On Marijuana, a Tough-on-Crime Republican Fail in Progress

Political and economic indicators point to more liberalization ahead.

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President Biden’s pardon last week for all federal simple marijuana possession offenses overshadowed a boost for the cannabis industry courtesy of a Federal Reserve Bank of Kansas City economic bulletin. Issued on the same day as the proclamation, the report describes how businesses in the conservative Great Plains region that includes Missouri, New Mexico, and Oklahoma, as well as industry-pioneering Colorado, have created jobs, increased state tax revenues, and boosted opportunities in real estate—a sector that has taken a hit during the pandemic.

Republican cannabis prohibitionists have their work cut out for them in an election year when most Americans disagree with that stance. Evidence continues to pile up that they stand in the way of an industry that has grown so lucrative that states have designed complex ways to tax the drug and absorb the resulting revenues. Cannabis revenues in recreational-use states totaled more than $11 billion in early 2022. Colorado took in nearly $425 million in state tax revenues last year; Oklahoma, a medical-only cannabis state, recouped $150 million.

The Biden decision twinned with the Kansas City Fed bulletin have the cumulative effect of obliterating Republican attempts to resurrect old-school messaging on crime and drugs. But it has not yet led them to wrap their minds around just how popular marijuana legalization is and how out of step they are with majorities of Americans across the political spectrum.

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Even the Texas Republican Party supports moving the drug down a notch under Controlled Substances Act scheduling, from Schedule I (illegal drugs with no medical value and high potential for abuse) to the less restrictive Schedule II, where certain narcotics have accepted medical uses and can be obtained with a prescription. A June 2021 University of Texas-Austin/Texas Politics Project survey found that roughly one-third of Texans agree that small amounts of marijuana should be decriminalized.

The potential revenues will not change how Republican hard-line governors up for re-election, like Texas Gov. Greg Abbott, approach marijuana legalization or pardons for low-level offenders. Abbott has no intention of delivering any election-year pardons to people for state simple marijuana possession offenses, even though he has noted that arrests for small amounts of marijuana are “not the type of violation that [the state should] stockpile jails with.” Beto O’Rourke, the Democratic candidate for governor, supports legalization.

Linking marijuana to crime plays well to gin up Republican voters’ fears: An Ipsos/USA Today poll released Monday found that 3 in 5 Republicans believe that cannabis decriminalization would lead to increases in crime and drug trafficking, as well as underage use.

Some MAGA Republicans on the campaign trail are doing just that. Dr. Mehmet Oz, the Pennsylvania Republican Senate candidate, claims that his Democratic challenger John Fetterman, who backs descheduling cannabis, supports decriminalizing fentanyl and other drugs. Oz has also blamed marijuana for preventing some people from looking for work. In an effort to burnish his tough-on-crime credentials in a recent Ohio Senate debate, Republican J.D. Vance tried to link cannabis offenses with other crimes. “It wasn’t just that they smoked a joint,” he said, “it’s that they smoked a joint and then beat an elderly woman over the head with a pistol.”

Linking marijuana to crime plays well to gin up Republican voters’ fears.

Others used the Biden pardon constructively to take up legitimate enforcement issues. The Republican co-chairs of the Congressional Cannabis Caucus, Reps. Dave Joyce (R-OH) and Brian Mast (R-FL), asked the president to end the Bureau of Indian Affairs’ “discriminatory” cannabis enforcement actions and focus on other crimes, particularly in states where cannabis is legal under both state and tribal law.

A few Republicans have underlined their pro-legalization views within certain conservative confines. Noting that she has “polled the hell out of the issue,” Rep. Nancy Mace (R-SC) has touted her support for legalization. She opposed the passage of the April House legalization bill and wants to see a measure that more closely corresponds with her interest in levying lower taxes on marijuana sales.

The president urged governors to consider pardons as well, and a number of states, including Colorado, Connecticut, Illinois, Massachusetts, Michigan, and New Mexico, have implemented pardon or expungement (which, unlike a pardon, removes an offense from a person’s record) for low-level marijuana offenses. Pennsylvania recently concluded a monthlong program that required people to apply for a pardon. (Some state leaders have claimed that only state boards of pardons can offer clemency.)

The profits (especially for Big Weed), tax revenues, and overall economic prosperity (there is a small uptick in total state employment growth immediately after legalization), along with the dangers to people working in all-cash businesses, are major reasons that Congress is likely to revisit more marijuana reforms during its lame-duck session. States want to see the issue of bank accounts for legitimate cannabis businesses move out of the gray area it now occupies. The Secure and Fair Enforcement (SAFE) Banking Act, a longstanding bipartisan proposal, would deal with this problem.

For members of Congress, the final tallies in conservative states like Arkansas, Missouri, North Dakota, and South Dakota, along with Maryland, that have recreational cannabis legalization initiatives on the November ballot will no doubt factor into their decision-making. Polls currently favor affirmative votes in three of the five states. (A July Mason-Dixon Polling & Strategy poll in South Dakota found that the measure might fail.) Post-pardon polling shows strong support for the president’s move among Democrats and independents.

Senate Majority Leader Chuck Schumer (D-NY) and Senate Republicans continue to negotiate on the SAFE Banking Act, which has passed the House seven times; the Senate has yet to consider it. Also potentially in play is a compromise proposal, SAFE Banking Plus, which would tie financial and banking provisions to social justice programs, such as grants to help states create expungement programs, access to Food and Drug Administration services for people entering the regulated sector, and Small Business Administration loans, as well as facilitation of veterans’ access to cannabis.

Whether weather-vane Senate Republicans can move on SAFE or SAFE Plus is a real gamble, but either move delays the inevitable: full marijuana legalization. President Biden’s long-overdue nudge toward the end-times for prohibition is more evidence that, in the case of marijuana, the “War on Drugs” is over.

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