The Cannabis Down-Ballot
He had us at hello, especially with his sponsorship of the federal Ending Federal Marijuana Prohibition Act of 2015. But as Bernie’s path has (euphemistically speaking) narrowed, the talk has taken a wider focus, turning to “political revolution” or sometimes, “building a progressive political infrastructure.”
If we were to substitute “cannabis” for “progressive” it looks like a to-do list.
Why Focus on Federal Law?
For many cannabis activists, the temptation will certainly be to look back to state ballot initiatives. That’s where the successes have been so far.
But some of the most vexing issues for a legal cannabis industry can only be addressed through federal legislation. This includes things like:
- access to banking;
- repeal of the specifically punitive provisions of tax code Section 280E;
- protection of intellectual property rights for cannabusinesses;
- removal of the impediments to medical research; and
- food and drug safety standards and testing to protect cannabis agriculture.
Michelle Rutter, Government Affairs Coordinator at the National Cannabis Industry Association told TTT that,
It boils down to the fact that Congress hasn’t changed federal law. Until then the federal government can change policy and shut down your [business’s] bank account. State law is a short term solution; the cannabis industry can’t flourish until the federal government steps in. The states can’t keep moving the issue forward.
The Senate looms large as an agent of change because it both legislates and confirms presidential nominees, including the U.S. Attorney General and Supreme Court justices. It’s something of a twofer when it comes to the three branches of government. So, what follows is a brief analysis of eleven 2016 Senate races where a change is likely.
The first challenge for cannabis voters is getting candidates on record about federal marijuana reform. The second will be to keep elected officials on task. Both are collaborative projects where high intent users can put their talents and influence to work. And, of course, cannabis voters have to show up on November 8.
Two tools were important for the initial level of analysis. The first is an assessment published by the University of Virginia Center for Politics, entitled “Larry Sabato’s Crystal Ball” that handicaps Senate races in terms of likelihood of change. Most of that potential has been created by retirements.
The second tool is NORML’s recently released 2016 Congressional Scorecard, which is particularly useful in predicting future voting behavior where a track record exists. The scorecard assigns a grade of “A” to “F” to members of Congress based on their marijuana-related comments and voting records. The latest iteration particularly weighs three votes when determining grades for US Representatives:
- The 2015 McClintock/Polis Amendment which sought to prohibit the Department of Justice from interfering with state-specific, adult use marijuana laws.
- The 2015 Rohrabacher/Farr Amendment which prohibits the Department of Justice from interfering with state-specific medical marijuana programs that license the production and dispensing of cannabis to qualified patients.
- The 2015 Blumenauer Amendment, which sought to permit physicians affiliated with the US Department of Veterans Affairs to recommend cannabis therapy to veterans in states that allow for its therapeutic use.
It weighs the following when determining grades for US Senators:
- The 2015 Daines/Merkley Amendment, which closely resembled the 2015 Blumenauer Amendment described above.
- The 2015 Mikulski Amendment, which tracked the language of the Rohrabacher/Farr Amendment,
- The 2015 Merkley Amendment, which sought to prohibit the US Treasury Department from using federal funds to take punitive actions against banks and other financial institutions that provide services to marijuana-related businesses that are operating legally under state laws.
The third tool is a homegrown survey for candidates who have less history. It is highly susceptible to improvement, and readers are invited to comment, improve and use. It might be more valuable for voters in contested races. Non-constituents may find a more effective voice through advocacy and lobbying organizations.
Barbara Boxer’s retirement opens the door for change. The seat is rated safely Democratic, so the June 7 primary contest between Attorney General Kamala Harris and Representative Loretta Sanchez will likely decide the race.
Harris, who has consistently polled ahead of Sanchez, is seen as closely aligned with Boxer, who co-sponsored the Compassionate Access, Research Expansion, and Respect States Act of 2015 (CARERS) That bill would ease patient access to medical marijuana, as well as restrictions on banking. In a recent interview with The Sacramento Bee, Harris supported moving marijuana from Schedule I to Schedule II and said that she is open to recreational legalization which she sees as inevitable.
Sanchez gets a NORML Congressional Scorecard grade of “B,” having voted for all three of the amendments used in the rating. She has said she is open to a state pilot program that legalizes and taxes marijuana for adults 21 and over.
California cannabis voters can be counted on to be mobilized and motivated in November. The state is widely expected to legalize adult use, tipping the national balance for legalization. Voters can be expected to be highly motivated to consider the potential for cannabis reform in the Senate election, as well.
With Marco Rubio’s retirement, anything could happen. The contest is a toss-up, and at least a dozen people are running.
This includes at least two well-known Democrats: Reps. Patrick Murphy and Alan Grayson. At least four Republicans also appear to be in serious contention: Reps. David Jolly and Ron DeSantis, Lt. Gov. Carlos Lopez-Cantera and businessman Todd Wilcox. Much could still change before the June 24 filing date for the August 30 primary.
Marijuana is illegal under federal law because there is no currently accepted medical use for the drug and because of the physiological impact it has on individuals. Marijuana decreases memory, impairs motor skills and contributes to paranoia, anxiety, schizophrenia and other emotional and psychiatric disorders. Marijuana is also illegal because of its high potential for abuse and dependence.
Neither Lopez-Cantera nor Wilcox appears to have taken a public position on federal marijuana reform.
Florida voters will also have another chance to vote on an initiative to legalize medical marijuana. The proposed constitutional amendment is a retooled version of a 2014 proposal that narrowly failed at the polls. The new measure appears to have widespread support, and cannabis voters are expected to turn out.
Sen. Mark Kirk is seen as one of the most endangered Republican senators. He will face Rep. Tammy Duckworth in a race that looks like a statistical tie. NORML gave Kirk a grade of “F” and Duckworth a “B”.
Chances are slim that a legalization initiative will appear on the November ballot, even though MoveOn.org is currently circulating one online and Illinois NORML has been active in organizing lobby days.
Even without a specific cannabis issue to vote on, voters may be motivated by pent-up frustration at delays in implementing Illinois’s medical marijuana pilot program. A bill to decriminalize possession of small amounts of marijuana is currently pending in the state legislature after having failed in a previous session.
The level of activity may suggest that cannabis voters can be moved to vote in the Senate race with an eye to changing federal law.
Sen. Dan Coats is retiring, but the seat is safely Republican. Rep. Todd Young emerged from the May 3 Republican primary as the next likely senator.
It is not clear that there is an organized bloc of cannabis voters in Indiana or that they be counted on to vote in the general election. According to MPP’s analysis,” Indiana has some of the most draconian marijuana penalties in the country.” Nonetheless, Coats had an “F” on the NORML scorecard and Young has a “B.” The prospects for federal cannabis reform may already have gotten a little better.
David Vitter’s retirement also opens the door for a fresh face, although the seat is likely to stay in Republican hands. Louisiana has what some term a “jungle primary.” All candidates run in the general election, regardless of party affiliation. If no candidate garners 50 percent of the vote, the top two compete in a runoff race. So far, nine candidates have declared.
The Republicans include Reps. John Fleming, and Charles Boustany, Jr, both of whom have received a “D” rating, from NORML, a step up from Vitter’s “F”. Other Republican contenders include former Congressman Joseph Cao, retired colonel Rob Maness and state treasurer John Kennedy. In 2013, Maness took the position that marijuana should never be legalized. Neither Kennedy nor Cao appear to have taken a public stance on cannabis reform.
Louisiana has hardly been in the forefront of cannabis reform, Canna Law Blog, which runs a feature rating states from worst to best on cannabis policy, puts Louisiana at 35. Although it retains harsh criminal penalties for possession, the state has had a functioning medical marijuana program since June 2015. As with Hoosiers, it is not clear that Louisianans are mobilized around the issue of cannabis reform, yet.
The retirement of Sen. Barbara Mikulski from a seat seen as safely Democratic opened the door for Rep. Chris Van Hollen, the victor in the April 26 Maryland Democratic primary. Van Hollen, like Mikulski, received a grade of “B” in the NORML Congressional scorecard.
Maryland has a medical marijuana program, which is not yet operational, but the hard fought battle to legalize medical cannabis suggests that voters may be ready to mobilize around the issue of federal reform, as well.
The race between incumbent Sen. Kelly Ayotte and Democratic challenger Gov. Maggie Hassan is also seen as a toss-up.
Ayotte received a grade of “F” on the NORML scorecard, but Hassan’s support of cannabis reform is certainly no more than tepid. The governor signed a medical marijuana bill in 2013 but, because of changes she insisted upon, the first dispensary opened only on April 30, 2016. Hassan promised to veto a 2014 bill to tax and regulate marijuana like alcohol and has voiced continuing concern about the link between recreational use and other forms of substance abuse.
Legalizing marijuana won’t help us address our substance use challenge. Experience & data suggests it will do just the opposite. Marijuana remains illegal under federal law. Our state already has one of the highest rates of marijuana use by young people in the country, and marijuana has real, negative health effects, especially on adolescents.
The evidence suggests that legalizing marijuana will increase the number of minors who use this drug, will make our workforce less productive and our roads less safe, and will undermine public health.
On the other hand, she favors a comprehensive review of criminal statutes and the justice system to provide treatment alternatives to incarceration for drug offenses.
In February, the New Hampshire legislature defeated two bills to legalize marijuana. A third remains pending in committee. Although a 2015 poll found that 60 percent of voters favor legalization, New Hampshire remains the only New England state where possession of any amount of cannabis is a crime.
Popular sentiment seems stymied by state government, and neither of the Senate choices is a champion for federal cannabis reform. It is not clear whether New Hampshire voters can be mobilized on the issue in this election cycle.
Sen. Harry Reid’s announced retirement gave hope to Republicans looking to pick up a Senate seat. The race is seen as a toss-up, however, with more than a dozen people running. For months, the battle seemed to be shaping up as a contest between former Nevada Attorney General Catherine Cortez Masto on the Democratic side and Rep. Joe Heck. Heck’s prospects for the Republican nomination have been complicated, however, by the recent entry of 2010 candidate Sharron Angle.
Heck was a co-sponsor of the House version of the CARERS bill and NORML gives him a “B” rating. He is on record as supporting increased access to medicinal marijuana, but voices concerns about recreational marijuana use, particularly for public safety reasons.
In an interview with Liberty Watch magazine, Angle said that she opposes legalizing marijuana, and would treat alcohol the same way. “The effect on society is so great that I’m just not a real proponent of legalizing any drug or encouraging any drug abuse.”
Masto’s position on legalization is careful and lawyerly. She was a member of a legislative working group that opposed the state’s medical marijuana law, although she took no personal position. She voted against the 2000 ballot measure that legalized medical cannabis, but as the state’s top law enforcement officer, she promised to enforce the provision regardless of her personal position. In 2006, she said of recreational legalization, “I do not see a benefit in our state in legalizing marijuana.”
Nevada voters will have the opportunity to vote on a measure that would legalize recreational use, to appear on the November ballot as Question 2. There is reason to expect that they will be motivated to consider the question of cannabis legal reform in their choice in the Senate race, as well.
Incumbent Sen. Rob Portman will be running against Democratic challenger former Gov. Ted Strickland, and the race is seen as a toss-up. NORML gives Portman a rating of “F.”
Strickland, on the other hand, supports decriminalization and medicinal legalization of marijuana, although he, like many others, was troubled by the monopoly aspect of Issue 3, which failed in 2015.
Medical marijuana, in my judgment, is a no-brainer. It should be legalized. The decriminalization of marijuana should occur. We ought not be putting people in jail for choosing to smoke a joint even though some people think that’s the right course of action.
In later comments, he reportedly appeared to broaden his support to include the recreational use of marijuana, as well.
With the support of MPP, Ohioans are increasing likely to see an initiative to legalize medical marijuana on the November ballot. At the same time State lawmakers and two citizen advocacy groups are working on legislation to permit qualified patients access to medical marijuana. Cannabis voters in Ohio are very likely to be mobilized and motivated to vote in the 2016 election and may see the Senate race as another avenue to work for reform.
Incumbent Sen. Pat Toomey will face Democrat Katie McGinty in the 2016 Senate race. The race is generally seen as a toss-up, but this bit of handicapping may date to a time when many believed that former Rep. Joe Sestak would be the Democratic challenger.
NORML gives Toomey a grade of “D.” Recently, however, he has voiced support for CARERS Act provisions that would facilitate more research into medical marijuana.
McGinty, former Chief of Staff for Pennsylvania Governor Wolf, also supports access to medical marijuana and decriminalization of simple possession.
On April 13, 2016, The Pennsylvania House of Representatives passed SB3, a bill legalizing medical marijuana, and the governor signed it into law on April 17. Pennsylvania voters favored medical legalization by a whopping 90 to 9 percent. They are more evenly divided on personal recreational use, but the freshness of the victory may bode well for mobilization around the issue of cannabis legalization in the Senate race.
NORML gives Johnson a grade of “B.” Feingold is seen as similarly cannafriendly. During his previous tenure in the Senate he voted against increasing penalties for drug offenses and using international development funds for drug control. He also supported efforts to end harsher sentencing for crack versus powdered cocaine.
Wisconsin has a CBD-specific law, but without operating dispensaries, patients have little access to medication. Recent attempts at decriminalization and the legalization of adult use have been unsuccessful, likely in part because of the governor’s staunch opposition. Efforts to organize activists around the issue of legalization have lately been on a city-by-city basis. Whether voters can be mobilized around federal cannabis reform in the Senate race remains to be seen.
The Third Tool
It is notoriously difficult for voters to access detailed information on the policy positions of non-presidential candidates. Statements to the effect that a candidate would favor more research or supports letting states tax and regulate marijuana for medical or recreational purposes simply do not give enough information about some of the more detailed points of federal law.
The National Cannabis Industry Association, which follows federal cannabis law closely, has suggested that candidates seeking support of the industry be specific about the kind of reform they support. The same could be said of those asking for information. Activists might start with with the following questions (based loosely on the provisions of the CARERS Act, the Ending Federal Marijuana Prohibition Act and other recent federal legislative efforts):
- Do you agree that states should be able to carry out their own marijuana policies without interference from the federal government?
- Would you support legislation that would abolish all federal penalties for possessing and growing marijuana and remove references to cannabis in the Controlled Substances Act?
- Would you support re-scheduling cannabis from Schedule I or de-scheduling it entirely.
- Would you support that legislation that would:
- Prohibit a federal banking regulator from penalizing a depository institution from providing financial services to a marijuana-related legitimate business.
- Direct the VA to authorize VA health care providers to provide veterans with recommendations and opinions regarding participation in state marijuana programs.
- Would you support the repeal of Section 280E of the Internal Revenue Code?
- Would you support legislation that would support the extension of federal intellectual property protection to cannabis businesses legal under applicable state law?
- Would you support legislation that would enable the USDA, EPA and FDA to develop and promulgate guidance for safe agricultural practices and drug manufacturing in the legal cannabis industry?
Why should the average consumer care about federal cannabis policy or a little nip or tuck there in Senate makeup?
While unlikely, a new administration could roll back all the progress made by the states. More in the realm of reality, though, federal policy could do a lot to ensure quality and safety of the products sold. A more normal business climate could also work to bring down prices and increase supply, which would be good for business and high intent users alike.
Federal law matters.