Will Congress Manage To Pass Marijuana Reform During the Lame-Duck Session?

Legalization is unlikely in the foreseeable future, but banking reform and expungement could be feasible.


According to Gallup poll results released yesterday, 68 percent of Americans think marijuana should be legal—the same level of support that Gallup reported in 2020 and 2021. "The only place where cannabis reform is unpopular is here in the halls of Congress," Rep. Nancy Mace (R–S.C.) complained at a congressional hearing on "cannabis decriminalization" yesterday. During an interview on the Fox Business show Kennedy last night, Mace, who introduced a legalization bill last fall, sounded a more optimistic note, saying, "This is an issue where we can really come together."

Is it? That depends on what we mean by this. Congress won't repeal the federal ban on marijuana anytime soon. But it seems possible that more modest changes, such as cannabis banking reform and expungement of marijuana-related criminal records, could win enough bipartisan support to pass during the current lame-duck session.

"At a time of record public support for legalization and when the majority of states regulate cannabis use, it makes no sense from a political, fiscal, or cultural perspective for Congress to try to put this genie back in the bottle or to continue to place its collective head in the sand," Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, said at yesterday's hearing, which was convened by the House Oversight and Reform Committee's Subcommittee on Civil Rights and Civil Liberties. "It is time for the federal government to end its nearly century-long experiment with cannabis prohibition."

Republican members of Congress generally do not agree, at least publicly. The Democrat-controlled House has twice approved bills that would have removed marijuana from the federal list of "controlled substances." But that sort of fundamental reform has never attracted enough Republican support in the Senate to overcome a filibuster, where Democrats currently hold just 50 seats.

The situation in the Senate will remain essentially unchanged next session, when Democrats will hold 51 seats at most, depending on the outcome of the Georgia runoff. Meanwhile, Republicans will control the House, making it unlikely that legalization could win approval there. And even if there were enough Republican votes to legalize marijuana, President Joe Biden opposes that step, notwithstanding all his talk about the injustice of the war on weed.

Biden is an (almost) octogenarian who for decades was keen to show that Democrats could be even tougher on drugs than Republicans. Despite his avowed transformation from a gung-ho drug warrior into a criminal justice reformer, old habits die hard. But while Biden's continued support for pot prohibition makes psychological sense, it does not make political sense when more than two-thirds of Americans, including 81 percent of Democrats, think he is wrong.

Republican resistance to federal legalization is less surprising but still a bit of a puzzle. Based on Gallup data for 2018 to 2022, 70 percent of independents, 51 percent of Republicans, and 49 percent of conservatives support legalization. That suggests there should be enough wiggle room for 10 Republican senators to agree, especially since maintaining the federal ban is inconsistent with their party's avowed support for state autonomy.

Thirty-seven states recognize cannabis as a medicine, and 21 also have legalized recreational use. Twenty-five Republican senators represent states in the first group, while six represent states in the second. When so many states have rejected pot prohibition, classifying all marijuana suppliers as federal felons is an obvious affront to federalist principles.

So far those principles have proven no match for the anti-pot instincts of most Republican legislators. But even without descheduling cannabis, Congress can ameliorate the untenable conflict between state and federal marijuana laws. It can also deliver on Biden's promise to expunge the records of people who were convicted of low-level marijuana offenses under federal law and maybe even address the lingering impact of federal felony convictions for growing or selling cannabis.

Bipartisan House majorities have repeatedly approved the SAFE Banking Act, which would allow financial institutions to serve state-licensed marijuana businesses without worrying about criminal, civil, or regulatory penalties. That reform, which also has bipartisan support in the Senate, would address the potentially deadly robbery threat that such businesses face when they are forced to rely heavily on cash. But until now, the SAFE Banking Act has been blocked in the Senate by Majority Leader Chuck Schumer (D–N.Y.), who insisted that his own legalization bill take priority, even though that bill was clearly doomed.

In August, Sen. Cory Booker (D–N.J.), who co-sponsored Schumer's legalization bill, predicted that the Senate would consider an enhanced version of the SAFE Banking Act, dubbed "SAFE Plus," during the lame-duck session. In addition to cannabis banking, that bill is expected to address expungement and the V.A. health care system, which currently does not cover medical marijuana or even allow doctors to recommend it.

Biden's recent mass pardon of low-level marijuana offenders applied only to people convicted of simple possession, did not free any current prisoners, and did not address the ancillary penalties associated with marijuana records, such as difficulty finding housing or employment. Expungement, which generally is not available under current federal law, is aimed at relieving those burdens by sealing or eliminating criminal records. After someone's record is expunged, he can truthfully say he has not been convicted of a crime when he applies for college, a job, or an apartment, and his conviction is no longer a barrier to occupational licensing.

Keeda Haynes, senior legal adviser to Free Hearts, a Tennessee-based organization that provides support to families affected by incarceration, explained that distinction at yesterday's marijuana hearing. Haynes served four years in federal prison for participating in a marijuana distribution operation, which she says she did unwittingly. She finished college just before she was incarcerated, went to law school after she was released while still under federal supervision, and passed her bar exam on the first try. But she still had to persuade the Tennessee Board of Law Examiners that, despite her felony record, she was morally "fit" to practice law.

"Although I was finally released from the punitive clutches of the criminal legal
system, the damage had already been done," Haynes testified. "I now had a scarlet F emblazoned on my chest. Like so many others, regardless of my accomplishments, I would continue to be reminded and treated as a second-class citizen, all because of a felony conviction on my record."

For many people, Haynes noted, that "scarlet F" becomes a lifetime barrier to success. "Once a person is entangled in the criminal legal system, it is nearly impossible to extract oneself," she said. "While the criminal justice system claims to value rehabilitation and promotes reducing recidivism, many of the collateral consequences of a drug conviction can make these goals difficult to obtain for the average person."

A few months ago, Booker said he thought there was enough Republican support for the Senate to pass SAFE Plus, including expungement provisions. Last month, Schumer said the Senate was "very close" to considering such a bill. "We may be able to get something done rather soon," he said. "I'm working with a bunch of Republican senators, a bunch of Democratic senators, to get something passed."

After the midterm elections, Booker sounded less confident. "There's a greater understanding on these issues, and I just have a feeling that we can get something done," he told NJ Spotlight News on Sunday. "But the problem we have right now is the clock. There's very little time in this lame duck and a lot of things that people want to do." After the elections, Booker said, Schumer indicated that "it's just going to be hard to get as much done as we need to." Schumer and Booker could have avoided that problem, of course, if they had been open to piecemeal marijuana reforms sooner.

As Booker sees it, reformers need to seize the moment. After Republicans take control of the House, he said, "I just don't see the Republicans wanting to advance that," even though many House members represent "states that have legalized marijuana in one way or the other." In short, Booker said, "it's either now, or it might be many years from now."