On Wednesday night, Democratic presidential candidate Bernie Sanders announced a proposal to dramatically shift marijuana policy in the United States. At a campaign stop in Virginia, Sen. Sanders announced he would be proposing new legislation in the coming weeks to remove cannabis from the list of Controlled Substances—a move many call “descheduling.” In many ways, this would be the most aggressive change—short of national legalization—that Congress could make, and Sanders is the most prominent official in the United States to support such a move. There is a bit we know about what this proposal could mean, and there is much we don’t quite yet know. Let’s break down each.
What do we know about Sanders’ descheduling proposal?
1. Legislation is the easiest way to change drug scheduling
Sen. Sanders’ proposal will come not from his ambition to become president, but from the office he currently holds: Senator. This effort will actually be more efficient than the executive action route, as I have written previously with Grace Wallack. Congress has within its power to amend the Controlled Substances Act and reschedule a substance or remove it entirely from the jurisdiction of that law. The video below explores the current web of policy and regulation surrounding marijuana and also illustrates the paths toward reform.
2. If passed, most states would automatically follow suit…maybe…
Under the Uniform Controlled Substances Act, most states have a procedure in place for changing state law in tandem with federal policy if the federal government makes changes to the scheduling of a substance. That process is largely automatic within a given timeframe. The catch? It is subject to an appeal from an interested party or concerned citizen—appeals that are guaranteed due process. One can be certain several states will see appeals, but there is no doubt the shift in federal policy would have a ripple effect on state scheduling policy.
3. It would transform the marijuana industry
By descheduling marijuana, marijuana enterprises would see substantial economic benefits. They would no longer run into challenges accessing financial tools like bank accounts, lines of credit, business loans, mortgages, etc. Currently, the Federal Reserve and financial regulations bar banks from working with organizations that traffic in illegal substances. Given marijuana’s scheduling status, those regulations hinder (some argue cripple) the marijuana industry, severely limiting growth and creating serious safety and security concerns associated with a cash-only business model. Washington Post’s Chris Ingraham noted the importance of this change and the added benefit of marijuana enterprises being able to access typical business tax benefits, as well. It would certainly translate into growth, profits, employment expansion, and reduced costs for the industry.
4. It would likely spur research
Grace Wallack and I noted in our recent paper that the categorization of marijuana as a Schedule I substance seriously hindered research on the medicinal benefits of the drug. In terms of access to product, licensure requirements, and ingrained cultural barriers, the scheduling status and the U.S. government’s historically unique treatment of cannabis created barriers to conducting research on the drug.
5. It would not legalize marijuana nationally
For all the talk about Bernie Sanders being a passionate socialist (some of that rhetoric coming from the candidate himself), his proposal is very small-government conservative. This congressional action would not lead to huge federally-owned marijuana grows and national marijuana dispensaries. The amendment to the Controlled Substances Act would simply reduce the federal role in the regulation and criminalization of marijuana, and leave greater discretion to states. More marijuana enterprises will surely pop up in more (new) states.
What we don’t know about Sanders’ descheduling proposal
6. What are the details of descheduling?
The chance of success for any policy proposal depends on the details, and in due deference to Sen. Sanders, we only know the broad outline of his new marijuana proposal. Until he issues a policy brief, a more detailed press release, or files legislation in the Senate, we are left to guess the specifics that fall under the broad heading of “descheduling.” What we do know is that descheduling would greatly reduce the federal government’s ability to regulate marijuana. Surely, Sen. Sanders does not want marijuana to be a wholly unregulated product, and so it will be interesting to see whether his bill sets up a federal regulatory framework, leaves all such issues up to the states, or forges some other regulatory alternative.
7. How does this law get passed?
At the federal level, marijuana reform supporters have had significant success over the past few years, particularly in the U.S. House. Some legislative reforms have even managed to pass into law, typically as riders to more significant legislation. Each of those efforts has been smaller or more targeted in nature—and moderate in effect. More significant, comprehensive proposals such as the CARERS Act have hit roadblocks in the legislative process. It is unclear what path to passage Sen. Sanders sees for a more aggressive and blunt policy reform. It will need to find 60 votes in the Senate to overcome a filibuster; it will need to be placed on the House calendar by a new Speaker of the House who has indicated (through rhetoric and a voting record) opposition to even medical marijuana reform; it will then need to pass the House of Representatives that has rejected or blocked even more moderate reform measures during this Congress; and it would need to be signed by a president whose public views on marijuana policy have not gone as far as this proposal. In that environment, Sanders’ plan seems to be a “hope raiser,” not a “policy changer.”
8. Would his marijuana reform ideas follow him to the White House?
Let’s assume Sanders’ legislative proposal fails to pass—a safe assumption given the barriers discussed above. Let’s further assume Sanders is elected president in 2016. Is this descheduling reform one that he would plan to pursue as president?
A President Sanders would be well within his authority to initiate the process to review cannabis’ scheduling classification, but using administrative authority to achieve full descheduling would be an uphill battle, requiring buy-in from various agency heads. And, as a new president, he would have the opportunity to select new administration officials who would be positioned to advance such a cause. Would he use this issue as a litmus test in selecting a new Attorney General, FDA Commissioner, DEA Administrator, and Secretary of Health and Human Services?
9. Will he pressure President Obama?
From his perch in the Senate and as a candidate for the White House, Sanders has a louder microphone than at any other time in his career. It is worth asking whether he will use that platform to push the president and other administration officials to support his proposal. Obama’s support could come through a commitment to sign it, efforts to pressure Congress to pass it, a willingness to allow it to be inserted as a rider into other legislation, etc.
10. Will Sanders go it alone in Congress?
It is unclear how effective Sen. Sanders will be at rounding up co-sponsors for this legislation. Co-sponsorship on many bills is hard to come by. That difficulty is enhanced for comprehensive, controversial, drastic policy reform. Ask lobbyists in the marijuana reform community and they will tell you that cosponsorship is critical and—depending on the reform proposal—can be hard to find. Presidential election years tend to make House members and Senators facing reelection more cautious and risk-averse, further complicating support. And frankly, few election-driven, majority members of a Republican-controlled Congress are looking for opportunities to work publicly with a self-described socialist—no matter a presidential candidate for the opposing party.
11. Will he change the Democratic debate?
Sanders’ proposal surges to the left of fellow Democratic presidential candidates Hillary Clinton and Martin O’Malley. Will Sanders use future debate stages, media appearances, and public events to push the Democratic field on the issue of marijuana reform? Will he motivate Clinton to clarify what has thus far been a vague stance on the issue or O’Malley to re-assess his comparatively moderate reform position (decriminalization + rescheduling)?
12. What motivated Sanders’ change of heart on marijuana policy?
Sanders often promotes his own policy consistency, particularly when contrasting himself with Clinton. He recently noted in an appearance on Charlie Rose, “there are real differences between Hillary Clinton and myself. I have been extremely consistent on my views for many, many years.” However, it’s not clear he has been consistent on marijuana policy, even over the past few months. In June, he dodged a question on legalization, saying of marijuana, “It’s not my thing…” and went on to voice a different concern: “If you talk to law enforcement folks, what they worry about is they see this as an entry level drug, which leads to coke, which leads to heroin.”
A few weeks ago, in the first Democratic debate, Sanders signaled a bit of issue evolution, saying that as a voter he would likely vote for a legalization initiative. In this week’s shift, he has staked out the most reform-oriented position on the issue in the 2016 field—and in his own career. Surely, the underlying issues he cites—arrest rates, incarceration rates, and racial justice—have not changed since June. What has changed is Sanders’ position on the issue. What is interesting now is if Sanders’ change in rhetoric will also change the conversation about marijuana reform in the presidential race, in the halls of Congress, and around dinner tables across America.