One Easy Step to Legalize Cannabis
Jim Higdon
9 September 2021

There’s a new bill in the U.S. Senate to legalize cannabis at the federal level, called the Cannabis Administration and Opportunity Act (CAOA), introduced by U.S. Sens. Cory Booker (D-NJ), Ron Wyden (D-OR), and Senate Majority Leader Chuck Schumer (D-NY). This bill wouldn’t merely legalize cannabis. It would also begin to repair the injustices of the drug war by investing tax revenue into communities most affected by decades of anti-drug enforcement, especially communities of color.

The CAOA—and a comparable bill in the House, the Marijuana Opportunity Reinvestment and Expungement Act (MORE) Act—make a lot of sense, and its sponsors deserve credit for getting them this far. The MORE Act already passed the House last year, on a bipartisan vote of 228 to 164.

But here’s the cold reality: these bills have no chance of passing without 60 votes in the Senate. And no matter how you count, there just aren’t 10 Senate Republicans willing to acknowledge the damage done by the drug war upon communities of color. That sad fact basically dooms these bills from reaching the president’s desk.

For all the credit these senators deserve for raising awareness of cannabis legalization as an issue worth prioritizing, that might be all these bills accomplish. Trying to pass cannabis reform through a standalone bill is a fool’s errand in a dysfunctional Congress.

Despite the widespread popularity of cannabis legalization, the prohibition establishment just has too many levers to pull in a Senate dominated by old white men. But that’s OK, because the next opportunity to legalize cannabis is just around the corner. If done correctly, it will be much more difficult to stop.

Here is how to legalize cannabis in one (relatively) easy step.

The Background

I am a former cannabis journalist who is now co-founder of a CBD brand, so I understand this situation. Before co-founding Cornbread Hemp, I covered cannabis policy for outlets like POLITICO from Capitol Hill to the deserts of Nevada.

Before working for POLITICO, I followed this issue from my home state of Kentucky, where hemp was legalized in 2013. The passage of hemp legislation through the Kentucky legislature laid the foundation for U.S. Sen. Mitch McConnell (R-KY) to join forces with Wyden to legalize hemp at the federal level.

These two senators don’t agree on much, but they found common ground on hemp. And both these senators are savvy enough to understand that a standalone bill to legalize hemp wouldn’t stand a chance in the Senate. Instead, they tucked a one-page “hemp pilot program” into that year’s Farm Bill to legalize hemp on an experimental basis.

What is the Farm Bill?

The Farm Bill is a giant document passed every five years or so that sets the priorities for the entire U.S. Department of Agriculture. It weaves its way through the House Agriculture Committee and the Senate Committee on Agriculture, Nutrition, and Forestry to become a multi-hundred-page bill that covers everything from farming subsidies to food programs for low-income families.

By tucking a one-page pilot program into the massive Farm Bill, McConnell and Wyden prevented the usual fights that come along with passing standalone legislation. It was a clever move that comes from a sophisticated understanding of how the legislative process works.

Four years later, it was the same song with a different verse. The same bipartisan coalition of senators used the same procedure to legalize hemp for good: not through a standalone bill, but through the 2018 Farm Bill. In the grand scheme, it was a small step toward full cannabis legalization by making the hemp-derived cannabidiol (CBD) industry a reality.

That’s a big deal because it gives a roadmap on how to fully legalize cannabis in the very near future if we think about hemp as a first step toward full cannabis legalization. Because today, the entire prohibition of cannabis hangs by a single thread—one line in the Farm Bill that defines hemp as cannabis with not more than 0.3% delta-9 tetrahydrocannabinol (THC).

That means that Congress can simply change the definition of hemp in the next Farm Bill by raising that cap on THC from 0.3% to 5%. Or 20%. Or they could eliminate the THC cap entirely and make cannabis completely legal. It’s that simple.

The social and racial justice aspects of the CAOA and the MORE Act are good and right. There will be advocates that don’t want to legalize cannabis through the Farm Bill because standalone bills like the MORE Act are the best ways at getting the social justice components made into law. But there aren’t 60 votes in the Senate for those bills, so advocates for legalization must prepare for another path forward.

How Do I Know This? 

Because I have done the work. By 2018, I had been a cannabis journalist for a decade. From that work, I understood that there were opposing forces inside the pro-cannabis legalization movement.

On one hand, there are advocates who argue that the only way to legalize cannabis is to acknowledge the damage done to communities of color. On the other hand, there’s another group of advocates (mostly white men who consider themselves to be libertarians) who just want to legalize cannabis without dealing with the profound social consequences of prohibition. These groups generally agree that cannabis should be legal, but when reform advocates push for social and racial justice, it makes the libertarians nervous.

In 2018, as the Farm Bill was set to legalize hemp, these two factions faced off on Capitol Hill. The problem: a provision had been added to the Farm Bill that instituted a lifetime ban on anyone with a drug crime felony on their record.

That drug crime felon ban was poised to be a huge step backward for criminal justice reform at a time when activists were advocating for drug crime felons to receive priority placement in the cannabis and hemp industries, not locked out completely. I pitched this story to my editor at POLITICO, and he gave me the green light to report it.

On assignment for this story, I left Washington, D.C. for my home state of Kentucky to interview the CEO of a hemp company that had opened an office in Kentucky. This CEO had a felony on his record. But here’s the catch—his felony did not ban him from participating in the about-to-be-legal hemp program because his crime was for Medicare fraud, not drug crimes.

In my story, “Racial Justice and Legal Pot are Colliding In Congress,” I reported on this proposed lifetime felon ban for the hemp program. And in the Farm Bill’s final draft, the felon ban was reduced to 10 years—a modest victory for social justice reformers.

I share this story to illustrate that the social justice aspects of legalizing cannabis are absolutely essential to full cannabis reform, and by suggesting that we use the next Farm Bill to further legalize cannabis, I could be making these objectives more difficult to achieve.

But, the next Farm Bill is the best chance we have to legalize cannabis. And the good news is: Maybe we can do both!

What Are Our Next Best Steps to Legalize?

To legalize cannabis, look to the next Farm Bill. It’s that simple.

There are two important things to keep in mind as we think about the possibilities of the next Farm Bill as a vehicle for cannabis reform: 1) the membership of the agricultural committees matters a lot, and 2) the party in control of Congress matters even more.

The agricultural committees in the House and the Senate are not the highest-profile jobs on Capitol Hill. It would be easy to discount these committees as secondary to the work of the Judiciary Committee, for instance. But for the purpose of legalizing cannabis, this is where the action is.

Are there champions of cannabis reform on the agriculture committees? Yes. The current chairman of the House Agriculture Committee is Rep. David Scott (D-GA), who has an A rating with NORML, an organization that advocates for legalizing cannabis. On the Senate side, there’s a number of pro-cannabis Democrats on the Agriculture Committee, including Booker.

In 2018, both chambers of Congress were controlled by Republicans. Today, both chambers are controlled by Democrats. But the next Farm Bill will be hashed out during the next Congress, after the 2022 midterm elections. So the exact makeup of the agriculture committees (and who’s in charge of them) is still undetermined.

To ensure that cannabis has the best chance of getting legalized in the next Congress, it’s vital that Democrats maintain control, even if by the razor-thin majorities they currently enjoy. Historically, the party of the president loses seats in the midterm elections, so everyone should buckle up for a bumpy ride in 2022.

One thing is clear: Democrats are better on the cannabis issue than Republicans—by a lot. To maximize the chances of legalizing cannabis through the Farm Bill, Democrats need to control at least one chamber in the next Congress.

So keep your eyes on the midterm elections, and on the agriculture committees. The members of those committees are the people who are going to legalize cannabis.

Before co-founding Cornbread Hemp, Jim Higdon was a nationally recognized journalist and book author based in Louisville, Kentucky. He covered marijuana policy for POLITICO Magazine, and for the Washington Post when news broke in Kentucky. His first book, “The Cornbread Mafia,” was published in 2012 in hardcover and in revised paperback in 2019. He co-founded Cornbread Hemp in 2019 with his cousin, Eric Zipperle.

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