D.C. Council Cancels Hearing on Marijuana Regulation

The District's attorney general warns that further legalization would be illegal.


Racine campaign

Today the District of Columbia Council, which is proceeding with marijuana legalization despite objections from some members of Congress, planned to hold a hearing on the licensing, taxation, and regulation of cannabis growers and retailers. The Washington Post reports that the council abandoned that plan after Karl Racine, D.C.'s newly elected attorney general, warned that such a hearing would conflict with a spending restriction approved by Congress in December.

That rider, introduced by Rep. Andy Harris (R-Md.), bars the District from spending local or federal funds to "enact" legislation that reduces or eliminates penalties for marijuana offenses. Racine agrees that the Harris amendment does not block Initiative 71, which legalizes possession, sharing, and home cultivation, since the ballot measure was enacted before the rider took effect. But he says the rider prohibits the D.C. Council from going further by legalizing commercial production and distribution. 

In a letter he sent to the council last week, Racine said "we have concluded that [the Harris rider] should not prevent the District from using FY15 appropriated local funds to implement Initiative 71…because this initiative had already been enacted when the Appropriations Act became effective." But he added that the rider "directly and squarely prohibits" the use of those funds or federal money to "enact any measure that further legalizes marijuana." Racine said holding hearings on Council Member David Grosso's marijuana regulation bill, as the council planned, would "involve the expenditure of local funds to enact a measure legalizing marijuana." He noted that deliberately disregarding a congressional spending restriction could make D.C. officials and employees subjects to fines of up to $5,000 and prison sentences of up to two years under the Anti-Deficiency Act.

David Zvenyach, the D.C. Council's chief counsel, disagreed with Racine's reading of the law, arguing that the the District can legally talk about taxing and regulating marijuana as long as it does not actually approve a bill. D.C. Council Phil Mendelson ultimately decided not to chance it, announcing that he will instead convene an "informal roundtable discussion." In his letter, Racine said such a forum would not run afoul of the Harris rider.

Meanwhile, Initiative 71, which Mendelson sent to Congress for review on January 13, takes effect after 30 legislative days unless a joint resolution of approval is enacted before then (which is not going to happen). According to the D.C. Cannabis Campaign, which sponsored the initiative, the review period expires "approximately February 26." (The exact date depends on when congressional leaders say the initiative was officially received, which they do not necessarily announce in advance.) By the end of the month, then, Washingtonians 21 or older will no longer face local penalties for possessing up to two ounces of marijuana outside their homes, sharing up to an ounce at a time with other adults, or growing up to six plants (no more than three of which are mature at any given time) at home, where they will also be allowed to keep whatever those plants produce.

Further marijuana legalization does seem to be blocked by the Harris rider (at least until the end of this fiscal year), although there may be a loophole. Walter Smith, executive director of the D.C. Appleseed Center for Law & Justice, notes that the rider applies only to local money appropriated for the current fiscal year. He suggests that the District could draw on its reserve funds to cover whatever costs are involved in enacting a marijuana bill. Furthermore, the Harris rider does not forbid the District to carry out a bill once it has been enacted, so the money needed to create the regulatory system envisioned by Grosso could come from fiscal year 2015 funds.

President Obama has said Congress should not interfere with D.C.'s marijuana policies, and last Friday his drug czar agreed. "As a resident of the District, I might not agree about legalization, but I do agree with our own ability to spend our own money the way that we want to do that," said Michael Botticelli, director of the Office of National Drug Control Policy, responding to a question from Dan Riffle of the Marijuana Policy Project. "The president…was very clear that the District should stick to its home rule."