The Senate Marijuana Legalization Bill: Positive Provisions, Tough Odds

July 22, 2022

On July 21, Senate Democrats formally introduced a bill to federally legalize cannabis. Building on the momentum that has turned 19 states and the District of Columbia marijuana-legal, the bill would officially remove cannabis from criminal drug law. But efforts in Congress must contend with inevitable opposition from most Republicans and even some Democrats—including, potentially, President Joe Biden.

The Cannabis Administration and Opportunity Act (CAOA) is sponsored by Senate Majority Leader Chuck Schumer (D-NY) and Senators Cory Booker (D-NJ) and Ron Wyden (D-OR). They released the first draft of the bill back in July 2021, as the Senate’s response to the House passing its own federal legalization bill (the more catchily titled MORE Act), twice.  

The CAOA is a hefty 296-page bill, but among its most important provisions, cannabis (“marihuana”) and THC would be removed from the Controlled Substances Act, no longer classified among Schedule I “narcotics” such as heroin and LSD. The Attorney General would have to do this within 180 days of enactment. Adults over age 21 could purchase up to 10 ounces of cannabis products at a time. A regulatory framework would be created, with the involvement of the FDA and other federal agencies. Individual states, however, could still prohibit production or sale.

People currently incarcerated for federal marijuana convictions could also petition for re-sentencing. And within one year, all federal courts would have to expunge any federal convictions for actions that would no longer be criminalized. Courts would have to notify individuals that their records had been expunged.

And the federal government could no longer deny people any benefits—like food stamps—based on a past cannabis conviction. Cannabis convictions could no longer be used to penalize immigrants, documented or not.

The federal government would also create an “Equitable Licensing Grant” program to fund states and cities creating opportunity in the industry for socially or economically disadvantaged people, like those with prior drug arrests. It would also provide direct loans to those businesses through a third party. It would penalize cannabis businesses that violate federal labor laws by revoking their licenses.

“We will continue to work with the Senate to ensure that this bill succeeds in lifting the burdens of criminalization by providing expungement and resentencing.”

The Drug Policy Alliance (DPA) convened the Marijuana Justice Coalition to advocate for equitable legalization with many other human rights organizations, including the ACLU, the Immigrant Legal Resource Center and Human Rights Watch. Their leaders have issued a raft of statements backing the CAOA.

“The ACLU is pleased that Senate Majority Leader Schumer and Senators Booker and Wyden are introducing the Cannabis Administration and Opportunity Act,” said Aamra Ahmad, ACLU senior Policy counsel, in one of the statements. “If you want to know what systemic racism is, look no further than the war on drugs and marijuana enforcement—a Black person is 3.64 times more likely to be arrested for marijuana possession than a white person, even though Black and white people use marijuana at similar rates … We will continue to work with the Senate to ensure that this bill succeeds in lifting the burdens of criminalization by providing expungement and resentencing for all marijuana convictions.”  

All the same, “I think there’s still some room for improvement,” Maritza Perez, director of DPA’s Office of National Affairs, told Filter. “There is new funds for law enforcement purposes in this bill,” she pointed out. “I understand where that’s coming from … But at the same time we cannot support more money going to law enforcement.”

Overall, Perez praised the bill for its provisions and progressive language. She said that Senate Democrats included many of the coalition’s proposals in the new version.

The CAOA certainly has some strong provisions, but the big question is now is whether Senators in both parties will support it. Because of the filibuster creating a 60-vote threshold, Democrats—if they all voted in favor—would need the support of at least 10 Republicans. But that seems unlikely—despite support for legalization even among Republican voters—when the CAOA’s passage would represent a political win for Democrats so close to the midterms.

The chances of imminent federal legalization, then, are slim. But that says far more about infighting and vested interests in Congress than it does about what voters actually want. A recent poll, echoing many others, found 69 percent of Americans support full legalization, with 78 percent of Democrats and even 54 percent of Republicans in favor.

That doesn’t mean Senate Democrats have no other options. They could repeal the filibuster, and require a simple majority to pass any legislation, with Vice President Kamala Harris casting the tie-breaker. Alternatively, they could try to ram this bill through the “budget reconciliation” process, also requiring a simple majority. Yet this is still unlikely, considering Democrats declined to use either option to advance basic voting rights or policing reforms.

“I think it’ll be really hard to achieve complete Democratic unity, and definitely to get any Republicans on board because the bill includes some pretty strong language on social equity and funding.”

And Senate Democrats may not even have total support within their caucus. It’s easy to imagine, if push comes to shove, Senators like Joe Manchin (WV) or Kyrsten Sinema (AZ), among others, voting against.

“I think it’ll be really hard to achieve complete Democratic unity,” Perez acknowledged, “and definitely to get any Republicans on board because the bill includes some pretty strong language on social equity and funding.” However, “It’s something we’re never going to back down from.”

But if Senate Democrats were able to surpass all these obstacles, would Biden himself stand in the way? Biden is on record as opposing legalization, instead wanting smaller reforms like decriminalization and protecting marijuana-legal states.

“I think if he saw us build support for a comprehensive bill that de-schedules marijuana in Congress, he wouldn’t have a choice but to change position on it,” Perez said.

The introduction of the CAOA further normalizes the discussion of marijuana legalization in Congress, but talks alone won’t help the people being criminalized for marijuana right now. And the clock is ticking. If Democrats lose control of one or both chambers of Congress after the midterms, the odds will get much steeper.

But Perez and the Marijuana Justice Coalition won’t give up. “If the composition [of Congress] changes, I won’t be completely hopeless,” she said. “Unless we see a complete flip of both chambers and the White House, I think there’s still an opportunity to work together and pass something.”


Photograph via United States Congress

The Influence Foundation, which operates Filter, previously received a restricted grant from DPA to support a Drug War Journalism Diversity Fellowship.

Alexander Lekhtman

Alexander is Filter's staff writer. He writes about the movement to end the War on Drugs. He grew up in New Jersey and swears it's actually alright. He's also a musician hoping to change the world through the power of ledger lines and legislation. Alexander was previously Filter's editorial fellow.

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