By Reggie Babin, Akin Gump Strauss Hauer & Feld LLP
The recent reintroduction of the Secure and Fair Enforcement Banking Act is a sign that Congress has once again been working to make a significant breakthrough in federal cannabis reform. Many people have doubts about whether the current version will be different from previous versions, while others are certain that it will not.
After working for six years to advance the cannabis issue in Congress, as the lead cannabis staffer for Senate Minority Leader Chuck Schumer’s (D-NY) office, I have reason for optimism that things will be different this time around.
The Window Remains Open
Many have discussed the failure of SAFE last year and its implications for federal reform. One common opinion is that Democrats have missed their chance as the united control of federal government has slipped by without significant cannabis reforms. Democrats being more pro-cannabis reform than Republicans would suggest that a Democratic Trifecta is the best and only way to make meaningful progress. This assessment ignores some key aspects of the congressional agenda and how they interact with cannabis politics and policy.
The coalitions that are critical to the survival of the majority party and are allied to it will have much higher expectations when there is a united government. As a result of the need to satisfy the diverse constituencies that are attracted by the expansive world of possibilities, there is a cross-cutting pressure on legislative proposals. Cannabis operators and advocates were just one of dozens of groups whose hopes were either shattered or significantly reduced by the harsh realities in the legislative process.
Floor time in the U.S. Senate is a valuable commodity. Due to the Senate’s complex rules and increasing polarization, which makes each matter appear more important, even the simplest of measures can take up to a week for them be processed through the regular order. Even mildly controversial bills can take weeks to process.
It creates an environment where every decision is a decision to ignore scores of important priorities. Advocates and groups of interest are required to not only argue the merits, but also make the case for why their issue should be given priority over other worthy matters. The dynamic of this system also allows for less controversial, but equally important issues to be given priority. It is because they can be discussed under a “time accord,” which is a consensus agreement that limits time for debate and makes sure that one bill doesn’t take up weeks of floortime. Inability to reach agreements on hotly debated issues like cannabis reform is a major obstacle to moving legislation through the Senate.
This may seem counterintuitive, but divided government offers a unique opportunity. While the House and Senate are divided, progress can be made on an issue without bipartisan consensus. However, it is necessary to have meaningful bipartisan agreement. Cannabis reform is an example of a topic on which there’s agreement. The cost-benefit ratio of allocating floor time in this Congress is tilted in favor of cannabis in a manner that was not the case before. Simply put, cannabis reform has less competition for space in the congressional agenda, which allows it to be moved more quickly, especially through regular order.
A viable deal has been cut
Reformers must decide how to best take advantage of the remaining opportunity for reform. This question can be answered by the “failed attempt” to pass SAFE, in which the contours for a compromise with a real chance of Senate approval were revealed.
SAFE has undergone important changes to address Leftist concerns that historically disparities in lending could make it difficult for entrepreneurs in disadvantaged communities to access capital, even with SAFE protections. The federally-backed mortgage program now includes provisions that ensure the income of cannabis workers and operators will be considered. This is a significant pro-worker move.
The Right raised concerns about money laundering, and how to prevent illicit cash from entering the financial system. These are significant improvements which highlight the importance of going through the legislative process.
Do not be mistaken, however. The legislative process is still ongoing. The reintroduced legislation did not include any of the additional provisions included in the compromise known as “SAFE Plus”, such as the Harnessing Opportunity by Pursuing Expungement Act (HOPE) or the Gun Rights and Marijuana Act (GRAM). The Senate Banking Committee’s jurisdictional restrictions, which will determine whether SAFE is considered, were the reason for this, not a shift in strategy.
Sens. Jeff Merkley, (D-OR), and Steve Daines, (R-MT), released a joint statement when they introduced the bill confirming the opportunity to add the provisions on the Senate Floor. Leader Schumer reiterated last week, on the Senate Floor, that HOPE is an important piece of the puzzle to him and other criminal justice-minded Democrats.
The window is still open, and there is a viable solution on the table. So the question isn’t whether it will be different this time but rather what can be achieved to make sure that it is. This question will be answered largely by reform-minded activists and industry representatives who have worked to raise this issue in Washington over the years.
The right coalitions have been formed
The best advice I have received in my career so far is that your coalition will not be big enough if all members agree. Before the last Congress, there was no coalition that worked for meaningful cannabis reform inside and outside Congress. It is not possible for the cannabis industry to work together with its opponents to achieve a common goal, given that their presence in Washington is too small compared to other industries competing for federal priorities. This dynamic has changed, and I think the implications of that change are important.
A bipartisan group has been working together in Congress for over a year now to map out a way forward. They (and staff) worked hard to create a deal that would satisfy those who felt the previous versions of SAFE were insufficient, but not so much as to turn away some of its more tepid backers.
Outside, Left- and Right-wing grassroots advocacy groups have been forming partnerships to ensure the success of SAFE as well as future versions of the fight. The various trade associations that represent cannabis operators in DC of all sizes have been working together to combine their efforts and increase their collective presence to maximize their advocacy.
The main reason to be optimistic about federal cannabis reforms is the commitment of advocates. They have learned from past failures and are adapting their strategies in real-time, rather than accepting defeat and lamenting inaction. The ability of Left- and Right-wing advocacy groups to set aside differences and focus on common objectives, along with the willingness of those representing the cannabis industry, to also find common ground with these organizations, will determine the success or failure in this and future cannabis policy battles.
Reggie Babin, senior counsel at Akin-Gump Strauss-Hauer & Field LLP, is a member of the lobbying and public policy group. He offers lobbying, strategic advisory and consulting services to a wide range of clients with a focus on federal policymaking and cannabis compliance. Reggie worked for almost a decade in the U.S. Senate, U.S. House of Representatives and most recently, as Chief Counsel and Lead Cannabis Policy Advisor to Senate Majority leader Chuck Schumer (D, NY ).
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