As Senate leaders work to draft a bill to federally legalize marijuana, there’s an elephant in the room: even with Democrats in control of the chamber, the votes might not be there to enact comprehensive reform.
Recognizing the potential challenges of mustering 60 votes to overcome a filibuster for standalone legislation on the floor, advocates are urging leadership to pursue the policy change through a process known as budget reconciliation that would require a simple majority of 51 votes for a broader, must-pass package.
Senate Majority Leader Chuck Schumer (D-NY), who is spearheading the legalization push in his chamber, didn’t rule out that possibility at a press conference last week.
Asked whether senators might try to incorporate the cannabis proposal into reconciliation, he said “you will hear in a few weeks the legislation that’ll answer” that question.
“This is an option the Marijuana Justice Coalition shared” with the majority leader, Maritza Perez, director of the office of national affairs for the Drug Policy Alliance, told Marijuana Moment. “The way we see it, a must-pass bill is the only vehicle that can ensure we pass a marijuana justice bill in this Senate.”
Chris Lindsey, director of government relations for the Marijuana Policy Project, told Marijuana Moment that it’s clear “Leader Schumer is taking seriously his commitment to see legalization happen at the federal level, and address the ongoing harm from prohibition.”
“We have no doubt he is looking at all vehicles that can accomplish reform,” he said.
But while going the reconciliation route might seem like a simple workaround that would relieve pressure to garner Republican supporters, the legislative process is complex, with a series of rules that limit what kind of measures can be enacted under the procedure in the first place.
The so-called Byrd rule determines whether a given proposal is an “extraneous matter” that’s not germane to the budget process. There are several criterion that are used to make that determination, including whether the legislation would add to the deficit beyond a 10-year “budget window.”
If a senator opposed to legalization wanted to block the marijuana language from being included in the broader package based on this procedural rule, they would have to raise a point of order. The Senate Parliamentarian would then make a determination, in consultation with the presiding officer of the chamber. If they deemed the language in violation of the Byrd rule, it would be stricken from the reconciliation bill.
Assuming that the forthcoming legalization measure survives a challenge under those reconciliation limitations, it’s possible it will face a separate hurdle. Under the process, any member can introduce an amendment, and they must all be considered on the floor in a lengthy process known as “vote-a-rama.”
That means, if a senator opposed to marijuana reform chooses to, they could force a vote on an amendment calling for the legalization language to be stripped, which would then require a simple majority to defeat it. That might sound easy enough given that Democrats now hold the majority, but there’s yet another complication: some members of the party have signaled that they’re not on board with federal legalization.
Sen. Jeanne Shaheen (D-NH), for example, told Politico last week that she doesn’t support legalization and that “we’re in the middle of an opioid epidemic, and the research that I’ve seen suggests that that is a way that more people get into drugs.” Sen. Jon Tester (D-MT) said he thinks legalization would “cause more problems than it solves.” Sens. Joe Manchin (D-WV), Bob Casey (D-PA) and Mark Kelly (D-AZ) all told the outlet that they remain undecided on the issue.
What’s more, a number of other Democratic senators such as Sens. Ben Cardin (D-MD) and Debbie Stabenow (D-MI) told Business Insider in March that they hadn’t looked closely enough at the issue of federal legalization to say how they would vote. Sen. Dianne Feinstein (D-CA), a longtime opponent of legalization who in recent years came around to sponsoring some reform legislation, represents another question mark for Democratic leaders.
Losing any single one of those lawmakers would jeopardize the bill even it only 50 votes are required, with Vice President Kamala Harris as the tie-breaker. For any Democrat legalization loses, Schumer would have to pick up a Republican to get back to 50.
Sen. Rand Paul (R-KY) supports cannabis reform and said he is “one of the possible gets” this session, though he questioned why his Democratic colleagues haven’t reached out to him on the issue—and his libertarian leanings could give him pause about supporting any proposal to tax marijuana and use the proceeds to repair the harms of the war on drugs.
Put simply, if senators move to incorporate legalization into a budget package via reconciliation, things could get messy—but it may be their only possible path to success given the alternative standalone route and the 60-vote threshold to end a filibuster.
Meanwhile, Sen. Cory Booker (D-NJ) said on Tuesday that he’s “pretty confident that we could get the 50 votes of the Democrats” for broad cannabis reform, but also seemed to suggest that the bill might actually be brought to the floor under regular order and would need to overcome a filibuster.
“We’ve got to pick up another 10 votes. Now, the good news is, is that there are Republican bright red states that have legalized marijuana,” he said at a 4/20 event hosted by the ACLU of New Jersey. “And that should give us some advantage in trying to cobble together the kind of majority that we need. .. I’m going to do everything I can to cobble together the 60 votes necessary. Unless of course, we somehow get rid of the filibuster, which would be wonderful.”
Justin Strekal, political director for NORML, told Marijuana Moment that no senators’ vote should be taken for granted and that supporters need to make it clear that they expect their elected officials to represent their views no matter how cannabis reform proceeds to the floor.
“As all procedural possibilities are explored, one thing is certain: far too many U.S. senators believe it to be acceptable to arrest and incarcerate Americans for marijuana possession,” he said. “Now is the time for each and every supporter of cannabis policy reform to contact their elected officials and make it clear that they will be watching.”
Democrats were cleared by the Senate parliamentarian to do another reconciliation bill this year and seem poised to pursue the option in the coming months—but cannabis isn’t the only issue that could be attached to the procedurally complicated legislation.
Drug pricing, immigration reform, climate policy and other issues are all on the table as Democrats step up their push to deliver wins on infrastructure and jobs before the midterms. House Budget Chairman John Yarmuth (D-KY) said the upcoming reconciliation package will be tantamount to a “kitchen sink” approach—throwing everything in. As such, advocates say cannabis should be included.
Despite the possible challenges, legalization advocate Sen. Bernie Sanders (I-VT) told The Washington Post that he’s open to using reconciliation to enact the reform. However, “there are a whole lot of questions out there” and “it’s a little bit more complicated” procedurally.
Schumer isn’t alone in drafting the reform legislation this session. He’s teamed up with Booker and Senate Finance Committee Chairman Ron Wyden (D-OR) to get the job done. The majority leader said the bill will be released “shortly” and put to the floor “soon.”
The majority leader told Marijuana Moment in an interview last week that one thing they want to avoid is to enact a policy change that’s temporary, such as attaching amendments to appropriations legislation. Schumer said their “first goal is not to settle for just partial measures.”
On the House side, Judiciary Chairman Jerrold Nadler (D-NY) said recently that he plans to reintroduce his legalization bill, the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, which cleared the chamber last year but did not advance in the Senate under GOP control.
Another factor that’s frustrating advocates is a more long-term concern: President Joe Biden opposes federal legalization, and his press secretary on Tuesday wouldn’t say whether he would sign or veto a reform bill if it’s sent to his desk. She did note, however, that his position is at odds with the proposals that congressional leaders are working on.
Photo courtesy of Philip Steffan.