.They’s Agin’ It: Federal Cannabis legalization is possible, even with opposition from a Republican Congress

A bill to legalize weed at the federal level is now under debate in the Senate. Thanks to opposition from most Republicans and a few conservative Democrats, it’s almost certain to fail in this session. But having an actual bill in hand, and debate under way, lets us know what our legislators are thinking, and how such a bill might shape up over the coming few years, when most observers think legalization is likely to finally pass, depending on the makeup of Congress and who might be in the White House.

The momentum is strong, however, and it’s conceivable that even a Republican-controlled Congress might end up legalizing pot. After all, more than 90% of Americans think weed should be legal, at least for medical use. There isn’t really a constituency for prohibition anymore, however loud the few remaining prohibitionists might be. Meanwhile, the demand for reform is growing right along with the lobbying might of the cannabis industry. With more states legalizing every year, federal prohibition seems more and more ludicrous.

But will Congress flub it, and pass a bad bill? It certainly might. Reaction to the current bill, introduced a couple of weeks ago by Majority Leader Chuck Schumer, has been widely characterized as generally positive, but “mixed.” That is, reaction from the cannabis industry and proponents of legalization; reaction from prohibitionists is obviously not mixed: they’s agin’ it.

The Cannabis Administration and Opportunity Act, sponsored by Schumer along with Sen. Ron Wyden of Oregon and Sen. Cory Booker of New Jersey, would remove pot from the Controlled Substances Act entirely, and would give states the power to pass their own cannabis legislation, creating a legal environment similar to how alcohol is regulated.

An excise tax would create a system of “restorative justice,” and would finance research into the public health and safety aspects of cannabis. This is fine, say skeptical observers, but the tax would be too burdensome, especially in states and localities—like California and some of its cities—where taxes are already prohibitively high.

Revenue from the tax would go toward, among other things, an office at the Justice Department that would help finance job training and legal aid for people whose cannabis convictions would be expunged under the law. It would also provide loans to small cannabis businesses owned by people in economically or racially marginalized groups.

But the tax would grow to as high as 25% for big companies. Cannabis businesses with less than $20 million in annual sales would get hefty tax credits, but even then, the tax would be on top of often-high rates that the industry has cited as making cannabis prohibitive for many would-be entrepreneurs in a business that often operates with slim profit margins and must also deal with expensive regulations. In California, in particular, the high tax rates—a 15% state excise tax, plus other state and local taxes—have been blamed for sending customers to illicit weed peddlers, where the tax rates are zero.

Of course, the rate in this draft bill isn’t set in stone, and for the most part, advocates cheer for it, even when they have some reservations. Their challenge is to sway enough Republicans and conservative Democrats to overcome the filibuster, which would require 60 votes in the Senate. For the moment, that seems close to impossible.

But if it were to happen, another challenge would loom: Getting President Biden to sign it into law. Just hours after the bill was introduced, Jen Psaki, the White House press secretary, issued a statement reiterating that Biden remains opposed to legalization. That doesn’t mean he can’t be swayed on the issue—the stance might simply be a negotiating tactic; Biden has shown some flexibility on the issue recently, though he also has staunchly opposed legalization in the past—but it does mean that the bill as it exists is subject to lots of tinkering.

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