What is preventing cannabis legalization in the US?

Legalizing cannabis in one form or another is legal almost everywhere in the US. As of August 2021:

• Medical marijuana is legal in 36 Conditions, 4th Territories and in the US Capitol, Washington DC. An additional 12th States have legalized the medical use of CBD made from marijuana.
• Adult use of marijuana is legal in 19 states, 2 Territories and Washington DC.
• This is shown by a recent survey by the Pew Research Center 91% of Americans support some form of legalization 31% only support medical use and 60% Medical and recreational support.

Recently, Democratic Senators Chuck Schumer and Cory Booker circulated a bill legalizing marijuana in the Senate. The Democrats control the House of Representatives, while the Senate is split 50/50 between Republicans and Democrats. The tiebreaker, however, is Democratic Vice President Kamala Harris.

Photo by Kevin Dietsch / Getty Images

Right now, cannabis is ubiquitous, popular, and the party that most openly supports cannabis legalization controls the legislative and executive branches of the federal government. Why does cannabis legalization seem a long way off?

According to Forbes, Schumer recently said at a press conference: “We currently do not have the necessary votes. But we have a large majority in our group in favor of it. We’re going to show the others and say, ‘Well, what do you dislike? What do you like? And we’ll see if we get the support. ‘ We’ll put our muscles behind it, all our efforts behind it, and we’ll get this done as soon as possible. “

It may seem confusing why the Senate’s top Democrat is concerned about getting enough votes to move his bill forward. Senate rules only require a simple majority to pass a bill, but procedural steps along the way require a super majority of 60 votes to end the bill debate. This brings us to what leads Senator Schumer to say that he does not currently have “the votes” on his proposed cannabis legislation: the filibuster.

A filibuster is a long-established tool (dating back to ancient Rome) that enables a lawmaker to slow down or block bills, resolutions, or amendments from other lawmakers by speaking for as long as they want. In theory, the debate can go on forever, blocking any final vote and essentially preventing the draft law, resolution or amendment from moving forward.

RELATED: Democrats have a year to legalize marijuana nationwide

The filibuster is a powerful tool and to understand why you must first understand how the Senate legislative process works. Here is a helpful breakdown from Congress.gov:

In order to examine a bill in plenary, the Senate must first agree to bring it up – usually by agreeing to a unanimous motion for approval or by voting on the acceptance of a motion to continue the bill, as mentioned above. Only when the Senate has agreed to consider a bill can senators propose changes.

Perhaps the most distinctive feature of the modern Senate is the potential difficulty in getting a final vote on a matter. Most of the questions that the Senate examines – from the motion for the continuation of a bill to any amendment to the bill itself – are not subject to any discussion limit. Simply put, Senate rules do not provide a way for a simple numerical majority to cut or otherwise set a debate boundary and move on to a final vote. As a result, Senators can effectively lead (or threaten) a filibuster, or insist on an extended debate, to delay or prevent a final vote on most amendments, bills, or other motions.

In the 1970s, Senate rules were changed to allow senators to trigger a filibuster simply by announcing that they were about to block a law. That means senators didn’t even have to start speaking to use the filibuster. As a result of this rule change, the image popularized by Jimmy Stewart in Mr. Smith Goes to Washington of a senator talking for hours is a relic of the past.

Photo by Drew Angerer / Getty Images

PBS News Hour has put together a helpful five-step breakdown of how the filibuster works in the modern Senate:

1. Any senator can start a filibuster.
2. Senators must announce this. Usually they give their party leadership a heads-up first. Then the most common formal step is simple: the senator stands and says, “I decline,” when other senators try to move the legislation forward.
3. This senator can, but does not have to, ask to discuss the reasons for the lockdown.
4. To end the filibuster, the entire Senate has to trigger another super weapon: “Cloture”. Cloture closes the debate and ends the filibuster. This is the 60 vote part. Current Senate rules require a three-fifths vote from the Senate to receive Cloture[.]
5. If Cloture exists, it dictates a maximum of 30 hours of debate and nothing more. Then the actual measure that the filibuster wants to block is voted on. If Cloture is not passed, the bill will remain pending while the Senate moves on to other matters.

Only 51 votes are required to pass a bill when the entire Senate is present. However, in order to get to the point where a bill can be voted on, the senators must exceed the 60-vote threshold set by the filibuster rule. In order for Schumer to pass laws, he needs the full support of all Senate Democrats plus ten Senate Republicans. Mitch McConnell, the Senate Republican chairman, will not condone efforts to support Senate Democrats, including a bill to legalize state cannabis. McConnell is not against all forms of cannabis. He was instrumental in the legalization of hemp with the passage of the Farm Bill 2018. When it comes to all-THC cannabis, McConnell has used the filibuster to block legalization measures.

RELATED: Filibuster Is Going Nowhere – What Does That Mean For Marijuana In 2021?

The more realistic way forward at this point could be for the Senate to abolish the filibuster as it currently exists. There is an urge to reform the filibuster, although most of the support comes from other (more important) issues, including protecting the right to vote and investigating the January 6 uprising. While many Americans and lawmakers are in favor of legalization, it wasn’t a reason to end the filibuster. However, if the filibuster is invalidated, the likelihood of marijuana legalization increases dramatically. There are also budget reconciliation measures that lawmakers can take to “bypass” the filibuster, but we’ll cover that in another post as it’s too complicated to continue this already long blog post.

To sum up, while it’s an incredibly popular political topic, and despite control over the House and Senate, it is likely that any measure offered by the Democrats to legalize cannabis will be doomed, in large part because of the filibuster. If you’re interested in contacting your congressional representative about marijuana, Norml has a website that does just that.

Daniel Shortt is a Seattle, Washington-based corporate and regulatory attorney who works extensively with entrepreneurs in the cannabis industry. You can reach him at info @gl-lg.com or (206) 430-1336.

This article originally appeared in the Green Light Law Group and was republished with permission.