The Harris-Nadler Marijuana Bill Goes Further Than Others in Ways Good and Bad

The MORE Act combines laudably broad legalization and expungement provisions with taxes and spending that may alienate potential Republican allies.


A bill introduced today by Sen. Kamala Harris (D-Calif.) and Rep. Jerrold Nadler (D-N.Y.) would repeal the federal ban on marijuana, expunge the records of people who have been convicted of violating it, and impose a 5 percent sales tax on cannabis products to fund an Opportunity Trust Fund. Well, two out of three ain't bad.

"Times have changed," Harris says. So has Harris, a latecomer to marijuana reform who did not come out in favor of legalization until the beginning of 2018.

But today Harris, perhaps after consulting the latest polls, is confident that "marijuana should not be a crime." Rather, she says, "We need to start regulating marijuana, and expunge marijuana convictions from the records of millions of Americans so they can get on with their lives. As marijuana becomes legal across the country, we must make sure everyone—especially communities of color that have been disproportionately impacted by the War on Drugs—has a real opportunity to participate in this growing industry."

The Harris-Nadler bill is superior to other pieces of marijuana reform legislation in two important respects. It completely deschedules marijuana rather than moving it to a lower schedule or making exceptions to the ban for state-legal conduct, and it seeks to lift the burdens that prohibition has imposed on people caught growing, distributing, or possessing cannabis, a vital project that too often has been treated as an afterthought. But the bill also includes a new tax and new spending intended to promote "racial and economic justice." Those provisions detract from the main purpose of the legislation and will make it harder to attract support from Republicans.

The Marijuana Opportunity Reinvestment and Expungement (MORE) Act would remove cannabis from the schedules of the Controlled Substances Act and make that change retroactive, applying to "any offense committed, case pending, [or] conviction entered…before, on, or after the date of enactment of this Act." It instructs federal courts to expunge records related to marijuana arrests and convictions. People currently serving sentences for marijuana offenses could ask courts to lift those sentences and expunge their records, which the courts "shall" do.

An expunged arrest or conviction would be removed from "each official index or public record," and the beneficiary would be legally authorized to treat the arrest or conviction "as if it never occurred." He would be "immune from any civil or criminal penalties related to perjury, false swearing, or false statements, for a failure to disclose such arrest, conviction, or adjudication." The MORE Act also says cannabis should not be treated as a controlled substance under immigration law, meaning people could not be deported based on marijuana offenses, and bars federal agencies from denying benefits or security clearances based on cannabis consumption.

The MORE Act's expungement provisions are broader than the corresponding language in the bill that one of Harris' rivals for the Democratic presidential nomination, Sen. Cory Booker (N.J.), reintroduced in February. While Booker's Marijuana Justice Act would require expungement of records related to "marijuana use or possession offense[s]," the MORE Act also covers cultivation and distribution. (Booker is a cosponsor of Harris' bill, and so are several other Democratic presidential contenders.) Both bills seem to raise similar constitutional issues, since they require courts to reach particular decisions in closed cases without new motions from either side.

Leaving that point aside, the goal here is important. It is clearly unjust for people to continue paying the long-lasting ancillary penalties associated with an arrest or conviction after legislators, backed by most Americans, decide their actions should not have been treated as crimes in the first place.

"At a point in time when simultaneously one person could have their life ruined in New York for the exact same action that makes someone in California a millionaire, now more than ever we must end the federal prohibition of marijuana," said Justin Strekal, political director at the National Organization for the Reform of Marijuana Laws (NORML). "The Marijuana Opportunity Reinvestment and Expungement Act embodies the need to legalize cannabis and restore the rights of those who have suffered under the cruel and failed policy of criminalization."

Unfortunately, the MORE Act does not stop there. It would create a Cannabis Justice Office within the Department of Justice and charge it with overseeing a Community Reinvestment Grant Program funded by the new marijuana tax. Grants would go to providers of "services for individuals most adversely impacted by the War on Drugs," including job training, reentry services, legal aid, literacy programs, health education programs, "youth recreation or mentoring programs," and "substance use services."

There would also be a Cannabis Opportunity Program for loans to small marijuana businesses "owned and controlled by socially and economically disadvantaged individuals," plus an Equitable Licensing Program for grants to state and local programs that aim to "minimize barriers to cannabis licensing and employment for individuals most adversely impacted by the War on Drugs." Grantees would have to meet several requirements, including "a cannabis licensing board that is reflective of the racial, ethnic, economic, and gender composition of the State or locality."

As Harris emphasizes, marijuana prohibition has had a disproportionate impact on minority groups, which means much of this granting and lending will look a lot like race-based affirmative action. If that does not raise the hackles of potential Republican allies who might otherwise be sympathetic on federalist grounds, tying marijuana reform to a new tax and new spending programs probably will. At a congressional hearing earlier this month, Rep. Matt Gaetz (R-Fla.) plausibly worried that "concerns over how far to go on some of the restorative elements in our policy could divide our movement," with the result that "we don't get anything done." While Gaetz himself has nevertheless signed on as a cosponsor of the MORE Act, so far no other Republican in either house has joined him.

Rather than switching from one marijuana boondoggle (prohibition) to a bunch of new marijuana boondoggles while trying to steer the cannabis industry toward "racial and economic justice," why not just pay reparations directly to individuals who have been hurt by the war on weed? And instead of funding that compensation by taxing cannabis consumers, who are hardly to blame for the injustices inflicted by pot prohibition, why not deduct the money from the existing drug-war budget? That might also provoke Republican opposition, but it least it would make a kind of sense.

NEXT: E.U. Regulators Can't Detect the Gene-Edited Crops They Banned

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  1. I wonder how many people are charged with federal crimes for simple possession?

  2. >>>We need to start regulating marijuana, and expunge marijuana convictions from the records of millions of Americans

    probably a fair exchange considering b) is never going to happen w/o a)

  3. “marijuana should not be a crime.” – – true
    “We need to start regulating marijuana” – – false
    “we need to make a new tax” – – false

    Actually, all that is necessary is to remove it from schedule one, as required by current federal law based on it having verified medicinal uses. That gets rid of all the drug war funding bullshit, and leaves the states in control. Of course, leaving the states n contorl is not a democrat party plank, hence the new tax, new federal bureaucracy, and all her posturing.

    1. Marijuana should not be a crime, unless you grow, transport, distribute, buy, or sell it without having the appropriate license and paying the appropriate taxes, then its totally a crime

    2. Once again, another layer of government is turning it’s greedy eyes towards the cannabis industry. The black market is so much better.

      Goddamn Nadler, and Goddamn the democrats.

  4. goes further

    This is a pet peeve of mine and even some dictionaries and the whole country of the UK disagrees with me, but farther and further are not the same word and shouldn’t be. You go farther. Farther is more far. Further is to a greater degree or extent. You can have further information or you can further your education or you can explain further. The words are related in a way, but should not be used interchangeably.

    1. >>>UK disagrees with me

      means you’re further correct.

  5. I share the reservations Sullum notes here – and especially like his idea of funding restorative measures using the Drug War budget instead of new taxes – but on the balance this would constitute a drastic improvement over the current federal laws.

    At a certain point reform-minded legislators need to stop quibbling about the margins and get together on the big picture of de-scheduling ASAP. I’ll support anyone from either party who signs on to this.

    1. Federal decontrol could be done administratively sincerely, since they truly can say this stuff’s too safe to justify any of the controls by the parameters they’ve historically used.

  6. …and bars federal agencies from denying benefits or security clearances based on cannabis consumption.

    Never thought I would see that. Probably won’t, but it’s good that it’s being considered.

  7. Why jail people for possession when you can jail them for tax avoidance.

  8. Both bills seem to raise similar constitutional issues, since they require courts to reach particular decisions in closed cases without new motions from either side.

    Yes, there IS ONE serious Constitutional issue, but I don’t see a word about it here, and rarely elswhere.
    READ the Constitution, nowhere in there are FedGof allowed any authority to regulate, restrict, outlaw, “schedule”, or any other action relating to what we do or do not put into our bodies. Simply NOT in FedGov’s bailiwick.

    That being the case, there never should have been a need for this proposed law, and certainly never should have allowed duPont’s laws banning the cutivation production, use, of any hemp or cannabis products.

    Further, since the “Controlled Substances Act” is contra the US Constitution, it is not law at all, is null, void, moot, of no effect, and thus anyone charged, convicted, recorded,, punished for, any involvement with the substance has committed no crime, must face no penalty, and should have no record of any related activity. Any such records of history should not exist, and should be destroyed anyway.

    THAT is the real constitutinal issue here.

  9. She has the first two parts right… but there is a simpler way to do it. Simply repeal the Controlled Substances Act, It never really was law anyway as it is contrary to the Constitution. Thus, decriminalising it AND removing any stigma, mpuonishment, etc, for those who have been involved in it are right things.

    But then she completely blows it….. with the tax. The first parts are fine. The new nanny state projects she wants to include are bogus. Leave that part out, and press on with the rest.

  10. I agree that taxes, regulations, and another bullshit bureaucracy isn’t good. But if literally having less people put in cages for a victimless crime isn’t a good time for libertarians to be pragmatic, then we’re fucked.

    I live in Michigan and had this argument with a friend of mine last year before it was legalized here. He was into MMA before most of us ever heard of it, and ended up needing neck surgery, so he’s been part of the medical marijuana scene from the beginning. He would bring up logical, well thought out arguments about the specifics of the law that was passed here. And I would politely tell him I couldn’t care less. Less nonviolent people are in cages, and that’s a good thing.

    And even if weed was just made legal straight up, who really thinks the regulations and taxes wouldn’t follow anyway in time?

    1. His arguments were against.

  11. LIbertarian’s love legalization of drugs. The reasons why mostly socialist democratic morons want drugs (marijuana) legalized is tax money, clean and simple. They could give a crap about the social issues and medical costs (in the future.)

  12. I could get behind this if the new spending were entirely funded by the new tax. That doesn’t bother me, because the tax money wouldn’t be there if the weed were still illegal. People would still have the option of being cannabis criminals by not paying the tax, so they’re not losing anything vs. the status quo.

  13. Leaving that point aside, the goal here is important. It is clearly unjust for people to continue paying the long-lasting ancillary penalties associated with an arrest or conviction after legislators, backed by most Americans, decide their actions should not have been treated as crimes in the first place.

    How is it “clearly unjust”? Prohibition of marijuana may or may not be good public policy, but those laws were properly enacted, had a rational basis, and people made a deliberate choice to violate them. We live in a nation of laws right now, and the implicit social arrangement among citizens is that we obey those laws even if we disagree with them.

    So, I don’t think it’s “unjust” to keep people in prison for clearly violating the law. You might still argue that it is good public policy to expunge those convictions (and I might even agree), but an argument based on justice just isn’t going to fly.

  14. Who gives a shit about the just/unjust question?

    Sullum is diving deeper than he needs to in order to make his de-scheduling argument.

    The goal is to get rid of the CSA, and all past and current convictions and statuses associated with it — period, end, stop.

  15. […] a Libertarian publication reports, the Harris-Nadler bill takes legalization and commercialization much further than any other […]

  16. @Robert: “the tax money wouldn’t be there if the weed were still illegal.”

    Don’t tell the politicians this, but legalizing and taxing MJ at such a low level will result in a net loss of tax revenue. Most people are not going to use _more_ drugs because of legalization. They are going to _substitute_ pot for other drugs, mainly legal and heavily taxed alcohol. To get more tax revenue from legalization would require taxes so high that a black market continues to exist, just like there are still moonshiners 86 years after alcohol was legalized and taxed, and like there are cigarette bootleggers where there are big differences in taxes across a state line.

    I consider legalization and a slight decrease in tax revenues a win-win. But losing alcohol excise tax revenue from the general fund, while a _new_ tax is earmarked for a new nanny-state program is a win-win-lose. Worse, in a few years it will become win-lose-lose when politicians increase the income tax or other taxes to make up the loss to the general revenue. So let’s hope the Senate will strip off the nanny-state provisions, leave the tax (with an exemption for non-commercial growers) to go to general revenue, pass the bill, and send it back to the House.

  17. JW: The law was unjust in the first place. It was first enacted in the 1930’s in a spasm of racism, and retained against all the scientific evidence for over half a century, because Nixon hated hippies. And there never has been a sound Constitutional basis for a federal ban on any product (in 1787, “regulate it” meant “make it work well”, not “make it stop”), nor for federal regulation of a particular item before it is sold commercially and across state lines.

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