Senate Majority Leader Chuck Schumer (D–N.Y.) reportedly has been working for months to generate bipartisan support in his chamber for repealing the federal ban on marijuana. If so, there is little evidence of that effort in the draft legislation that he unveiled today, which is larded with new taxes, regulations, and spending programs that seem designed to alienate Republicans who might be inclined to support a cleaner bill on federalist grounds.
Schumer is presenting the Cannabis Administration and Opportunity Act, which is also backed by Sens. Cory Booker (D–N.J.) and Ron Wyden (D–Ore.), as a "discussion draft," inviting comments that presumably will shape the legislation as it is officially introduced. But the starting point for this discussion is not promising if the goal is to actually end the federal war on weed.
The first warning sign is the bill's name, which tells you that its sponsors are not content to eliminate the untenable conflict between the Controlled Substances Act (CSA), which prohibits marijuana in every context except federally approved research, and the laws of the 36 states that allow medical or recreational use. The next red flag is the bill's length, which, at 163 pages, is nearly twice as long as the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, which the Democrat-controlled House approved last December with support from just a handful of Republicans.
At 87 pages, the MORE Act was already chock-full of unnecessarily contentious provisions, and the Schumer bill doubles down on that approach. By comparison, the Respect State Marijuana Laws Act, which former Rep. Dana Rohrabacher (R–Calif.) first introduced in 2013, consisted of a single sentence that would have made the federal ban on marijuana inapplicable to people acting in compliance with state law. A bill that simply removed marijuana from the CSA's schedules of controlled substances would likewise be consistent with federalism, and it would be similarly brief, even allowing for conforming amendments.
The good elements of Schumer et al.'s bill include descheduling marijuana, automatic expungement of federal criminal records related to nonviolent marijuana offenses, and eliminating discrimination against cannabis consumers in immigration law and the distribution of federal benefits. The one notable concession to leery Republicans is a "states' rights" provision that prohibits the importation of marijuana into states where it remains illegal. But in many other respects, the bill either overrides state policy or adds another layer of licensing, regulation, and taxation.
Under the Cannabis Administration and Opportunity Act, state-licensed marijuana businesses, which already are regulated by state and local governments, would also be supervised by the Food and Drug Administration, the Treasury Department's Alcohol and Tobacco Tax and Trade Bureau, and the Justice Department's Bureau of Alcohol, Tobacco, Firearms, and Explosives. The bill envisions detailed rules dealing with production, storage, transportation, packaging, labeling, advertising, and sales. It establishes a minimum national purchase age of 21, meaning that states would not be free to set a lower age.
The bill imposes a federal excise tax on marijuana starting at 10 percent and rising to 25 percent by the fifth year, which would be in addition to frequently hefty state and local taxes. New York, for example, plans to collect a THC-based excise tax from recreational marijuana suppliers. That might amount to somewhere between 5 percent and 30 percent of the retail price, depending on the type of product and its THC content. New York is also imposing a 13 percent special sales tax, although it will exempt marijuana products from general sales taxes.* California collects a cultivation tax and imposes a 15 percent excise tax at retail, in addition to general sales taxes of up to 8.25 percent. According to Leafly, "a customer may pay anywhere from 23% to 38% in tax." Washington collects a 37 percent marijuana tax on retail sales, on top of general sales taxes as high as 10.5 percent. Schumer's bill would add to the burden that such taxes impose on consumers and make it even harder for legal suppliers to compete with the black market.
Like the MORE Act, the Cannabis Administration and Opportunity Act would use revenue from the federal marijuana tax to create new spending programs. The Community Reinvestment Grant Program would "fund nonprofits that provide services to individuals adversely impacted by the War on Drugs, such as job training, reentry services, and legal aid, among other services." The Cannabis Opportunity Program would "provide funding to eligible states and localities to make loans to assist small businesses in the cannabis industry owned by socially and economically disadvantaged individuals." The Equitable Licensing Grant Program would "provide funding to eligible states and localities to implement cannabis licensing programs that minimize barriers for individuals adversely affected by the War on Drugs."
As those proposals suggest, Schumer, Booker, and Wyden emphasize the "racial justice" rationale for legalizing marijuana. "The War on Drugs has been a war on people—particularly people of color," they say in the opening lines of their bill summary. "The Cannabis Administration and Opportunity Act aims to end the decades of harm inflicted on communities of color by removing cannabis from the federal list of controlled substances and empowering states to implement their own cannabis laws."
There is no denying that the war on weed has racist roots and continues to have a disproportionate impact on African Americans, who are nearly four times as likely as whites to be arrested for marijuana possession even though they are only slightly more likely to be cannabis consumers. But while presenting marijuana legalization as first and foremost a remedy for racial discrimination may appeal to the Democratic base, it is apt to turn off Republicans who are suspicious of race-based policy arguments. Congress should repeal the federal ban on marijuana because that policy is unjust, irrational, and inconsistent with federalist principles. While the fact that it also imposes a special burden on racial minorities is worth pointing out, ending marijuana prohibition would be a moral imperative even if that were not true.
Politico calls Schumer's bill a "long-shot bid for legal weed," and it is not hard to see why. The Senate is evenly divided between Democrats and Republicans, with Democratic control depending on Vice President Kamala Harris' tie-breaking vote. To overcome a legislative filibuster, Democrats who support legalization have to attract at least 10 Republican allies, and probably more. Politico notes that "some Senate Democrats," including New Hampshire Sen. Jeanne Shaheen, "have voiced opposition to legalizing marijuana, and no Republicans have come out to replace the dubious Democrats regardless of local support."
Even Republicans who represent states that have legalized marijuana for medical or recreational use are not necessarily on board. "GOP Sens. Mike Rounds of South Dakota and Steve Daines of Montana, who both represent states that have embraced recreational weed, remain opposed to federal legalization," Politico notes. "But others, such as Sens. Kevin Cramer (N.D.) and Lisa Murkowski (Alaska), have said they're open to discussing federal reform that still allows states to choose their own policies—the needle Schumer, Booker and Wyden will likely have to thread."
They are not off to a good start, since their proposed bill, except for promising to support states that keep marijuana illegal, does not actually allow states to "choose their own policies." Instead, it imposes a new layer of federal policies that either trump or complicate the choices that state legislators and regulators have made.
Even leaving aside President Joe Biden's resistance to legalization, persuading 60 senators to end pot prohibition was already an iffy proposition. Schumer et al.'s racially focused rhetoric and overly prescriptive approach will only make that quest more quixotic. Democrats need to decide whether they actually want to legalize marijuana—a change that more than two-thirds of Americans favor—or just want credit for seeming to try while scoring political points by blaming Republicans for their failure.
*CORRECTION: The original version of this post erroneously stated that general sales taxes will apply to recreational marijuana in New York.