With Democrats Gaining Legislative Momentum, Now Is The Time For Biden To Weigh In On Marijuana Legalization

Last week Marijuana Moment broke the news that President Joe Biden’s daughter-in-law Melissa Cohen was spotted shopping at a cannabis dispensary in Malibu, California. This certainly raises ethical questions about an immediate family member of the President enjoying the convenience of legal cannabis sales while such behavior remains strictly illegal in the eyes of the federal government that her father-in-law oversees.

But for those who have been following cannabis policy development at the federal level, it raises a more pressing question: Why has President Biden been largely silent on the issue of cannabis policy reform when it has become a major policy priority for the Democratic Party this legislative session? After all, the President has been outspoken about the need to bring home WNBA star Brittney Griner for being unfairly detained and incarcerated in Russia. Yet he remains silent about the first consequential attempt at legislation that would impact tens of thousands of Americans currently languishing in American jails and prisons for the same offense.

Both House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer have made passing marijuana reform a major priority. Speaker Pelosi’s House of Representatives has twice passed the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act that would federally legalize cannabis, and in July Leader Schumer introduced the long-awaited Cannabis Administration and Opportunity Act (CAOA), followed shortly by the first ever Senate hearings on federal legalization.

While their are no expectations that MORE or CAOA will become law in 2022, as there is virtually no path to either bill receiving the 60 votes needed to pass the Senate, both House and Senate champions on this issue have indicated that negotiations are underway for a more incremental compromise bill that could pass both chambers. The bill, being referred to as “SAFE Banking Plus” or the “cannabis omnibus,” is currently being negotiated by members of both parties who have been outspoken about the need for reform but have largely differed on their approach.

For the past year and a half this dispute has largely existed between members of the Democratic Party. Moderates and pragmatists like Rep. Ed Pearlmutter and Sen. Patty Murray have argued for the passage of the SAFE Banking Act, a bill that has passed the House five times with bipartisan support, while progressives like Rep. Alexandria Ocasio-Cortez and Sen. Cory Booker have argued that banking access should wait until more comprehensive reform that does more to repair communities that have been most negatively impacted by marijuana prohibition.

As we near the end of the legislative session, the Democratic Party, and the activists and industry interests following along, finds itself at a critical juncture trying to piece together a bill that includes a handful of provisions that can garner 60 Senate votes. Discussions have reportedly included the language in the SAFE Banking Act, expungements for people with federal criminal records for cannabis offenses, Small Business Association loans for social equity cannabis licensees, and possibly revising the 280e provision of the IRS tax code that treats state licensed cannabis businesses the same as drug traffickers for the purposes of filing their taxes.

Yet throughout this process, arguably the most important voice in the Democratic Party, the President himself, has remained largely silent. Sure, his spokespeople have reiterated Biden’s campaign stance that he does not support legalization but instead favors decriminalization and allowing states to set their own policies. But none of this addresses the specific detailed and more nuanced proposals currently being negotiated as part of an incremental reform package.

Banking and tax reform, expungement, and SBA loans for equity businesses all fall short of full legalization, but go beyond decriminalization. Where does the President stand on these issues? Sure, he has historically been one of the Senate’s biggest supporters of marijuana prohibition, but Biden has also shown a willingness to change with the times, as evidenced by his political evolution on issues like same sex marriage and abortion. Would he sign a bill that includes all of these provisions and manages to pass both chambers of Congress? Would the President dare to veto something so universally popular among his party and base despite his long-documented opposition to marijuana reform? The answer is, we simply don’t know.

Senator Booker recently indicated that this compromise bill would likely be voted on during the lame duck session between the midterms in November and the new Congress being seated in January. That leaves precious little time to get the details right and pass the bill. Should Biden disapprove and veto, there may be no time left to make changes that would appease the administration. President Biden inserting himself into the process now, making clear what he supports and what he opposes, could avoid a disaster scenario in which nothing becomes law before the end of the session.

This is crucial, because if comprehensive reform doesn’t pass this year, and the Democrats lose one or both houses of Congress as is largely expected, it will be highly unlikely that a GOP controlled Congress will advance any of these measures. This makes it even more imperative that Biden chime in now, since under this scenario a president who clearly does not want to spend time on this issue will find himself faced with continued pressure and calls for action from his administration. After all, in a scenario in which Congress has failed to act on this issue with a new GOP controlled Congress unwilling to pass anything that could be seen as a win for Democrats, advocates and members of Congress alike will ramp up pressure on the Biden administration to take executive and administrative action to address these issues through the executive branch.

This could include seeking new guidance memos from the Department of Justice to replace the Obama-era Cole Memo, which was rescinded by then Trump appointed Attorney General Jeffrey Beauregard Sessions III, directives to the IRS to reinterpret the 280e provision of the IRS tax code to not apply to state licensed cannabis business, mass presidential pardons, commutations and expungements for those currently and previously convicted of cannabis offenses in federal court, guidance allowing for interstate commerce between states with legal cannabis laws, or instructions to the federal Small Business Association to consider making loans to social equity and mom and pop cannabis business owners.

If President Biden truly does not want this issue to be something he needs to address throughout his administration, it is in his interest to come out now and clearly state his position on which incremental changes he would sign into law before the end of the current session, rather than continuing to leave the discussion entirely to Congressional leaders. This could end nearly two years of intra-party fighting, allow Congress to pass a reform bill efficiently, and give the President a bill he can sign and move on to other issues that he would rather spend his time on. And hey, it might even add a little joy to the next Biden family gathering.