The following first appeared on The Leaf Online.
A joint House and Senate Appropriations Committee has approved an omnibus spending bill which, if passed by the wider Congress and signed by the President, would affect the cannabis community in important ways. Those effects, however, have been generally misinterpreted by many leading media sources.
One of the most important provisions of the spending bill is in section 809 of Division E, which reads in its entirety:
SEC. 809. (a) None of the Federal funds contained in this Act may be used to enact or carry out any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative.
(b) None of the funds contained in this Act may be used to enact any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative for recreational purposes.
This is a big deal, but not the deal that some outlets claim. The Washington Post, for example, claims that this provision would “upend” Initiative 71, the legalization measure overwhelmingly approved by D.C. voters in November. Citing the two-fold nature of the initiative which would both end criminal penalties for adult personal possession and home cultivation and direct city lawmakers to craft regulations over the newly-legal industry, the Post claims that “neither part would be allowed.”
But that interpretation is incorrect. This spending rider can block the implementation of city cannabis regulations, but it cannot overturn the will of voters in removing criminal penalties.
To back up their claim, the Post cites the 11 years of Congressional intransigence which effectively blocked D.C.’s dispensary system from going into effect. It is true that similar riders in Congressional spending bills did delay the implementation of the dispensary system for over a decade by refusing to provide even the paltry funds necessary to draft new regulations. But Initiative 71 differs from D.C.’s dispensary program in one important respect in that while some of its provisions would require federal funding to implement, other sections don’t. In particular, while this omnibus spending rider would block the regulatory implementation part of 71 in a way similar to Congress’ interference with D.C.’s dispensary program, it would not nullify the end of criminal penalties for cannabis possession in the District.
A complete nullification of the law would require a special vote of Congress in which 60% of both houses voted to overturn the initiative — a fact earlier acknowledged by the Post but apparently forgotten since. This rider, despite its language offensive to advocates, is ultimately limited by its nature as a funding bill: simply put, it costs no money to not arrest people. Thus this rider, if passed, will hamper but not totally defeat the will of DC voters.
Sadly, the provision most widely hailed as a victory for reform advocates is the most misunderstood; the spending rider modeled on the proposed Rohrabacher-Farr Amendment would do far less than some advocacy organizations claim.
Kris Hermes of Americans for Safe Access provides a prime example, claiming that “for years, licensed medical marijuana businesses have operated under the threat of federal intervention and those federally prosecuted are routinely refused a defense at trial since marijuana for any purpose is a violation of federal law. With enforcement left up to local and state officials, medical marijuana defendants will be able to use evidence that can exonerate them, resulting in fairer trials than those held in federal court.”
That sounds like a nice future, but this amendment won’t bring it about. Instead, the amendment reads, in its entirety:
SEC. 538. None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana. [Emphasis mine]
Contrary to popular misconception, a spending bill which deprives the federal DOJ of funds to act against states from implementing state laws is not at all the same thing as depriving the feds of the funds to act against collectives. Neither medical marijuana dispensaries nor any state-legal recreational retailer would derive any protection from this amendment at all, even if it were passed into law. And even if they did, the effect of this spending bill is for only one year, and the statute of limitations for drug trafficking is five years — so even if Hermes were correct, the bill would still extend no significant protection.
On the other hand, any state monopoly on retail cannabis sales — similar to the state liquor stores of Utah and New Hampshire — would hypothetically be protected under this rule. The only problem is that they don’t exist.
Thus, while some outlets are correct in reporting this spending bill as a mixed victory, they exaggerate both the win and the loss.