Eighteen states containing 40 percent of Americans have now fully legalized marijuana, but the federal prohibition on cannabis still hangs over the country like a noxious, non-psychoactive cloud. However, a renewed push in Congress could finally end the government's war on weed.
Last year, the House of Representatives voted in a historic first to end the federal prohibition on marijuana. That bill, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, failed to pass the Republican-controlled Senate, but now that Democrats hold a slim majority in both chambers of Congress, they are trying once again.
In the House, Rep. Jerry Nadler (D–N.Y.), who chairs the Judiciary Committee, plans to reintroduce the bill, which would remove cannabis from the Controlled Substances Act and eliminate federal criminal penalties for cultivation, distribution, and possession.
The legislation would also automatically expunge federal marijuana convictions and require judges to vacate the sentences of those currently incarcerated for federal marijuana offenses on request. It would also end the ban on federal public benefits to those with marijuana convictions.
Meanwhile, Sen. Chuck Schumer (D–N.Y.), along with Sens. Cory Booker (D–N.J.) and Ron Wyden (D–Ore.), announced they will pursue comprehensive marijuana reform this year.
"The War on Drugs has been a war on people—particularly people of color," the senators said in a press release. "Ending the federal marijuana prohibition is necessary to right the wrongs of this failed war and end decades of harm inflicted on communities of color across the country."
That bill has not been introduced yet, but in an interview with Politico this month, Schumer said Democrat leadership in Congress will move forward with legalization with or without the support of President Joe Biden.
"I am personally for legalization," Schumer said. "And the bill that we'll be introducing is headed in that direction."
Biden supports decriminalization but not full legalization, a position he hasn't budged on even as more and more states and Democratic leadership in Congress—not exactly a spry, young group—leave him behind.
"He spoke about this on the campaign," White House press secretary Jen Psaki said in response to a question about marijuana legalization. "He believes in decriminalizing the use of marijuana, but his position has not changed."
Maritza Perez, national affairs director for the Drug Policy Alliance, predicts the MORE Act will pass the House again, but it will be a much tougher road for legalization in the Senate.
"The Senate will present a challenge because there aren't many vehicles where we can get this done with a simple majority," says Perez. "We're probably going to need 60 votes, which means we're going to have to get all the Democrats plus 10 Republicans. I think that will be very challenging given the polarized Congress that we have."
Perez says the bill is also expected to have provisions intended to funnel tax revenues back into communities that were ravaged by the drug war. These sort of racial justice provisions, as civil liberties groups call them, have become more and more common in legalization bills, and progressive groups consider them make-or-break for their support.
As Reason's Jacob Sullum summarized last year, the MORE Act would also:
Impose a 5 percent federal tax on cannabis products, rising to 6 percent after two years, 7 percent after three years, and 8 percent after four years. The revenue would be assigned to drug treatment, 'services for individuals adversely impacted by the War on Drugs,' loans for marijuana businesses owned by 'socially and economically disadvantaged individuals,' and grants aimed at reducing 'barriers to cannabis licensing and employment for individuals adversely impacted by the War on Drugs.'
Congress is also once again considering legislation that would normalize banking for the legal marijuana industry, which almost exclusively operates in cash because of its lack of access to financial institutions. In March, Rep. Ed Perlmutter (D–Colo.) reintroduced the Secure and Fair Enforcement (SAFE) Banking Act. The legislation would stop banks from being penalized by federal regulators for servicing legal marijuana businesses.
Democrats' razor-thin majority in the Senate means the passage of these bills is anything but assured, but the chance to end the federal criminalization of marijuana and let states decide for themselves is closer than ever.