The House Just Approved Marijuana Legalization Again, but GOP Support Remains Nearly Nonexistent

Today’s House of Representatives vote approved the bill to repeal the federal marijuana ban by 220 votes to 204. This tally comprises 217 Democrats and just three Republicans. Two fewer people voted for the earlier version, which was the Marijuana Opportunity Reinvestment and Expungement Act (MORE), Act., It was approved by the House in December 2020.

This is despite the fact that there was almost no Republican support in the House for the MORE Act. It does not bode well in its prospects in the Senate. There, 10 Republican votes will be required to defeat a filibuster, even though Democrats unanimously supported it. The same goes for the legalization bill that Senate Majority Leader Chuck Schumer (D–N.Y.) Plans to introduce the bill next month.

Both Schumer’s MORE Act, and Schumer’s draft bill from July last year contain contentious provisions. They are likely to anger Republicans who would otherwise be willing to work with them to end the conflict between federal prohibition and state laws allowing medical or recreational marijuana use. These provisions include spending programs and new regulations as well as taxes. They suggest that Democrats are interested in gaining credit for legalizing marijuana, but not the bipartisan alliance that is necessary.

In 2020, the House approved MORE Act. This was the first time either chamber had voted for marijuana legalization. As expected, however, the bill failed to pass in the Senate. The Senate was at that time controlled by Republicans. The Senate now has a split of the two major parties. Democratic control is dependent on Vice President Kamala Harris’ tiebreaking vote. The only way to end federal prohibition is to attract Republican support. Democrats are not making much effort.

There is much to like in the MORE Act, which House Judiciary Committee Chairman Jerrold Nadler (D–N.Y.) The MORE Act, which House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) introduced last May, has been reintroduced. It would eliminate marijuana from the federally banned drugs list; remove federal penalties for distribution and manufacturing; and allow automatic exoneration of marijuana convictions. This bill also eliminates various restrictions related to marijuana for immigrant, government contractor, federal employee, as well as recipients of public benefit.

If Nadler didn’t stop there, it is likely that the bill would have drawn more Republican votes. However, the MORE Act would also place a 5 percent excise tax on cannabis products. It will increase to 8% after four years. According to the bill, marijuana sellers must pay an “occupational tax” each year, obtain federal permits and report to the Treasury Department. They also have to comply with storage, packaging and labeling regulations. About half the bill is comprised of tax and regulatory provisions. This includes civil and penal penalties for violation.

MORE Act uses marijuana tax revenue to fund various programs, such as drug treatment and loans, for “services for people adversely affected by the War on Drugs,” for “people socially and economically disadvantaged” and grants that aim at decreasing “barriers and obstacles to marijuana licensing. [to]Individuals adversely affected from the War on Drugs can apply for employment. Those “social equity” provisions gave pause even to Rep. Matt Gaetz (R–Fla.This bill was co-sponsored by only one Republican, Rep. Matt Gaetz (R. Fla.).

The Cannabis Administration and Opportunity Act (Schumer’s draft bill) doubles down upon this overly restrictive and burdensome approach. This federal excise duty on marijuana would start at 10% and rise to 25% in the fifth year. The Food and Drug Administration, the Treasury Department’s Alcohol and Tobacco Tax and Trade Bureau, and the Justice Department’s Bureau of Alcohol, Tobacco, Firearms, and Explosives, will supervise state-licensed marijuana companies, already regulated by local and state governments. This bill includes detailed regulations regarding production, storage and transportation as well as packaging, labeling and advertising.

Like the MORE Act, the Cannabis Administration and Opportunity Act would use revenue from the federal marijuana tax to create new spending programs. Community Reinvestment Grant Program “funds nonprofits that provide services for individuals adversely affected from the War on Drugs such as job training and reentry assistance, along with legal aid.” The Cannabis Opportunity Program will “provide financing to eligible states to make loans for small businesses involved in the marijuana industry that are owned and managed by economically and socially disadvantaged people.” Equitable Licensing Grant Program “will provide funding to eligible state and localities for cannabis licensing programs to minimize obstacles for those adversely affected in the War on Drugs.”

One of the 202 Republicans who voted against the MORE Act today was Rep. Dave Joyce (R‒Ohio), a co-chair of the Congressional Cannabis Caucus. Joyce is committed to repealing federal prohibitions, but he doesn’t like the idea of “social equity”. He believes the MORE Act lacks a responsible regulatory framework. Joyce has also introduced the Common Sense Cannabis Reform Act to legalize marijuana. It aims at treating it like alcohol.

Joyce’s bill has just 14 pages and does not contain a federal cannabis tax. The bill is the only Republican-led comprehensive marijuana reform bill to not contain any MORE Act provisions, he says.

That seems like a veiled reference to the 133-page legalization bill sponsored by Rep. Nancy Mace (R‒S.C.States Reform Act (which is more similar to the MORE Act but seeks to win more GOP support), was also mentioned. Mace, who also voted against the MORE Act today, would impose a 3 percent excise tax, which would remain at that level for at least 10 years. Mace summarizes the bill as saying that the 10-year suspension on increasing the excise taxes is intended to ensure “competitive footing” in the market. In other words, a relatively low tax rate will help legal marijuana businesses compete with black-market dealers, who do not pay taxes.

States Reform Act would establish a Law Enforcement Retraining and Successful Second Chances Fund. This fund would channel marijuana tax money into three programs already in place: Crisis Stabilization and Community Reentry Grant Program and Edward Byrne Memorial Justice Assistance Grant Program. The money would also be used to support small-scale entrepreneurs, “veterans’ mental well-being,” the state opioid epidemic response and “preventing underage cannabis use.” [marijuana]Through its many programs, businesses can benefit.”

Like Schumer’s or the MORE Acts, Mace’s bill envisions federal agencies playing a regulatory role, although it is more restrained than Schumer’s, and allows states to have greater flexibility. For example, it says the FDA “shall have the same authorities with respect to cannabis products that it has with respect to alcohol,” such as label regulation for certain beverages, “and no more.”

The summary states that this provision “ensures cannabis products in interstate Commerce will be treated like Alcohol and that regulatory issues that harm the industrial hemp-derived CBD Industry will not be repeated within the cannabis space.” To ensure patients’ continued access, the bill “grandfathers” “designated state medicinal cannabis products,” which are those that have been produced in accordance with state law. FDA may still provide serving sizes and certify state-designated medical cannabis products under ministerial duties. It can also authorize or approve new drug uses to make new pharmaceutical-grade products. However, it cannot prohibit cannabis use in other non-drug applications such as food, drinks, cosmetics, supplements or non-drug topical solutions.

The TTB would be likened to alcohol. While the ATF will support the work of the TTB, the ATF would serve as primary law enforcement agency. The Department of Agriculture will regulate cannabis crops the same as it regulates raw materials used in alcoholic beverages like grains and hops. The legislation “applices to cannabis the exact recordkeeping and liability requirements, as well as reporting, packaging, marking, and labeling requirements[s]These regulations apply to alcohol industries under the Internal Revenue Code. It would also prohibit advertising cannabis to minors that is misleading or false.

Joyce’s concise and simple bill seemed like the best. Mace makes many complicated concessions in an attempt to attract Democratic support. However, this has not worked out so far. The bill only has four cosponsors and they are all Republicans. Joyce’s bill includes Mace, four Democrats and eight other cosponsors. The numbers are not impressive. Nevertheless, at this point both bills still have greater GOP support than the Democrats were able to get for the MORE Act.