Chuck Schumer Has Only Himself To Blame For Marijuana Reform Failure

When Democrats took control of the House, Senate and White House in January 2021, supporters of marijuana policy reform were ecstatic at the prospect of meaningful cannabis reform in the 117th Congress. After all, Speaker Nancy Pelosi and incoming Senate Majority Leader Chuck Schumer had publicly expressed support for reform, with the Democratic Controlled House having already passed both comprehensive reform in the MORE Act and incremental legislation in the SAFE Banking Act the previous year.

WASHINGTON, DC - JULY 14: U.S. Senate Majority [+][-]

Leader Charles Schumer (D-NY) scratches his head as he attends a press conference on introducing legislation to end federal cannabis prohibition at the U.S. Capitol on July 14, 2021 in Washington, DC. The Senate Democratic leader is introducing The Cannabis Administration And Opportunity Act, which will remove marijuana from the list of controlled substances and begin regulating and taxing it at the federal level. (Photo by Kevin Dietsch/Getty Images)

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Supporters understandably saw passage of the SAFE Banking Act, a bill that would allow banks to do business with state licensed cannabis businesses which had passed with strong bipartisan support, as the lowest hanging fruit, with hopes high that Congress could push forward even more meaningful reform. But with the news this week that the SAFE Banking Act was not included in the Omnibus spending bill, after having been nixed from the National Defense Authorization Act weeks earlier, the Congressional session will come to an end without a single substantive marijuana reform bill having been passed.

With Republicans set to take over control of the House of Representatives in a few weeks and Congress set to adjourn for the holidays, it appears that despite their lofty promises and the optimism it created, Democrats will have accomplished nothing on marijuana reform in two years of unified control of government in Washington, DC.

While Senate Majority Leader Schumer is publicly laying blame for marijuana reform’s failure at the feet of Republicans and Senate Minority Leader Mitch McConnell, his words ring hollow in the eyes of most marijuana advocates and industry participants. If there is one person who bears the majority of the blame for this massive failure to accomplish what was an achievable goal, Senator Schumer need look no further than the reflection in his mirror.

While it is true that Mitch McConnell is an ardent opponent of the issue and worked to kill the inclusion of SAFE Banking and other reform in the lame duck session bills, he is still only the Minority Leader. It was Majority Leader Chuck Schumer who is responsible for pushing this issue to the brink and forcing a situation where it needed to be passed in the final weeks of the Congressional session. In fact, Mitch McConnell himself, in a rare moment of intellectual honesty, summed up the situation best when speaking about it earlier this month. In defending his opposition to the inclusion of cannabis reform language in the NDAA, McConnell stated “If Democrats wanted these controversial items so badly, they had two years to move them across the floor. Heck, they could have scheduled those matters for votes this week.”

Advocates who have worked tirelessly to ensure the passage of SAFE Banking, record expungement, and other marijuana reforms this Congress, agree with Mitch McConnell on this, perhaps the first time the executive director of the National Organization for the Reform of Marijuana Laws (NORML) and the Senate Minority Leader have agreed on anything. NORML’s executive director Erik Altieri had this to say about the Senate’s inability to get SAFE Banking passed this session: “Democrats have promised action on cannabis consistently for the last two years, yet leadership consistently failed to prioritize and advance marijuana reform legislation, including legislation to provide clarity to banks and to provide grant funding for state-level expungement efforts, despite having several opportunities to do so.”

It did not need to come to this, but we are here because of Senator Schumer’s inability to move this issue forward for nearly two years. The infighting between Democrats and among reform advocates over passing SAFE Banking vs comprehensive reform has been well documented. Senators on the left, led by Cory Booker, and advocacy organizations in Washington DC like the American Civil Liberties Union and the Drug Policy Alliance insisted that Congress push for comprehensive reform first, arguing that SAFE Banking would only benefit large white owned cannabis companies and wealthy bankers without doing enough for restorative justice and social equity.

On the other side, cannabis business organizations like the National Cannabis Industry Association and the Minority Cannabis Business Association and some reform organizations like NORML and the Marijuana Policy Project, along with pragmatic members of Congress like Senator Patty Murray and Representative Ed Perlmutter argued that there simply were not enough votes to advance comprehensive reform through the Senate, so the focus should be on passing SAFE Banking and other incremental reforms that would provide much needed financial relief to cannabis businesses, protect public safety, and advance expungement of records for people with prior cannabis convictions.

Of course, Senator Schumer didn’t become Majority Leader by being a dummy. He knew full well from the start that the votes were never there for comprehensive reform in the Senate, a chamber that requires 60 out of 100 votes to pass legislation. There were not even 50 votes needed to pass it through reconciliation, a pathway that may not have even been possible due to the Senate’s archaic rules. After all, Democratic Senators Jeanne Shaheen and Jon Tester had stated their opposition to legalization, while others like Joe Manchin, Bob Casey and Mark Kelley had expressed serious reservations. Meanwhile Rand Paul was the only Republican Senator arguably in favor, and even he was likely to oppose any legalization proposal that included strong social equity provisions and the high tax rates proposed in Schumer’s bill.

In an effort to appease his base on the left, Senator Schumer knew he had to make an all-out effort for broad comprehensive marijuana reform. Without doing so, he might lose the votes of more left leaning Senators like Booker, Elizabeth Warren and Bernie Sanders needed to get to 60 votes for piecemeal reform like banking and expungement.

All of this amounted to a game of political theater that most observers understood was performative rather than a good faith effort to pass legislation that Schumer knew full well was doomed to failure from the start. Senator Schumer would need to introduce a comprehensive reform package and hold Congressional hearings before demonstrating to his base that the votes simply weren’t there for passage. He could then move on to a smaller package of incremental reforms that included SAFE Banking with social equity provisions, expungement, and potentially other popular provisions like veteran access to medical cannabis.

Had Senator Schumer introduced his legalization package in 2021, there would have been ample time to get an incremental reform package passed in the following year. It could have been voted on as a standalone bill long before the political pressures of the 2022 midterm election season, or more plausibly, been included as part of any number of larger packages that passed the Senate in 2022, many with only 50 votes through reconciliation.

Instead, Senator Schumer waited until mid-summer of 2022 to introduce his Cannabis Administration and Opportunity Act. By the time hearings were held and it was clear the votes didn’t exist to pass, something the Majority Leader knew more than a year earlier, it was autumn by the time Schumer and his allies pivoted to the package of incremental reforms that became known as SAFE Plus. By then there was precious little time to work through the details, particularly at a time when most members of Congress were already focused on their midterm elections.

This left the Democrats with the only option of trying to ram through SAFE Plus during the post-election lame duck session, a short amount of time with no vehicles that could pass through reconciliation, requiring the participation of Republican leadership in any bill. It is no secret that Mitch McConnell has been a long-time vocal opponent of marijuana reform, including banking reform. Yet Chuck Schumer’s inability to advance this issue when he had two years to do so put him in a position that allowed a longtime opponent like McConnell to kill all reform efforts.

Sure, Mitch McConnell bears blame here. Without his opposition SAFE Plus would likely be headed to President Biden’s desk today as part of the Omnibus or NDAA. And of course, in the aftermath of this failure, Senator Schumer is squarely casting blame on his Republican counterpart. But the reality is that Democrats and reform supporters were only in this position because of Senator Schumer’s unwillingness to advance the issue on a reasonable timeline, putting the issue in a position where Senator McConnell could kill it. The fact is that Chuck Schumer played a game of chicken with marijuana reform and wound up getting hit by a truck.

Now marijuana advocates and the cannabis industry are left to deal with the fallout. For businesses around the country facing robberies and violence for operating in all cash, no help is on the way. More cannabis business employees will face violence and even death because of Congress’ inaction. Small and large businesses alike facing the most challenging cannabis capital markets in years will find no relief. Many businesses, especially those run by black, brown, and mom & pop owners will go under in the coming year without access to lending and institutional capital. Social equity licensees across the country are selling off their licenses rather than operating them themselves, putting more of the industry in the hands of already well-to-do owners, because they simply can’t access the startup capital needed to build out and operationalize their businesses. This trend will now continue and accelerate in 2023.

There is of course a chance that SAFE Banking could pass during the next Congress. But ironically, there is now virtually zero chance that the social equity and justice goals supported by Senator Schumer and many advocates will be part of any banking reform bill that could pass a GOP controlled House. The very provisions that Senators Schumer, Booker and their allies fought so hard for, and which could easily have passed as part of an incremental reform package had they simply taken it up in a timely manner, will be a non-starter in a House of Representatives whose leadership largely views any discussion of social equity and restorative justice as “race baiting.”

If a Kevin McCarthy controlled House allows a vote on any kind of incremental cannabis reform in the coming 118^th Congress, and that alone is a huge “if,” the reality now is that the best-case scenario would be banking reform without any provisions that benefit social equity cannabis business owners or communities that have disproportionately harmed by marijuana prohibition. The very constituents that Senator Schumer and his allies held up this entire process for over a year to help are now likely to be the biggest losers in any near-term reform, if any reform is even possible in the next two years.

In the wake of this failure Senator Schumer now says he will fight to get incremental reform accomplished in 2023. If he or anyone else truly believes that a GOP controlled House of Representatives will allow passage of a marijuana banking bill, or any incremental cannabis reform, that includes provisions to help communities disproportionately harmed by marijuana enforcement to pass the chamber, well, I’ve got a bridge in Brooklyn I’d like to sell them.