting and compiling a variety of data on marijuana businesses and their owners. The Act creates the Opportunity Trust Fund with various earmarks to the Attorney General and the Small Business Administration (SBA) (with the SBA allocations meant to support the Marijuana Opportunity Reinvestment and Expungement Act of 2019). A federal tax would also be imposed on marijuana products “manufactured in or imported into the United States . . . equal to 5 percent of the price for which sold.” Importantly, while the Act empowers the Feds to engage in rulemaking for a federal regulatory framework, states would still be in control of licensing, oversight, and enforcement within their borders (very similar to alcohol).