The omnibus spending bill that Congress approved last week includes a rider aimed at blocking marijuana legalization in Washington, D.C. Whether it actually will do that is a matter of debate, and the way this provision was passed suggests that pot prohibitionists are in a weaker position than ever before.
The rider, introduced by Rep. Andy Harris (R-Md.), says "none of the funds contained in this Act may be used to enact any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance." House Appropriations Committee Chairman Hal Rogers (R-Ky.), another ardent drug warrior, claims this spending restriction "prohibits both federal and local funds from being used to implement a referendum legalizing recreational marijuana use in the District." But that is not quite accurate, since the rider refers to enactment, not implementation.
By contrast, an earlier version of the Harris rider dealt with spending to "enact or carry out" decriminalization or legalization of any Schedule I drug. Eleanor Holmes Norton, the District of Columbia's congressional delegate, says that difference could prove crucial, because Initiative 71, the D.C. ballot measure legalizing marijuana possession, home cultivation, and sharing, "was enacted when it was approved overwhelmingly by voters in November." The initiative's elimination of penalties for specified marijuana-related activities is "self-executing," Norton says, requiring no additional legislation by the D.C. Council or by Congress. In other words, the event Harris seeks to prevent has already happened.
Harris and his allies point out that Initiative 71 will not take effect until it survives congressional review, which does not begin until D.C. Council Chairman Phil Mendelson officially submits the measure to Congress. At that point, Congress has 30 legislative days to pass a joint resolution rejecting the initiative. If Congress fails to pass a resolution during the review period, the initiative takes effect automatically.
Since this process of submission and review entails some use of public money, wouldn't it be blocked by Harris' rider? Maybe not. There is a difference, after all, between enacting a measure and making it effective. A law passed this year might not take effect until next year, but that does not mean it was not enacted this year. The Harris rider only bars enactment of Initiative 71, Norton says, and it's too late for that.
That looks like a pretty strong argument to me, since the District of Columbia Home Rule Act says a ballot initiative "shall take effect" at the end of the review period unless a resolution of disapproval has been enacted by then. If Congress does pass a resolution and the president signs it, the resolution "shall be deemed to have repealed" the initiative. You cannot repeal a law that was never enacted. Although Harris claims his rider "prevents the ultimate enactment of the ballot initiative," that seems like a stretch. Lawyers at D.C.'s Office of the Attorney General are examining the question but have not reached any conclusions yet.
Bill Piper, director of national affairs at the Drug Policy Alliance (DPA), agrees with Norton's analysis. "While Initiative 71 won't take effect until after the Council transmits it to Congress in January and it goes through an administrative 30-day review period," he says, "it has very clearly already been enacted by the voters." DPA notes that Democratic leaders in the House, "including members who were part of the funding bill negotiations," have said "the D.C. rider allows Initiative 71 to stand."
If Norton is right, the Harris rider, which applies through next September, will not stop Initiative 71 from taking effect, although it will prevent the District from licensing and regulating marijuana businesses, since that would require new legislation. Because of restrictions on the legal changes that can be made by ballot measure in D.C., the initiative does not address commercial production and distribution. If it takes effect, homegrown marijuana will be the only legal source, so cannabis consumers who want to stay within the law but are not up to cultivating plants will have to cultivate friends who are.
Why did Harris weaken his rider by excising the reference to carrying out drug policy reforms? The answer, as reported by The Washington Times, is revealing:
Chris Meekins, Mr. Harris' spokesman, said the "carrying out" phrase cited by Ms. Norton was removed from this version in order to avoid confusion around whether the amendment would strike the city's current drug laws. Over the summer when the initial rider emerged, pro-pot activists countered that, if the city was blocked from carrying out its new marijuana decriminalization policies, marijuana would become legal as a result.
That earlier rider, attached to another spending bill, was aimed at reversing the District's decriminalization of marijuana, which changed possession of up to an ounce from a misdemeanor to a citable offense punishable by a $25 fine. The rider passed the House Appropriations Committee by a mainly party-line vote in June, but it was omitted from the final legislation because of resistance from Senate Democrats. At the time Harris was determined to stop the District from treating marijuana possession in a way he considered too lenient, which he warned would encourage teenagers to smoke pot. But now he has given up that battle. On Wednesday he told reporters that "decriminalization…is allowed under the omnibus language."
Harris also emphasized that he is not trying to interfere with D.C.'s medical marijuana law, which Congress blocked for more than a decade via a spending restriction similar to his rider. But broader legalization is unacceptable, Harris says, because it "will result in higher drug use among teens."
Marijuana reform activists were dismayed that Senate Democrats went along with Harris' attempt to override the will of D.C. voters, who approved Initiative 71 by a margin of more than 2 to 1. "They're basically overturning an election," says Nikolas Schiller, director of communications for the D.C. Cannabis Campaign. "I mean, why vote if you're going to nullify what we said?" On Tuesday afternoon, Senate Majority Leader Harry Reid (D-Nev.) declared that "the District of Columbia should do what they want to do." By Tuesday night, however, Reid had surrendered on that point, presumably in exchange for Republican concessions that were more important to him.
Still, reformers could view the rushed back-room dealing that inserted the Harris rider into a must-pass spending bill in the waning days of the 113th Congress as a hopeful sign. It suggests that Republicans were not eager to take up this issue next year, when they will control the Senate as well as the House. Even if stopping legalization in D.C. were a high priority for them, it is doubtful whether they could muster enough votes to pass a resolution of disapproval, let alone enough to overcome a likely veto by a president who opposes interfering with the District's marijuana policies. "House Republicans were only able to pass this D.C. rider by doing it behind closed doors," Piper says, "with no debate or transparency."
If they had chosen to challenge Initiative 71 after the new Congress convenes, Harris and his allies would have had to contend not only with Democrats who think D.C. should have more leeway to control its own affairs but with the growing ranks of Republicans who question the imposition of marijuana prohibition on jurisdictions that reject it. The same spending bill that includes the Harris rider, which aims to block marijuana reform, also includes an amendment that aims to prevent the feds from interfering with marijuana reform. The latter provision, introduced by Rep. Dana Rohrabacher (R-Calif.), prohibits the Justice Department from spending money to prevent D.C. or the states from "implementing…laws that authorize the use, distribution, possession, or cultivation of medical marijuana." The Rohrabacher amendment passed the House last May with support from 219 members, including 49 Republicans. A Senate version, co-sponsored by Rand Paul (R-Ky.) and Cory Booker (D-N.J.), was introduced in June but never got a vote.
Rohrabacher and Paul both have said Congress should not override D.C.'s marijuana reforms. Judging from the vote on Rohrabacher's amendment, they are not the only Republicans who take that position, which jibes with conservatives' general preference for local control.
Harris notes that "D.C.'s not a state," so it does not have the same autonomy under the Constitution as a state does. But the arguments for federalism—in particular, the idea that political decisions should be made at the lowest feasible level to facilitate citizen influence, familiarity with local conditions, policy experimentation, and competition among jurisdictions—apply to D.C. as well as the states, and those arguments resonate with many conservatives. As Rohrabacher notes, so do defenses of "individual liberties" and "limited government," which hardly count in favor of forcing D.C. to punish people for peaceful activities that violate no one's rights.
"It is disheartening and frustrating to learn that once again the District of Columbia is being used as a political pawn by the Congress," says D.C. Council Member David Grosso, author of a bill that would authorize licensing and regulation of marijuana growers and retailers. "To undermine the vote of the people—taxpayers—does not foster or promote the 'limited government' stance House Republicans claim they stand for; it's uninformed paternalistic meddling."
The divide reflected in the Harris and Rohrabacher riders pits venerable conservative principles against blind hatred of a plant. In light of polls indicating that most Americans oppose marijuana prohibition, which agenda represents a more promising future for the Republican Party?
This article originally appeared at Forbes.com.