Congressional Committee Will Vote On Protecting State Marijuana Programs From Federal Interference On Tuesday

A key congressional committee will vote on an amendment to protect all state, territory and tribal cannabis programs from federal interference on Tuesday, multiple congressional offices tell Marijuana Moment.

Rep. Barbara Lee (D-CA) will be filing the amendment during a House Appropriations Committee markup of the Fiscal Year 2023 spending legislation for Commerce, Justice, Science, and Related Agencies (CSJ).

Lee and other pro-reform lawmakers such as Reps. Earl Blumenauer (D-OR), Eleanor Holmes Norton (D-DC) and Tom McClintock (R-CA) had urged congressional leaders to include the broad protections in the base appropriations bill, but that did not come to fruition, despite the bipartisan request.

Now they will again seek to add provisions—which would prevent the Justice Department from using federally appropriated dollars to interfere in the implementation of state, territory and tribal cannabis laws—at the committee level.

Blumenauer, Lee, Holmes Norton and McClintock and 44 other congressional colleagues recently sent a letter to calling on the chairman and ranking member of an appropriations subcommittee to address the issue through the must-pass legislation.

In general, the proposed provisions would block “the Department of Justice from prosecuting those who comply with their state or tribal marijuana laws,” the lawmakers wrote.

A congressional source told Marijuana Moment that the amendment language that will be filed for Tuesday’s markup will closely resemble the language requested in the language to appropriations leadership.

The requested state and territory section read as follows: 

“None of the funds made available by this Act to the Department of Justice may be used, with respect to any of the States, the District of Columbia, or U.S. territories to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of marijuana.”

A narrower rider preventing DOJ only from using its federal funds to interfere in the implementation of medical cannabis legalization has been annually renewed since 2014, but the lawmakers have been pushing for broader protections in the CJS appropriations measure.

After the base CJS bill was released last week without the broader protections language, Blumenauer told Marijuana Moment in a phone interview that it “should be not a heavy lift.”

“It makes so much sense to have the federal government not interfere,” he said. “The principle has been embraced. It should be low-hanging fruit.”

“Politically, this is something that—it’s not just Democrats, there are a number of Republicans that support this concept,” the congressman said. “I’m disappointed. And that’s another thing we’re working on.”

In 2019 and 2020, the House attached the sweeping state and tribal protections to its version of the appropriations legislation as amendments adopted on the floor, but they’ve yet to be incorporated into any final package enacted into law. CJS legislation didn’t end up making it to the floor in 2021, but supporters had planned an amendment that year as well.

In general, Democratic members have broadly supported the broad state protections language as amendments, while most Republicans have opposed it—with key exceptions.

Among Appropriations Committee members on the GOP side, Rep. Mark Amodei (R-NV) voted against the amendment in 2019, but changed his vote to an “aye” in 2020, for example. Rep. Dave Joyce (D-OH), a co-chair of the Congressional Cannabis Caucus, voted in favor of the protections both times, as did Rep. Dan Newhouse (R-WA). Rep. Guy Reschenthaler (R-PA) supported the amendment in 2019 but missed the vote in 2020.

Among Democrats, Rep. Matt Cartwright (D-PA) voted in favor of the amendment in 2019, but changed his vote to a “no” in 2020. Rep. Debbie Wasserman Schultz (D-FL) voted against the measure in 2019 before flipping to a “yes” vote in 2020. Rep. Henry Cuellar (D-TX) voted against the measure both times.

Democrats have a 33-26 majority on the panel, and advocates expect that the amendment will have more than enough support to be adopted at the committee level this year, avoiding the need for a vote on the issue when the bill gets to the House floor.

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“With bipartisan support, the committee should absolutely include this practical improvement to the existing DOJ spending policy to protect the 45 percent of Americans who have access to state-legal marijuana programs,” Justin Strekal, founder of the BOWL PAC, told Marijuana Moment. “Any one appropriator who opposes this amendment is anti-freedom and pro-government waste.”

(Disclosure: Strekal supports Marijuana Moment’s work through a monthly pledge on Patreon.)

Blumenauer testified before the CJS appropriations subcommittee during a members day in April, describing his request for the inclusion of the cannabis language as his “top priority” in the bill this year.

“States from coast to coast—across the political spectrum, red and blue have—have taken meaningful action to end prohibitory policies and allow the development of both adult use and medical marijuana programs,” the congressman said. “The federal government should not interfere with these programs and the will of the voters.”

He also cited remarks from Attorney General Merrick Garland, who has said on multiple occasions that he believes prosecuting people over cannabis is a waste of Justice Department resources. The top prosecutor also recently disclosed to Sen. Brian Schatz (D-HI) that DOJ would be addressing cannabis issues “in the days ahead.”

The recent letter to appropriators also asks that the tribe-specific language be included in the base bill for Fiscal Year 2023.

This is what was proposed for tribal-specific cannabis protections: 

“None of the funds made available by this Act to the Department of Justice may be used to prevent any Indian tribe (as such term is defined in section 4 of the Indian Self Determination and Education Assistance Act (25 U.S.C. 5304)) from enacting or implementing tribal laws that authorize the use, distribution, possession, or cultivation of marijuana.”

Language along those lines will also be folded into the amendment going before the full committee on Tuesday, sources said.

In past years, the House has approved language on protections for tribal marijuana programs as floor amendments.

Similar language on tribal cannabis protections for cannabis programs was included in a separate appropriations base bill that was released this month, though it included a caveat that laid out guidelines for eligibility for those protections. For example, tribes located in states where marijuana hasn’t yet been legalized would not be eligible.

In a related development, a Senate committee recently held a listening session that explored cannabis issues for Native Americans, touching on areas such as tribal sovereignty in the marijuana space, agreements with state governments and taxation.

A coalition of nine U.S. senators also sent a letter to Attorney General Merrick Garland in March, urging him to direct federal prosecutors to not interfere with marijuana legalization policies enacted by Native American tribes.

Meanwhile, there have been numerous drug policy provisions included in other appropriations bills and attached reports that have been released over recent weeks.

For example, House Appropriations Committee leaders are calling for a federal review of psilocybin policy, utilizing hemp as an alternative to Chinese plastics and letting researchers study marijuana from dispensaries in new spending bill reports.

There are other notable cannabis provisions that have been included in recently released spending bills and attached reports, including one submitted last week that encourages sports regulators to push international officials to “change how cannabis is treated” when it comes to suspending athletes from competition over positive tests.

The FSGG report also more broadly addresses drug testing requirement for federal workers, as previous versions have done in the past. But this time, there’s a new line that specifically urges the executive branch to apply drug testing standards with “consistency and fairness.”

Meanwhile, in an education spending bill, there’s again a section that would prevent the Department of Education from penalizing universities simply because the institutions are conducting research into marijuana.

The House Appropriations Committee also released other spending bills and reports last week, with lawmakers pushing multiagency coordination to create guidance on hemp manufacturing, better guidance on the marketing of CBD, updates on research into medical marijuana for veterans and investigations into “alternative treatments” for post-traumatic stress disorder (PTSD) such as psychedelics.

Those provisions came out of Fiscal Year 2023 spending legislation for Agriculture, Rural Development, Food and Drug Administration (FDA), and Related Agencies, as well as Military Construction, Veterans Affairs (VA), and Related Agencies.

Another set of spending bills and reports that were recently released call for protections for immigrants who use cannabis, freeing up marijuana-related advertising and providing the industry with access to the banking system.

Importantly, it remains to be seen whether the Senate will accept any of the House-led cannabis and drug policy proposals. Senate appropriators have not yet released their spending bills for FY23, and typically wait until after the House has acted, so it’s not yet clear which issues will ultimately get reconciled by the two chambers and adopted into law.

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Photo courtesy of Brian Shamblen.