Marijuana, the Federal Budget & the 2018 Congressional Election

Something potentially very significant to recreational cannabis regulation is happening right now in Washington.  And it would be easy to overlook.  Congress is currently working to finalize negotiations over a budget bill that would fund the federal government through September.  This is so-called “must pass legislation.”  Congress needs to approve a budget, and failure to do so leads sets off a process that leads to a government shutdown.   

Why does that matter to adult-use cannabis policy?  Because federal cannabis policy suffers from inertia.  If you polled the members of Congress, a majority would likely tell you that they aren’t happy with the status quo.  But because of the procedural rules that govern the legislative branch, potential legislation can have majority support and still not be brought to the floor for a vote.  Including language in a bill that has to pass (e.g., the budget) is a time-honored way to bypass that logjam. 

Because Congress needs to pass a budget, there needs to be a majority vote in favor in the House and Senate.  To do so requires bipartisan negotiation.  And that bipartisan negotiation provides an opportunity for the bipartisan coalition that seeks to provide greater protection and certainty for popular state-legal marijuana markets.  That is why the Rohrabacher-Blumenauer amendment withholding funding for federal criminal prosecutors at the DOJ to go after state-legal medical marijuana conduct was passed as a budget amendment.  And it’s why the McClintock-Polis amendment that would extend those protections to recreational marijuana would be styled as a budget amendment as well.

Now, some of you may be thinking back to your civics classes and wondering why Reps. McClintock and Polis don’t simply offer their popular amendment from the floor.  The answer is that the powerful House Rules Committee places limits on whether such amendments can be proposed.  In fact, in January 2018, Rep. Polis—who happens to serve on the Rules Committee—tried to include McClintock-Polis in the continuing budget resolution under consideration at the time.  But he was blocked by the majority on the Committee, led by its powerful chair, Rep. Pete Sessions. 

Which brings us to the 2018 elections.  There’s a very interesting piece about Rep. Sessions’s prospects for reelection in Politico today.  But even if Rep. Sessions ekes out a victory, he could still lose his gatekeeping role on marijuana amendments.  As an initial matter, it’s worth noting that providing protections for state-legal marijuana markets is not a partisan issue.  At present, it is not clear if Rep. Sessions will seek to maintain his chairmanship over the Rules Committee, or if another Republican could assume it.  Many Republicans favor extending state-legal marijuana protections, for example, Reps. Rohrabacher and McClintock.  As a result, if Republicans hold the House, there are many Republicans who could assume the Rules chairmanship and permit votes on these amendments. 

But one key consequence of Democrats taking the House would be the Rules Committee’s chairmanship passing to a Democrat (which Democrat is unclear, and the most senior Democrat on the Rules Committee, Rep. Louise Slaughter, passed away this week).  And that means that Rep. Sessions would no longer have the ability to stand in the way of votes on these popular measures in the House.  Those votes, in turn, would bring the issue into the spotlight and force cannabis opponents to take politically unpopular votes on the record.  Given the still growing popularity of cannabis reform, that spotlight could have a significant impact on the prospect of federal interference—the reason that reform opponents such as Rep. Sessions sought to avoid the votes in the first place.