Marijuana

Chuck Schumer Says He Wants To Legalize Marijuana. His Bill Suggests Otherwise.

The Senate majority leader's racial rhetoric and overly prescriptive approach make an already iffy effort even more quixotic.

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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.

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  1. The entire draft of my bill:

    We hereby de-scheduled marijuana. States you decide what you want to do. IRS tax them at the same rate as any other retailer.

    That took me all of 1 minute.

    1. I guarantee you it will take a lot longer than 1 minute to get that passed.

      1. Well yeah, hundreds of reps have to say Aye or Nay and then 100 senators do the same. I’d budget 30 minutes.

        But yeah that would make way too much sense for DC.

  2. Of course, just admitting that Marijuana has legitimate medical use, and therefore cannot legally be on schedule one anyway is off the table, right?
    I mean, no regulations, no taxes, no nothing but following existing law is so far out in left field (sarc), that it is impossible to consider.

    1. In that case, they’d probably just move it to schedule 2. Which is also an absurd classification, but a bit more plausible.

    1. Our government is insane.

      Just kill it dead.

  3. There are a lot of younger Democrat voters who want marijuana legalized. The Democrats are also keen on having a say over the population’s vices, especially those that have bad effects on health. This bill reflects the tension between the hedonism of the Democrats voting base and the authoritarianism of their political class.

  4. Goody. A whole new bureaucracy. Just what we need.

  5. Legalizing weed would be giving up control.
    They can’t do that even if there’s a huge benefit to themselves.

  6. Well at least you’re a bit skeptical now. That’s a start.

  7. Of course they cant do anything, even when their base wants it overwhelmingly, without being statist authoritarian fucks.

    “This would be great for black people who have been disproportionately affected by marijuana laws, and our base wants it, most of the country wants it…but how can we squeeze money out of these idiot taxpayers while benevolently allowing them a personal freedom”

    1. I love the part about making licenses prohibitively expensive and then having to subsidize minority growers so they can afford the licenses.

  8. Many people are opposed to legal geef because they’ve invested a lifetime of blood and sweat into saying how dangerous it was. They’ll look pretty dumb proved otherwise.
    Same with the Lost Causers who still think Iraq had a WMD capability, the opposition to gay marriage on grounds it will tear apart the family, the stab-in-the-back by hippies during the Vietnam War, etc. — they don’t want to be shown that they were dead wrong.

    1. The family is doing fine, and as for the Vietnam war? We actually won that one!

  9. Forbid use of federal funds to enforce federal canabis laws in states that have legalized medical or recreational canabis.
    That way in can get thru the senate reconciliation process with a simple majority. Worry about the rest later.

  10. But the starting point for this discussion is not promising if the goal is to actually end the federal war on weed.

    The goal is for Schumer to stay in power.

  11. Democrats can’t even help an old lady cross the street without first passing a “Help Old Ladies Cross the Street Act” that’s a thin disguise for more taxing and spending. To be fair Republicans would be right behind with their own “Aiding Elderly Road Crossing Act” proposal that was only spend 90% as with half the taxes but twice the borrowing.

    The problem is the politicians themselves. Drown them all. Cleaner than woodchipping them all.

    1. Drowning that many people would dirty up the Potomac (sp?).

  12. A comprehensive tax and control scheme for a plant so resilient it can easily grow to 6 feet in a closet with nothing but a single grow lamp. That is not going to end well. So I expect they will get it enacted.

  13. “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.”

    Gosh, I am on tenterhooks waiting to find out which they choose!

    1. The Democrats want to make the federal government California. You know the state that has to subsidize it’s legal pot industry because it cannot make a profit between the regulations and the taxes.

      1. Who buys their weed legally?

        The whole aparatus Schumer wants in place will institute enough regulation that the black market will thrive. The whole reason certain communities are massively affected by marijuana laws now is the existence of the black market fostered via prohibition.

        Mexican cartels love that. Gangs will fight over turf to deal still. People will be in prison for violence and drug charges, except they’ll be tax evasion charges. Or whatever.

  14. Define – “Individuals adversely affected by the War on Drugs.”

    Does that include the girlfriend of the dealer who went to jail?

  15. “Chucky” is just following the leads of many of the States, are saying: Sure, you can smoke pot, as long as we make YUGE profits for doing exactly nothing.

  16. First let’s all celebrate the fact that we are even discussing a bill like this and acknowledge that it would not even be proposed 5 years ago. Second let’s acknowledge that there are real questions to be answered. Are there age limits? What about people convicted before legalization? How do we handle this from sales tax basis, same as other things or more like alcohol? Finally with the Congress so divided you get one chance at things so you spend too much time trying to be perfect. It would be better to pass a bill and then adjust as necessary in the future, but good luck on the adjustments.

    All that said it would be nice to get a cleaner bill.

    1. Yes, be grateful for the stale crumbs tossed on the floor.

    2. Congress doesn’t need to answer any of those questions, except convictions (to which the correct answer is: expunge them). The states can handle all those other details. In fact, Congress arguably doesn’t even have the power to handle most of those things. (The war on drugs itself is probably unconstitutional – it should have always been a state issue).

      1. Why expunge?

        Assholes broke the law, knowing it was the law, even if the law was disagreeable to you.

        If murder was legalized, should we expunge the records of currently incarcerated murderers? Fuck them.

  17. This is exactly what New Jersey’s “legalization” bill did – create a state-sponsored cartel in which those with political connections get licensed to sell a heavily-taxed product, with the Democrats who control the state government funneling the money back to those constituencies who disproportionately vote Democrat.

    1. Pennsylvania did basically the same thing.

    2. Cindy McCain’s family agrees weed like beer should also only be handled by “responsible” parties. You know someone with a pill addiction.

  18. (D) will never give up the arrest power without exchange for similar or weightier arrest power

  19. like any other government regulation this simply strengthens black market weed due to the bill containing a burdensome tax of 10% rising to 25%. Add in that some of the states tax at 15% to 20% or more.

    Great work, gubment.

    Act like you are helping but you intentionally make something too costly for some or just costly enough that those that have plenty might not take your legal route and stick with black market weed.

    Gubment, ever wonder why there is still a strong black market for weed in California and other states that legalized it? You tax the shit out of it. The producers are taxed and over regulated. Then the retail shops have to hammer the customers for taxes again.

  20. This bill would only aggravate the already overly burdensome taxation and regulation of the states’ legally regulated markets. With the new federal tax thrown in, the total tax rate on legal marijuana in California would be over 60%, a bootlegger’s dream. Any new federal taxes and regulations should apply only to interstate commerce. Otherwise, the feds should butt out of the intrastate cannabis market and simply recognize the legitimacy of cannabis produced and consumed locally in accordance with state law.

  21. “CSA” Confederate States of America is what I thought author was talking about for name?

    1. Cancel him!

  22. Schumer is a putz.

    1. No, he’s a shmuck.

      Schmucky Schumer.

      Smaller, but still a dick.

  23. Cannabis products are known to be a healthier alternative to tranquilizer use/abuse and therefor a potential threat to pharmaceutical industry profits. Other than to pander to big pharma, which logically loves THC-consumption legal obstacles just fine, there was/is no good reason (morally, ethically or national interest) to maintain THC consumption’s criminal status. On the contrary, there was/is good reason to legalize it. But political hypocrisies too often prevail.

    As Canada has legalized pot use, I recall a then-president Bill Clinton deciding against fully legalizing (i.e. on a federal level) cannabis consumption after having championed it (or, at the very least, its decriminalization) prior to his election. Much worse, as president he greatly ramped up the ‘war on drugs’ — including against personal users, which needlessly unjustly destroyed lives — at the very same time he made it easier for bankers to become richer.

    I believe the pre-election Clinton had greatly overestimated a U.S. president’s ability to resist big corporate and power interests.

  24. This is why I’ve always preferred “decriminalization” rather than “legalization”. It may seem to be pedantic or splitting hairs or parsing words, but legalization implies passing more laws while decriminalization implies removing existing laws. But then I’m one of those whacky libertarian types and we know how that goes over anymore.

    1. I support the maiming of people who carry or use pot outside their bedrooms.

  25. Schumer doesn’t want federally legal weed. Just look at his history as a drug warrior. This bill is designed not to pass while portraying Republicans as anti-weed to informationless dope addled voters.

    Just get the federal government and UN out of the way and the states will follow.

  26. If the guy worked for the cartels and was tasked with writing a law to ensure illegal marijuana stayed in business, could he have written a worse legalization bill?

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