By Reggie Snyder

In early 2020, previous to the coronavirus pandemic, hashish reform efforts had been making regular progress on Capitol Hill. By all goal metrics, 2020 was initially shaping as much as be a banner 12 months for the hashish trade at the federal and state degree. However, after the coronavirus unfold quickly throughout the nation, hashish-associated laws was largely neglected or ignored all collectively as Congress and the nation grappled with the devastating results of this new public well being disaster.

In addition to the outbreak of a world pandemic, 2020 was additionally a remarkably vital election 12 months. Democrat and former Vice-President Joseph R. Biden, Jr. was formally named the 46thPresident of the United States after defeating incumbent Republican President Donald J. Trump. The Democratic social gathering, which already had management of the U.S. House of Representatives, gained management of the Senate after securing victories in two runoff races in Georgia. So, heading into 2021, Democrats will management the U.S. presidency and each homes of Congress.

Because the coronavirus nonetheless plagues the nation, introducing and passing hashish-associated laws probably gained’t be a prime precedence on both President-elect Biden’s or Congress’ legislative agenda. To the opposite, Biden and Congress will most probably focus most of their preliminary legislative efforts on controlling the unfold of the virus and addressing the lingering financial turmoil and challenges attributable to the virus. Thus, hashish-associated laws in all probability gained’t be launched for a vote in the Senate for a number of months, except the laws is an element of a bigger legislative package deal.

This article discusses the numerous hashish-associated laws that the Democrat-controlled Congress might think about in 2021. It additionally discusses how the elementary shift in political energy on Capitol Hill impacts Democrat Sen. Chuck Schumer’s (D-NY), the majority chief of the Senate, means to introduce hashish-associated laws in the Senate for a vote, and how Vice President-elect Harris’ tie-breaking authority as the president of the Senate will probably have an effect on the final result of any such vote.[1]

The article additionally explains that, as the federal and state governments start to achieve management of the unfold of the coronavirus, the Democrat-controlled Congress will probably concentrate on, amongst different issues, introducing current hashish-associated laws (i.e., (1) the “Secure and Fair Enforcement (SAFE) Banking Act”; (2) the “Strengthening the Tenth Amendment Through Entrusting States (STATES) Act”; (3) the “Veterans Medical Marijuana Safe Harbor Act”; and (4) the “Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act of 2019”), for a vote in the Senate.

Ultimately, the article predicts that, in 2021 or early 2022, Sen. Schumer will introduce a number of current hashish-associated payments (probably at the very least the SAFE Banking Act and the MORE Act) for a vote in the Senate. It additionally explains why, regardless of the proven fact that Democrats have a majority in the Senate, Democratic lawmakers will nonetheless probably want to steer at the very least 10 Republican Senators to assist it to keep away from having the invoice defeated by filibuster. And, the article explains why President-elect Joe Biden will probably signal any hashish-associated laws that passes the Senate into legislation.

I. WHICH PIECES OF CANNABIS-RELATED LEGISLATION WILL THE DEMOCRAT-CONTROLLED SENATE LIKELY PUT UP FOR A VOTE? 

Cannabis Banking Legislation: Prospects for passing laws that will make it simpler for marijuana companies to entry banking providers rise considerably with Democrats in management of the Senate.[2]The SAFE Banking Act enjoys broad bipartisan assist: It handed the House with assist from almost half of the chamber’s Republicans on board, and 5 GOP senators co-sponsored the invoice in the final Congress.[3]But, former Republican senate majority chief Mitch McConnell’s (R-KY) reluctance to carry any marijuana payments to the flooring for a vote hamstrung its means to advance.[4]

Marijuana Legalization: The greatest query mark is whether or not the Democrat-controlled Senate can move complete adjustments to federal marijuana coverage, together with eradicating federal penalties round marijuana use and possession, regulating a brand new trade and expunging previous marijuana-associated legal data.[5]Sen. Schumer has beforehand promised {that a} Democratic-controlled chamber will attempt to move sweeping adjustments.[6]In this regard, Sen. Schumer has made legalization a part of his legal justice reform priorities.[7]The House has already handed the MORE Act, which might take away federal penalties and expunge data.[8]The Democrat-controlled Senate is anticipated to carry the MORE Act up once more in the 117th Congress.[9]

Medical Marijuana Research: This hashish-associated laws has the broadest assist, and payments increasing hashish analysis handed each the Senate and House unanimously final 12 months.[10]That means the situation was more likely to acquire traction no matter which social gathering ended up with management of the Senate, although it’s unlikely to be a precedence for both social gathering.[11]The laws additionally might turn out to be moot by government department adjustments—the Veterans Affairs and Justice departments already can broaden analysis with out an act of Congress.[12]

Key Committees and Lawmakers: With Democrats in management of the Senate, a majority of committee chairs will probably be in the fingers of lawmakers from states with authorized leisure marijuana — together with Senators from Oregon and Illinois, and each Senators from Washington state, Michigan and Vermont.[13] 

A key committee will probably be the Senate Finance Committee the place the MORE Act was referred in the final Congress.[14]It probably will probably be chaired by Sen. Ron Wyden (D-Ore.), who stated in 2020 that legalizing hashish and finding out taxation and regulation of the trade will probably be on his agenda over the subsequent 12 months.[15]

A key lawmaker is Sen. Dick Durbin of Illinois, who gained a bid to exchange California Sen. Dianne Feinstein as the prime Democrat on the Senate Judiciary Committee.[16]That Committee might play a big position in efforts to move complete adjustments to federal hashish coverage.[17]

II. VICE PRESIDENT-ELECT HARRIS AND SEN. SCHUMER ARE STRONG ADVOCATES AND SUPPORTERS OF MARIJUANA LEGALIZATION

Vice President-elect Kamala Harris, a Democrat, will now preside over Senate deliberations as the president of the Senate.[18]In this position, she could have the duty of casting the tie-breaking vote on any laws in which the Senate votes are evenly break up, which is a really actual risk given the present 50-50 Democrat to Republican make-up of the Senate.[19]Vice President-elect Harris’ tie-breaking energy successfully offers Democrats management of the Senate for the first time since 2014.[20]Democrats may also management the committees, the laws, and nominations which can be delivered to the Senate flooring—an influence that beforehand belonged to Republican Senate majority chief Sen. Mitch McConnell (R-KY).[21]

Vice President-elect Harris’ tie-breaking authority will probably be an vital benefit for Democrats as they introduce hashish-associated laws in the Senate. It is a properly-recognized proven fact that she strongly helps marijuana legalization.[22]She was the lead sponsor in the Senate of the MORE Act, a invoice that Sen. Schumer additionally sponsored.[23]She was additionally one among the authentic co-sponsors of Senator Cory Booker’s Marijuana Justice Act, the first legalization invoice that tried to border legalization in the broader context of racial and social justice.[24]She not solely signed on to the laws, however she publicly campaigned for its passage and turned an outspoken proponent in the media.[25]She was additionally a champion of the hashish trade throughout her tenure in the Senate, most prominently as a co-sponsor of the SAFE Banking Act.[26]In early 2020, she implored Senate leaders to permit hashish companies to be eligible for crucial coronavirus reduction funding out there to most small companies throughout the pandemic, even utilizing her social media presence in assist of the measure and highlighting that hashish companies make use of 240,000 Americans whose livelihoods rely on these jobs.[27]

In addition to Vice President-elect Harris, Sen. Schumer, the Democratic social gathering majority chief of the Senate, additionally strongly helps marijuana legalization. He was the chief sponsor of the MORE Act.[28]He has additionally talked about hashish reform for a number of years, and all through 2020, he raised the situation incessantly.[29]He additionally tweeted about the situation a number of occasions, and he hosted Facebook dwell conversations with lawmakers, together with Rep. Hakeem Jeffries (D-N.Y.), about legalizing marijuana.[30]Because Sen. Schumer will get to determine which items of laws get launched for vote in the Senate, he presumably will introduce hashish-associated laws for vote, probably together with the MORE Act (the laws he personally sponsored) and the STATES Act. Indeed, in October 2020, he boldly acknowledged that he’ll put his personal de-scheduling invoice “in play” and that “I think we’ll have a good chance to pass it.”[31]

Given the mixed power and assist of Vice President-elect Harris and Sen. Schumer, it’s extremely probably that hashish-associated laws will probably be launched in the Senate for a vote in both 2021, or in early 2022. Whether they are going to be capable to safe sufficient votes from their Republican counterparts in the Senate to keep away from a filibuster will probably decide whether or not the proposed laws is handed.

III. HOW CAN THE DEMOCRAT-CONTROLLED SENATE AVOID OR OVERCOME FILIBUSTERS OF CANNABIS-RELATED LEGISLATION IN THE SENATE?

Even with a Democrat-controlled Senate, securing the votes essential to move hashish-associated laws in the Senate will nonetheless probably be troublesome.[32]The Senate cloture rule requires 60 members to finish debate on most matters and transfer to a vote.[33]While Senate guidelines nonetheless require only a easy majority (51 votes) to really move a invoice, a number of procedural steps alongside the manner require a supermajority of 60 votes to finish debate on payments.[34]

In the Senate, it would nearly actually require 60 votes to maneuver any hashish-associated laws, that means there’ll have to be vital buy-in from Republicans.[35]Moderate Democrats corresponding to Sen. Joe Manchin of West Virginia aren’t assured allies, and professional-legalization Republicans can’t be counted on to vote for a invoice as progressive as the MORE Act.[36]Just 5 Republicans backed the invoice in the House.[37]

A. What is a Cloture Motion in the Senate?

Senators have two choices after they search to vote on a measure or movement.[38]Most usually, the majority chief (or one other senator) seeks “unanimous consent,” asking if any of the 100 senators objects to ending debate and shifting to a vote.[39]If no objection is heard, the Senate proceeds to a vote.[40]If the majority chief can’t safe the consent of all 100 senators, the chief (or one other senator) sometimes recordsdata a cloture movement, which then requires 60 votes to undertake.[41]If fewer than 60 senators—a supermajority of the chamber—assist cloture, that’s after we usually say {that a} measure has been filibustered.[42]

IV. Can the Democrat-Controlled Senate Use the “Nuclear Option” to End Filibuster Debates on Cannabis-Related Legislation?

The “nuclear option” is a parliamentary process that permits the Senate to override a standing rule of the Senate, corresponding to the 60-vote rule to shut debate, by a easy majority of 51 votes, reasonably than the two-thirds supermajority usually required to amend the guidelines.[43]The choice is invoked when the majority chief raises some extent of order that contravenes a standing rule, corresponding to that solely a easy majority is required to shut debate on sure issues.[44]The presiding officer denies the level of order primarily based on Senate guidelines, however the ruling of the chair is then appealed and overturned by majority vote, establishing new precedent.[45]

This process makes use of Rule XX to permit the Senate to determine any situation by easy majority vote, no matter Rule XXII, which requires the consent of 60 senators (out of 100) to finish a filibuster for laws and 67 for amending a Senate rule.[46]

In November 2013, Senate Democrats, led by Harry Reid, used the nuclear choice to get rid of the 60-vote rule on government department nominations and federal judicial appointments.[47]In April 2017, Senate Republicans led by Mitch McConnell prolonged the nuclear choice to Supreme Court nominations in order to finish debate on the nomination of Neil Gorsuch.[48]

However, as of January 2021, a 3-fifths majority vote remains to be required to finish debates on laws.[49]So, Senate Democrats will nonetheless probably have to persuade at the very least 10 Republican Senators to agree on laws to keep away from or finish a filibuster and get the invoice handed.

V. DOES PRESIDENT-ELECT BIDEN SUPPORT MARIJUANA LEGALIZATION?

While on the marketing campaign path, President-elect Biden stated that his administration will pursue marijuana decriminalization and expungements for individuals with prior hashish convictions.[50]He additionally stated that he favors legalizing medical hashish (versus leisure hashish), modestly rescheduling marijuana underneath the federal Controlled Substances Act, and letting states set their very own insurance policies relating to regulating the hashish trade inside their respective borders with out federal intervention.[51] 

It can be vital to keep in mind that President-elect Biden will probably be joined by Vice President-elect Harris when he enters the Oval Office, and as mentioned above, she is a powerful supporter of marijuana legalization. After being chosen by President-elect Biden to function his Vice President, Harris stated she struck a “deal” with Biden that she can be allowed to candidly share her perspective on a spread of progressive insurance policies he at present opposes, together with legalizing marijuana, however she hasn’t indicated that she would proactively push him in that route.[52]

So, it at the very least seems that President-elect Biden is supportive of marijuana reform and would at the very least critically think about signing hashish-associated laws that passes the Senate, significantly the STATES Act and the MORE Act. And, given Vice President-elect Harris’ and Sen. Schumer’s sturdy assist of marijuana legalization, the odds are that President-elect Biden would signal any such invoice into legislation.

VI. CONCLUSION

What was set to be a banner 12 months for the hashish trade on each the federal and state degree in early 2020 was considerably disrupted and slowed down by the coronavirus pandemic, nationwide protests for equality and social justice, and the 2020 presidential election. In 2021, marijuana reform probably gained’t occur instantly. President-elect Biden and Congress will most probably focus most of their preliminary legislative efforts on attempting to regulate the unfold of the virus and on addressing the lingering financial turmoil and challenges attributable to the virus. Accordingly, it would probably be months earlier than any hashish-associated legislative proposals get critical consideration in the Senate, except they’re half of a bigger package deal.

However, the excellent news is that, with the Democrats in management of the U.S. Presidency and each homes of Congress, marijuana reform at the federal degree is nearer than ever to changing into a actuality. Cannabis-related laws subsequently will undoubtedly regain its preliminary momentum in the Senate, which can result in the introduction and passage of a number of hashish-associated payments. Indeed, Sen. Schumer will nearly actually introduce the SAFE Act (which was sponsored by Vice President-elect Harris) and the MORE Act (which he sponsored personally) for a vote in the Senate.

In the Senate, Sen. Schumer, in his position as majority chief of the Senate, has the energy to determine which payments will probably be launched for vote, together with hashish-associated laws. And, Vice President-elect Harris, in her position as the president of the Democrat-controlled Senate, has the energy to interrupt any tie vote which, in the case of hashish-associated laws, she would nearly actually all the time break any such tie by voting in favor of passing the invoice.

Senate Republicans, nevertheless, nonetheless have the choice of filibustering any hashish-associated laws that Sen. Schumer introduces. To stop Senate Republicans from using this tactic, Senate Democrats might want to persuade at the very least 10 of their Republican colleagues to approve the invoice. That will probably be a tall order given the present political tensions between members of the two events in Congress, nevertheless it’s not fully exterior the realm of risk. For occasion, throughout the 2020 election, voters in a number of Republican and swing states authorised hashish-associated poll measures on Election Day. Sen. John Thune (R-SD), the social gathering’s whip, now represents constituents in South Dakota who voted to legalize each leisure and medical marijuana by strong margins.[53]

Sometime this 12 months, or in early 2022, I predict that Sen. Schumer will introduce the SAFE Banking Act and/or the MORE Act in the Senate for a vote. If the invoice made it to a full Senate vote, the vote would probably be break up nearly fully down social gathering strains with the 50 Democrat Senators voting in favor of the invoice, and the 50 Republican Senators voting in opposition to. Vice President-elect Harris would then break the tie vote by voting in favor of the invoice. However, earlier than a full Senate vote even occurs, a number of of the Republican Senators, probably led by minority chief Sen. Mitch McConnell (R-KY), will probably filibuster the invoice till it dies. Thus, the willpower of whether or not any hashish-associated laws ever passes the Senate will largely rely on whether or not Democrats are capable of persuade at the very least 10 Republican Senators to assist to invoice to keep away from having the invoice defeated by a filibuster.

If the laws ever passes the Senate, I predict that President-elect Biden will signal it into legislation, which can really be a watershed second for the hashish trade that I imagine will finally profit the total nation.

 

Reggie Snyder is a associate in the Atlanta workplace of Taylor English Duma LLP. Snyder is an skilled trial lawyer with greater than 20 years of expertise managing a variety of litigation issues for shoppers in Alabama, Georgia and Texas.

 

 

[1]Former Senate majority chief Sen. Mitch McConnell (R-KY) repeatedly refused to introduce the overwhelming majority of hashish-associated laws for a vote, apart from the occasional invoice associated to hashish analysis.

[2]Id.

[3]Id.

[4]Id.

[5]Id.

[6]Id.

[7]Id.

[8]Id.

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[13]Id.

[14]Id.

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[16]Id.

[17]Id.

[18]Id.

[19]Id.

[20]Id.

[21]Id.

[22]See https://www.forbes.com/websites/kriskrane/2020/08/19/a-vp-kamala-harris-will-lead-to-marijuana-legalization/?sh=412bc8741e35

[23]Id.

[24]Id.

[25]Id.

[26]Id.

[27]Id.

[28]See https://www.politico.com/information/2021/01/08/senate-democrats-marijuana-legislation-456074

[29]Id.

[30]Id.

[31]See https://www.marijuanamoment.web/what-joe-bidens-presidential-victory-means-for-marijuana-in-2021/

[32]Id.

[33]See https://www.brookings.edu/coverage2020/votervital/what-is-the-senate-filibuster-and-what-would-it-take-to-get rid of-it/

[34]Id.

[35]See https://www.politico.com/information/2021/01/08/senate-democrats-marijuana-legislation-456074

[36]Id. Unfortunately, the most vocal GOP advocate for marijuana reform in the Senate, Sen. Cory Gardner (R-CO), misplaced his reelection bid in 2020.

[37]Id.

[38]See https://www.brookings.edu/coverage2020/votervital/what-is-the-senate-filibuster-and-what-would-it-take-to-get rid of-it/

[39]Id.

[40]Id.

[41]Id.

[42]Id.

[43]See https://en.wikipedia.org/wiki/Nuclear_option#cite_note-5 (The time period “nuclear option” is an analogy to nuclear weapons being the most excessive choice in warfare.)

[44]Id.

[45]Id.

[46]Id.

[47]Id.

[48]Id.

[49]Id.

[50]See https://www.marijuanamoment.web/what-joe-bidens-presidential-victory-means-for-marijuana-in-2021/

[51]Id.

[52]Id.

[53]Id.



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