"Democrats controlled the House, Senate, and White House and still couldn't get cannabis reform bills passed," Sen. Rand Paul (R–Ky.) complained on Twitter last week. "I would go much further and end the federal war on a plant entirely, but at LEAST let legal business operate as a legal business."
Paul was alluding to the the SAFE Banking Act, which would make it easier for state-licensed marijuana businesses to access financial services by removing the threat of civil, criminal, and regulatory penalties against banks that serve them. The bill has broad, bipartisan support because it would simultaneously dial back the war on drugs, defend federalism by reducing interference with state marijuana laws, help small businesses, and protect public safety by addressing the robbery threat those businesses face when they are forced to rely heavily on cash. But while the House has approved the SAFE Banking Act more than half a dozen times, it has never gotten a vote in the Senate.
Much of the blame for that lies with Senate Majority Leader Chuck Schumer (D–N.Y.), who until recently insisted that his own marijuana bill, which would repeal the federal ban, take priority over less ambitious reforms. Schumer's take on that situation is notably different from Paul's. "We came close, but we didn't make it," Schumer said last week, referring to his efforts to "decriminalize marijuana."
In reality, Schumer's 296-page bill, which was full of needlessly contentious provisions, did not come remotely close to passing, and no one seriously thought it would. Schumer and Sen. Cory Booker (D–N.J.) introduced the Cannabis Administration and Opportunity Act in July, a year after circulating a discussion draft. It never attracted more than the four original co-sponsors (all Democrats), was never considered by a committee, and never got any kind of vote.
Meanwhile, however, Schumer and Booker opposed consideration of the SAFE Banking Act, which falls far short of federal legalization but represents an important step toward normalizing the cannabis industry. Schumer blocked the bill, which the House passed last year with support from 106 Republicans, until late 2022, when he desperately scrambled to include it in the Consolidated Appropriations Act. That effort was frustrated by opposition from Senate Minority Leader Mitch McConnell (R–Ky.). Presumably that was what Schumer had in mind when he said "we came close."
The Senate version of the SAFE Banking Act has 42 co-sponsors, including nine Republicans. Since Paul is one of those Republicans, his dismay at the Senate's failure to take up the bill is understandable.
Schumer initially argued that passing the SAFE Banking Act would relieve pressure for federal legalization. "If we let this bill out," he warned in 2021, "it will make it much harder and take longer to pass comprehensive reform." The Drug Policy Alliance, despite its long history of supporting piecemeal reforms, agreed, warning that enacting the bill would "prioritize marijuana profits over people." The bizarre implication was that marijuana merchants, who face an ongoing, potentially deadly danger that is exacerbated by a lack of financial services, do not qualify as "people."
Have Schumer and his misguided allies learned anything about the hazards of making the perfect the enemy of the good? Maybe. Speaking on the Senate floor last week, Schumer addressed Reggie Babin, an aide who is leaving the senator's office after working with him on marijuana reform. Schumer made a "pledge" that he would "continue your work and your legacy next year." He added that Babin had "built a great bipartisan coalition, and I believe we can get it done."
Since that "great bipartisan coalition" favors marijuana banking reform but manifestly does not support Schumer's legalization bill, we can surmise that the "it" he had in mind was the former rather than the latter. Commenting on the SAFE Banking Act this month, Senate Banking Committee Chairman Sherrod Brown (D–Ohio) said he expects to "take it up and get it through" in 2023, noting that "there's interest in the Republican House."
Rep. Hakeem Jeffries (D–N.Y.), who will be the House minority leader in the next Congress, sees "an opportunity for common ground" and "bipartisan compromise" on marijuana reform. Although nearly half of the Republicans in the House voted for the SAFE Banking Act last year, it is not clear how receptive the new House leadership will be. Rep. Kevin McCarthy (R–Calif.), the current minority leader, voted for the bill in 2021, but that does not necessarily mean he will make it a priority next year if he is elected speaker.
Booker blames McConnell for the failure to pass the SAFE Banking Act. Republican leaders in the Senate are "dead set [against] anything [involving] marijuana," Booker told NJ Advance Media earlier this month. "The caucus is clearly divided, but the people in power in their caucus are clearly against doing anything on marijuana….That to me is the obstacle."
Until recently, however, Booker and Schumer were the obstacles. After they opposed including the SAFE Banking Act in last year's National Defense Authorization Act (NDAA), the bill's House sponsor, Rep. Ed Perlmutter (D–Colo.), complained that "people are still getting killed and businesses are still getting robbed because of a lack of action from the Senate." The SAFE Banking Act "has been sitting in the Senate for three years," he noted, "and with every passing day their unwillingness to deal with the issue endangers and harms businesses, their employees, and communities across the country."
Now it has been four years. In the year since that NDAA battle, the victims of pot shop robberies have continued to pile up. Last week, The Seattle Times noted that "cannabis retail stores in Washington reported at least 100 armed robberies in 2022—the most in the past 10 years." It added that "crimes have become increasingly violent, with the first robbery killing of a retail employee recorded this year at a Tacoma cannabis store in March."
First Schumer and Booker opposed the SAFE Banking Act as a threat to broader reform. Then McConnell opposed it as "liberal nonsense," notwithstanding the Republican support for the bill and the conservative arguments in its favor. All three seemed oblivious to the real-world consequences of their obstruction. Now Schumer is belatedly promising to fix a problem that could have been addressed by now if he had not squandered the opportunity.