Here’s What The Midterm Congressional Election Results Could Mean For Federal Marijuana Reform

Where The New Republican And Democratic Congressional Leaders Stand On Marijuana

This month’s elections put Republicans back in control of the U.S. House of Representatives, raising questions about the prospects of marijuana reform in the next Congress.

In recent years it has been repeatedly shown that cannabis legalization and smaller, incremental reforms such as banking access have majority support to pass. But whether marijuana legislation advances or stalls in the next two years will largely come down to whether those who are in leadership allow the measures to even be brought up for votes.

The full House still needs to formally elect a new speaker at the start of the new Congress in January, but the Republican caucus has already made their picks for top leadership positions. Democrats, meanwhile, have yet to hold a caucus election to fill the top spots for the 118th Congress, but members appear to be rallying around a new generation of expected incoming leaders.

While not all decisions have been finalized yet, there aren’t expected to be any major surprises. So here’s a look at where the key lawmakers in both parties stand on marijuana and other drug policy reform:

Republicans

House Speaker

Current House Minority Leader Kevin McCarthy (R-CA) was nominated by his GOP colleagues earlier this month to be elected as speaker. While it remains to be seen whether he can get a majority of at least 218 votes on the floor in January to officially get the job, McCarthy’s prospective election is not an especially ideal scenario for legalization advocates, as he’s opposed various reform proposals—though he did vote for a bipartisan cannabis banking bill twice.

McCarthy voted against the House-passed Marijuana Opportunity, Reinvestment and Expungement (MORE) Act to legalize marijuana earlier this year, and he’s also opposed multiple amendments to provide protections for state-legal recreational, medical and CBD-only cannabis programs.

He blasted Democrats in 2020 over scheduling a vote on the legalization bill, saying that the party was “picking weed over the workers” and “picking marijuana over the much-needed money we need to go forward, the small businesses that are closing” amid the pandemic.

The congressman voted against legislation to let U.S. Department of Veterans Affairs (VA) doctors to recommend medical cannabis to veterans, retroactively make it so cannabis could not be used as the basis of denying federal workers a security clearance and remove research barriers into Schedule I drugs including marijuana and certain psychedelics.

McCarthy voted in favor of a controversial proposal to remove language of a spending bill providing protections against the loss of federal funding for universities that study cannabis. That amendment was ultimately rejected last year.

However, he did vote for a bipartisan cannabis research bill in April that recently cleared the Senate, making it the first-ever piece of standalone marijuana reform legislation to be sent to the president’s desk.

McCarthy has also twice voted in support of the Secure and Fair Enforcement (SAFE) Banking Act to protect banks that work with state-legal marijuana businesses from being penalized by federal regulators. That’s despite the fact that he curiously criticized Democrats for including the reform in a coronavirus relief package in 2020.

While it’s far from certain whether he would prioritize marijuana banking and push for floor consideration as speaker, his votes on the legislation should give advocates reason for hope that the issue could still be advanced under a GOP-controlled House.

It seems less likely that McCarthy would proactively promote further reform, especially given his total lack of sponsorship or cosponsorships for such legislation—but banking represents a possible opening. And there are GOP members like Reps. Dave Joyce (R-OH) and Nancy Mace (R-SC) who’ve championed the issue and could apply pressure on leadership to seize the opportunity to enact the popular bipartisan reform.

Asked about GOP leadership following this month’s election, Mace told Marijuana Moment that she was “only going to support leaders who understand that my issues might be different than other members issues and that are open to working with me on a number of different fronts.

McCarthy said in 2019 that support for marijuana policy within the GOP ranks “depends what portion of [the issue] you’re talking about.” And there’s “a lot of bipartisanship” on cannabis banking reform issues.

House Majority Leader

Republicans voted earlier this month to elect Rep. Steve Scalise (R-LA) as House majority leader, and the congressman’s record shows he’s nothing if not consistent in his opposition to cannabis reform, voting against everything from legalization to banking protections.

Scalise has voted against the MORE Act and the SAFE Banking Act twice each. He’s opposed amendments to provide protections for any kind of state cannabis programs, let VA doctors issue medical cannabis recommendations, revise cannabis-related security clearance policy for federal workers and eliminate research barriers on Schedule I drugs.

Like McCarthy, he voted in favor of removing protections against universities losing federal funding for studying marijuana. He also co-sponsored a bill that included a provision to explicitly prohibit people from accessing welfare assistance at cannabis stores.

While he previously polled constituents about their views on marijuana legalization, his office has said that he’s personally opposed to the reform, in part because he believes cannabis is a gateway to more dangerous drugs.

He was among numerous Republican members of Congress who blasted Democrats over scheduling a vote on the MORE Act in 2020, dismissing the significance of the issue and arguing that it was an inappropriate time to take it up. He also criticized this year’s vote on the bill.

Scalise did vote to pass the cannabis research bill in April to simplify the process of studying the plant, helping to deliver it to President Joe Biden’s desk in the historic first.

House Majority Whip

Rep. Tom Emmer (R-MN) will serve as the House majority whip, the third highest-ranking position. While he voted against the MORE Act to enact federal legalization, Emmer has said that he thinks marijuana laws should be left up to the states and he’s supported modest cannabis reform legislation, including industry banking protections.

“I don’t have a problem—in fact, I think it’s long overdue—with the idea that you leave the criminalization issue to the states. I mean, that’s what federalism is all about,” he said in April, adding that his opposition to the MORE Act came down to disagreements about the details of the expungements provisions.

A co-sponsor of the SAFE Banking Act, Emmer has twice voted in favor of the bill. He’s further co-sponsored legislation to allow cannabis businesses to make federal tax deductions and voted for both the Medical Marijuana and Cannabidiol Research Expansion Act and the EQUAL Act to end the federal sentencing disparity between crack and powder cocaine.

Also, while in office, he’s backed amendments to protect various types of state cannabis programs from federal interference.

The congressman opposed amendments to allow VA doctors to recommend medical cannabis to veterans, however, as well as a proposal to lift Schedule I research barriers. He also supported the defeated amendment to remove spending bill language providing protections against universities losing federal funding for studying marijuana.

Emmer was absent from the recent vote on the bipartisan marijuana research bill that’s been sent to Biden.


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Democrats

House Minority Leader

House Democrats haven’t held an election for leadership in their caucus yet, but with current Speaker Nancy Pelosi (D-CA) recently announcing that she will not seek her party’s top position again, the minority vacancy is expected to be filled by pro-legalization Rep. Hakeem Jeffries (D-NY), who is actively campaigning for House minority leader.

Currently the House caucus chair, Jeffries has built a reputation for bridging partisan divides on criminal justice reform, a background that could prove especially important for marijuana issues in the 118th Congress under a GOP majority.

He sponsored a federal cannabis legalization bill in 2019, the Senate companion version of which was led by Majority Leader Chuck Schumer (D-NY), who will likely keep his top position in the chamber since Democrats held on to their majority. The Senate caucus will vote on leadership next month.

The congressman also filed a bill in April alongside GOP members Joyce and Rep. Brian Mast (R-FL) that would direct the attorney general to create a commission charged with making recommendations on a regulatory system for marijuana that models what’s currently in place for alcohol. A Senate companion was filed by Sen. John Hickenlooper (D-CO) this month.

Last year, Jeffries and Reps. Ayanna Pressley (D-MA) and Cori Bush (D-MO) also introduced the Fair and Independent Experts in Clemency (FIX Clemency) Act that’s aimed at streamlining the presidential clemency process, with supporters arguing that it could help address mass incarceration that’s been driven by punitive policies like the war on drugs.

Jeffries has co-sponsored and voted for the MORE Act and SAFE Banking Act twice each, and he’s also backed numerous amendments to provide protections for state-legal recreational, medical and CBD-only cannabis programs.

His list of co-sponsorships also includes legislation going back to 2015 to protect state medical marijuana programs, adult-use programs and expunge cannabis records, as well as a resolution to condemn the drug war.

He supported amendments to allow VA doctors to recommend medical cannabis to veterans and opposed the 2021 amendment to remove spending bill language providing protections against universities losing federal funding for studying marijuana. He also voted for the congressionally enacted cannabis research bill.

When Rep. Alexandria Ocasio-Cortez’s (D-NY) amendment to lift psychedelics research barriers was first put to a vote in 2019, he was among the Democrats who helped defeat it. But like many of his colleagues, he changed his mind and supported the next version on the floor in 2021.

Jeffries’s support for legalization is notable for advocates, but also important is his track record on bipartisan criminal justice reform issues, including those touching on drug policy.

He worked with Rep. Douglas Collins (R-GA) on a bill called the First Step Act that addressed sentencing reform and was signed into law by former President Donald Trump in 2019. He’s called for bipartisan follow-up legislation and said that cannabis legalization could be part of a “next step” for Congress.

House Minority Whip

Meanwhile, Rep. Katherine Clark (D-MA) is the favorite for the second ranking position of House minority whip, and she’s also consistently supported broad reform, including ending prohibition, while taking special interest in ensuring that military veterans are not denied home loans from the U.S. Department of Veterans Affairs (VA) just because they work in the state-legal cannabis sector.

In terms of voting records on relevant legislation, Clark’s is virtually identical to Jeffries’s, with the congresswoman supporting the MORE Act, SAFE Banking Act, state-level protections, VA reform, eliminating Schedule I research barriers and simplifying the process to carry out studies in cannabis that the White House told Marijuana Moment last week that Biden will be signing.

She’s consistently co-sponsored legalization and financial reform legislation like the MORE Act and SAFE Banking Act. And she’s been especially active in promoting cannabis reform for veterans.

She led an effort to raise attention to instances where veterans were being denied home loans because of the cannabis industry involvement, prompting VA to release a report in 2020 stating that marijuana industry work doesn’t render a person ineligible for the benefits.

In addition to leading the congressional sign-on letter, Clark introduced an amendment to a defense bill to resolve the problem, as well as standalone legislation on the issue. The House passed the amendment in 2019, but leaders in the chamber agreed to scrap it after the Senate didn’t include it in its version of the legislation. The House also passed a newer version, non-binding version of the amendment this year.

Next steps

Advocates and lawmakers have had mixed reactions to the election resulting in a divided 118th Congress. But the consensus seems to be that while Republicans taking control of the House doesn’t exactly bode well for comprehensive legalization, all hope is not lost for some level of reform advancing.

Given McCarthy’s past support for the SAFE Banking Act—in addition to the fact that it’s passed the House in some form seven times with largely bipartisan support—it seems reasonable to assume that that kind of limited reform legislation could continue to see action even with a Republican majority.

That said, the pressure is on for Democrats to make something happen with what’s left of their bicameral majority during the lame duck session, and some are more pessimistic than others about what it would mean for Congress to miss the opportunity to send something meaningful to the president over the coming weeks.

After the election, Sen. Cory Booker (D-NJ) declared that Democrats who want to enact marijuana reform must either do it “now” during the lame duck or wait until “many years from now” when his party has a shot at controlling Congress again.

Congressional talks over the so-called SAFE Plus cannabis reform package that Schumer is working to finalize have been intensifying, accordingly. And advocates are feeling increasingly optimistic about seeing action imminently.

Still, other activists are making clear that they want to see amendments to the SAFE Banking language to incorporate targeted equity provisions, arguing that it’s not enough to simply attach separate expungements provisions to the financial services reform.

On the GOP side, Mace told Marijuana Moment that she doesn’t “want us to sit on the sidelines and do nothing next session like we always have,” and Congress needs to “make sure that we’re not funding the cartels by not moving the ball forward—that we are being smart about it and saving lives.”

The congresswoman said that she hoped her GOP colleagues watched this month’s House Oversight subcommittee hearing on federal and state marijuana reform that she helped put together as ranking member. She said it underscored how the issue could be thoughtfully discussed and advanced on a bipartisan basis.

Meanwhile, as talks around SAFE Plus continue, lawmakers are still exploring additional cannabis reforms.

Rep. Jamie Raskin (D-MD) said at the recent hearing in the Oversight subcommittee that he chairs that he will soon be introducing a bill aimed at protecting federal workers from being denied security clearances over marijuana.

Sen. Jacky Rosen (D-NV) recently filed a bill that would allow state-legal cannabis businesses to access certain federal Small Business Administration (SBA) loans and services that are available to companies in any other industry.

“I hope after passing this bill the Senate can make progress on other cannabis legislation, too,” Schumer said following the marijuana research bill’s recent passage. “I’m still holding productive talks with Democratic and Republican colleagues in the House and the Senate on moving additional bipartisan cannabis legislation in the lame duck.”

“We’re going to try very, very hard to get it done,” he said. “It’s not easy, but we’re making good progress. I thank my colleagues for the the excellent work on this [research] bill and hope it portends more good cannabis legislation to come.”

The majority leader similarly said late last month that Congress is getting “very close” to introducing and passing a marijuana banking and expungements bill, citing progress he’s made in discussions with a “bunch of Republican senators.”

These developments come about a month after Biden issued a mass marijuana pardon for federal possession cases and directed an administrative review into cannabis scheduling under the Controlled Substance Act (CSA).

Meanwhile, in late September, the House Judiciary Committee approved a series of criminal justice reform bills—including bipartisan proposals to clear records for prior federal marijuana convictions, provide funding for states that implement systems of automatic expungements and codify retroactive relief for people incarcerated due to on crack-cocaine sentencing disparities.

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Image element courtesy of Tim Evanson.

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