Midterm elections and marijuana: Part I, US Congress
By Rick Schettino
Oct 31, 2018
Over the next few days, PotNetwork will be taking a look at some of the dynamics of the midterm elections as they pertain to the possibility of ending prohibition and legalizing marijuana on a federal and state level, as well as the potential impact of some of the more interesting local measures. This week we’ll take a look at how the House and Senate races are firming up and what a potential takeover of the house by Democrats would mean for the success of federal cannabis reform legislation.
Many of the top stakeholders in the marijuana space believe that federal prohibition of marijuana is on the ropes. Some might even say it’s down for the count. But until both branches of Congress deliver the one-two punch and send legislation over to the White House, it’s not a good bet to start starting counting the prohibitionists out. Even then, there are no guarantees of a knockout until this, shall we say, unpredictable President’s pen hits the paper.
Will this election cycle deliver the knockout punch and be the catalyst for ending federal prohibition? The fight is coming down to the will of the people vs. the will of Congress.
The will of the people
It’s common knowledge now that a good majority of Americans are in favor of ending federal prohibition. In fact, the percentage of supporters has no less than doubled since 2000.
Just this month, two of the country’s top polling organizations, Gallup and Pew Research Center, both released surveys which show that Americans are in favor of legalization by a margin of two to one. And Gallup’s numbers, released Monday, put support at 69 percent — up two percent over last year’s figure.
For public opinion to be swayed so drastically and so quickly on any major issue, the argument must be uncommonly persuasive. It has, in fact, been persuasive enough to convince lawmakers in 30 states to subvert federal law and create regulated markets for medical marijuana. And today there are nine U.S. states, plus Washington D.C. which allow recreational use of marijuana by adults.
But as persuasive as the argument is for legalization, regulation, and taxation, there are still many Washington lawmakers who refuse to listen to reason. Although there are holdouts on the left, most of the opposition is coming from the nation’s right flank.
While the left seems to be onboard in numbers sufficient to pass legislation to end prohibition, the right, too, is starting to approach the tipping point. While Pew’s poll shows a majority of Republicans still opposing legalization, Gallup’s numbers show a Republican majority with 53 percent in favor. This is the first time any poll worth its salt has showed a majority of Republicans in favor of repealing prohibition.
Furthermore, a whopping 71 percent of independents and three out of four Democrats support legalization. Older Americans, too, are on board with 59 percent of elderly citizens now in agreement with 78 percent of 18-to-34-year-olds.
The fast-evolving poll numbers are evidence that this county is near, if not past, a tipping point. If the number of states willing to buck the feds of the issue is any indication, it’s truly only a matter of time before prohibitionists hit the canvass for the full count.
“There are not many issues out there that enjoy majority support among both of the major political parties and in every region of the country. This support is consistently translating into wins at the ballot box, and it should further motivate elected officials to take action at the state and federal levels. Hopefully, lawmakers are paying attention to this clear trend in public opinion. If they ignore these poll numbers, they do so at the risk of seeing a drop in their own.” ~ Hawkins, Marijuana Policy Project.
One of the factors which is influencing public opinion the most is media coverage of state elections in which marijuana legalization initiatives have come into play. In the 2016 elections, California, Massachusetts, Nevada, and Maine approved recreational marijuana, while Florida, North Dakota, Arkansas, and Montana passed medical marijuana laws. The story of how marijuana swept the elections made front-page headlines and opened a lot of eyes to the fact that a majority of Americans now live in states where cannabis is legal in one form or another.
There are also outside factors which are accelerating acceptance of cannabis by Americans, not the least of which is the recent launch of legal marijuana by our closest neighbor and ally, Canada. Mexico’s president-elect, too, Andrés Manuel López Obrador expressed his support for legalizing marijuana. His administration takes its seats on December 1. If both Canada and Mexico have legalized marijuana, that puts some serious peer pressure on the U.S. Congress to do the same.
The will of the leaders
In America, the whole point of our representative democracy is that we don’t follow our leaders, we expect them to follow us. And if they don’t follow us, they don’t have our vote. It’s that simple. The process just takes time to propagate upward. Where once there were only pockets of resistance to prohibition, today legal cannabis advocates are on the verge of having enough support from Washington lawmakers to put a bill onto the president’s desk. Furthermore, the president has pledged to support Congress if it decides to end prohibition.
Before we look at the marijuana bills, it’s worth mentioning that a rather substantial piece of legislation, the 2018 Farm Bill, includes language that would remove hemp from the DEA’s list of controlled substances and put the onus of regulating the plant onto the individual states. Hemp is the non-intoxicating version of cannabis which is, for all intents and purposes devoid of the offending THC molecule. Congress is still wrestling with some points in the bill which are unrelated to the hemp measure, but the bill is expected to be ready for the president’s signature before year’s end.
The passage of the Farm Bill and subsequent legalization of hemp is kind of a big deal for the cannabis industry because it throws gasoline on the raging CBD market (the non-intoxicating, hemp-derived active compound in cannabis), it also helps to greatly increase public acceptance of cannabis and, ultimately, acceptance of marijuana.
Hemp bills aside, there are a number of pieces of marijuana legislation floating around the Hill. The problem is not a lack of legislation. The problem is that the Republican controlled congress has not shown any inclination to bring it to the floor for a vote.
That could change if the Democrats can take back the House. Although most polls suggest that taking the Senate is not in the cards this election cycle, taking control of the House is quite feasible.
The STATES Act, a bipartisan effort which was initially co-sponsored by Sen. Cory Gardner (R-CO) and Sen. Elizabeth Warren (D-MA), is gaining supporters and currently has 10 additional co-sponsors. The measure seeks to block the federal government from interfering in state-approved cannabis programs.
Sen. Warren, who is up for re-election, has been a leader in advancing medical marijuana policy in the Senate. She faces a Republican opponent who has fought against the legalization of marijuana as a state representative. Fortunately, polls show Warren is enjoying a 26-point lead.
Gardner, who opposed marijuana legalization in his home state of Colorado back in 2012, changed his tune after Attorney General Jeff Sessions revoked the “Cole memo.” In a move designed to protect his state’s cannabis industry, Gardner led a blockade of DOJ nominees. His persistence resulted in President Trump agreeing to support the STATES Act. Gardner is not up for re-election until 2020.
The real impasse is in the Senate. Back in May, Republican Majority Leader Mitch McConnell, who controls the upper chamber’s agenda said publicly, “I don’t have any plans to endorse the legalization of marijuana.”
Senate Minority Leader Chuck Schumer, who has not historically been an advocate for marijuana reform, has come around as of late. Schumer introduced the Marijuana Freedom and Opportunity Act, another bill aimed at legalizing marijuana at the federal level.
Schumer acknowledges that it will be difficult for Democrats to wrest control of the Senate this election cycle. There are 25 Democrats up for re-election and only eight Republicans. Worse, many of the Democrats up for reelection come from states where Donald Trump won by more than 20 points. Schumer is, however, confident that the tide is turning.
Gaining ground on Capitol Hill is not necessarily a matter electing pro-cannabis candidates at this point. Given the immense public support, a sensible cannabis bill would likely pass. The path to repealing prohibition is a matter of swinging the House and Senate from Republican-controlled to Democrat-controlled. And although Republicans in the Senate are likely to hold their ground, swinging the House might just be enough to tip the scales.
There is one particular Senate race which could go either way. In Texas, pro-marijuana candidate Beto O’Rourke is challenging incumbent Republican and prohibitionist Ted Cruz. An O’Rourke victory would not only put Democrats one seat closer to their goal of controlling the Senate; it would add another vociferous pro-marijuana voice to the roll. O’Rourke, with the help of Willie Nelson, has banked more than $23 million in his quest to oust Cruz. And back in August an Emerson College poll called the race a dead heat. But Cruz has since put pressure on voters by posting a DWI mug shot of a long-haired O’Rourke from 1998 when he played bass in a punk-rock band. Most pundits now see a likely Cruz victory.
Will the Democrats take the House and pass prohibition-busting legislation? Probably. But the question of whether or not the Senate will cave in some time in the next couple of years and allow serious debate on cannabis reform is a lot harder to answer with certainty.
Historically, midterm elections in the U.S. have not enjoyed substantial voter participation, and past midterms have typically attracted more Republicans than Democrats. Recent polls, however, suggest that voter participation could hit a new record on November 6. In the current political climate, anything is possible.