Filibusted

As legalization advocates get closer to their goal, obstacles like the filibuster remain

Before the runoff U.S. Senate elections in Georgia earlier this month, most pot advocates were ready to accept that the GOP and Mitch McConnell would hold on to the upper chamber, meaning that any substantive reform of federal cannabis laws would have to wait at least two years. Those advocates were—completely understandably—pessimistic.

But now that the Democrats will control both the Executive branch and both houses of Congress, some of them seem to be—somewhat less understandably—too optimistic. “Nothing is stopping federal marijuana legalization now,” declared writer Mike Adams on the pot news and commentary site, The Fresh Toast.

I say, “Not so fast.”

It’s true that legalization in the form of the MORE Act that passed the House last month has a much better shot than if McConnell were still in charge of the Senate. But several obstacles remain.

While most of the worry is directed at President Joe Biden, a bigger worry should be the contingent of conservative-minded Democrats who might, together with many Republicans, put up roadblocks.

The MORE Act would not only legalize weed, going a long way toward making it a legal business just like any other (though much more heavily regulated than most), it would also require that the courts remove cannabis convictions from the records of most people who have been convicted for possessing weed. It would be a total game-changer.

Vice President Kamala Harris has, over the past couple of years, come out strongly in favor of legalization. With the Senate at 50-50, she will be the deciding vote when there’s a partisan tie. Many observers seem to think she’ll be able to bring Biden along on signing the MORE Act, should it pass. But even that is far from a sure thing.

Biden has a long history as a drug warrior who spent years declaring, against all evidence, that pot is a “gateway drug” that tends to lead people to hard drugs. As recently as last year, he said the matter was still up for debate, though he also clarified that he no longer believes it himself.

The President-elect has also come out in favor of decriminalizing pot at the federal level, though that still wouldn’t satisfy advocates of legalization. Decriminalization also wouldn’t do much to help the legal pot industry overcome the enormous obstacles to growth posed by the fact that it’s illicit. For example, businesses like banks might still shy away from doing business with pot companies, and interstate commerce would still be illegal.

Even so, given Biden’s recent history of coming around on various issues, including climate change, it seems a strong possibility Biden would sign the MORE Act. There would be no percentage in it for him to refuse.

That leaves us with the Senate, where the fate of the MORE Act is still uncertain.

The National Organization for the Reform of Marijuana Laws (NORML) said in a press release that the Democrats’ victory in Georgia “paves the way for the potential approval of comprehensive marijuana law reform legislation in the 117th Congress.” Note the word “potential.” We’re not there yet. One major problem is the filibuster.

Unless the Democrats decide to do away with it, some Republican—perhaps at the behest of obstructionist McConnell—could hold the bill up to require 60 Senators to remove the filibuster. It’s possible that could happen, since some Republicans favor legalization. But a few Democrats in the Senate, like Joe Manchin of West Virginia, might also oppose it.

NORML gives Manchin a D-minus grade on his cannabis stance, and as recently as 2017 he was still cleaving to the “gateway drug” canard.

“I go to the treatment centers. I talk to the addicts. I always ask, ‘How did you get started?’ Most told me they started out with recreational marijuana,” he said at the time. “Legalizing recreational marijuana is something I have not been able to accept or support.” (Most of them also breathed air and ate food before getting hooked on opiates, it should be noted, but those things aren’t “gateway drugs.”)

Manchin might change his mind. So might other cannabis-skeptical Democrats and pro-pot Republicans. What makes all this so hard to predict is that both support and opposition to cannabis reform is bipartisan.

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