In addition to legalization wins in multiple states and the presidency being called in favor of Joe Biden, who supports cannabis decriminalization, U.S. House of Representatives and Senate election results could impact federal cannabis legislation.
Sam D'Arcangelo, director of the Cannabis Voter Project at HeadCount, said both the successful state initiatives and some individual U.S. House and results could serve as a bellwether of more politicians expressing support for cannabis reform.
Meanwhile, VSS Strategies, Vicente Sederberg’s policy and public affairs consulting affiliate, is more focused on the bigger picture, said Steve Fox, managing partner of VSS Strategies.
“I wouldn't say there are too many races that we were specifically looking at in terms of the individual races,” Fox said. “It was more a question of overall control of the two chambers. With that in mind, I would say that we had a close eye on the Senate, and we're waiting to see which party would end up in control, since that will have a significant impact on the prospects for cannabis policy reform.”
In what was a very big night for the cannabis industry, what struck Patrick G. Martin, principal and director for law firm Cozen O’Connor’s Midwest practice, is the bipartisan support for cannabis in an otherwise very divided country.
“You saw in ballot initiatives across the country that cannabis is an issue that penetrates some of that [division] and crosses ideological and partisan and generational lines. Cannabis ballot initiatives passed in every state from deep blue New Jersey to dark red South Dakota,” Martin said. “What we’re seeing is that this issue resonates with the public. It’s been my experience that the politicians have been a little bit late to it, and the public is pushing them along.”
Despite losing seats, Democrats will retain control of the U.S. House of Representatives, according to preliminary election results.
Given adult-use legalization wins in red states like Montana and South Dakota, D’Arcangelo said, “I think you're going to start to see some Republicans consider maybe recalibrating their position on cannabis reform.”
In the 1st Congressional District in Florida, the swing state that the Associated Press called in favor of Donald Trump, pro-cannabis Rep. Matt Gaetz (R) won reelection. “It was no contest,” D’Arcangelo said of Gaetz’s win. “He's been pretty unapologetic in his support for cannabis reform throughout his time in Congress. So, at the very least, he demonstrates that this issue's not hurting him in any way, shape or form, and in fact, it might even be helping him.”
Don Murphy, director of federal policies at the Marijuana Policy Project and a former member of the Maryland House of Delegates in the 1990s and early 2000s, said Gaetz’s win should serve as an example to other conservative leaders who may support cannabis legalization but are concerned publicly vocalizing that could hurt their candidacy.
“The bad news is, [Gaetz] really had [President Trump’s] ear, and he doesn’t have that now. But it proves that Republicans in a red district can take the lead and be outspoken [on cannabis] and survive,” Murphy said. “Not only survive, but Gaetz crushed his opponent.”
In Texas, Pete Sessions (R) falls on the other side of the cannabis issue. Out of Congress for two years after losing his 32nd district seat, he returned, this time to the 17th district. However, his presence might not be as much of a problem for the cannabis community as it was before the Democrats took control of the House in 2018.
“Pete Sessions’ ability to actually affect marijuana policy is really minimal with the Democrats in control of the House,” D’Arcangelo said. “Pete Sessions' power largely came from being the chairman of the House Rules Committee, during which time, over the six years he was the chairman of the House Rules Committee, he managed to really stall any marijuana-related legislation from moving forward at all in the House of Representatives.”
In general, D’Arcangelo said, “I do think that you'll start to see increased support from politicians at the federal level for marijuana reform after what happened [last week]. Marijuana won everywhere, and in almost all those places it won easily.”
Which party controls the U.S. Senate will come down to two January runoff elections in Georgia, per preliminary election results.
“It's still possible that the Democrats can have 50 seats if they win both of those runoff elections in Georgia,” Fox said.
If that happens, some form of cannabis reform could pass at the federal level, Fox said. “You had the leader for the [Senate] Democrats, Chuck Schumer, saying numerous times recently that it's time to—well, sometimes he says 'decriminalize'—but … end prohibition at the federal level,” Fox said. At the same time, Fox said, “To be clear, it's not easy to pass anything in Congress. So, you need to take everything with a grain of salt.”
However, Murphy pointed out the significance that 30 Senators now are from states that have legalized adult-use cannabis and said the focus should not be on Democratic control alone.
“If Democratic Senators from Colorado and Washington aren’t [co]-sponsors of the [Marijuana Opportunity Reinvestment and Expungement] Act, it’s hard to expect Republicans from South Dakota and Montana to be,” he said. (The House has scheduled the MORE Act for a vote next month.)
What would happen if Republicans retain control?
“I don't really see big marijuana reforms moving forward in the Senate,” D’Arcangelo said. “But then you've got to wonder, with this now-clear demonstration of marijuana's popularity, are Senate Republicans going to reexamine their stances on marijuana? I have no idea. But they might.”
Fox echoed similar sentiments, saying, “I'm not saying it's going to be a priority of the party, but I think the recognition is growing. The number two Senate Republican, John Thune, is from South Dakota, and he can see how many of his constituents just voted in favor of medical cannabis, not to mention a majority also supported legalization.
“These are large numbers, and at the very least, these Republicans should be standing up for the idea that the federal government shouldn't be arresting their citizens for doing something that has been approved under state law.”
According to Martin, “If you are a congressman or a U.S. Senator from Mississippi or South Dakota, you’re probably a reliable conversative, but you’re looking at how this issue did in your state and you’re saying, ‘Maybe my constituents are for this.’ And clearly they are, and that has an impact when those federal officials go back to Washington and start working on policy.”
Murphy said two other races that he thought were significant were the Wyoming and Kansas Senate races, where voters in both states selected Republican Senators who previously served in the House and at that time voted to protect state-legal cannabis businesses from federal intervention. Although some Republican leaders may not like cannabis, they will support states’ rights, he said.
Though cannabis may not have been the deciding factor, former Colorado Gov. John Hickenlooper (D) took Sen. Cory Gardner’s (R) Senate seat in that state.
“Losing Cory Gardner is a huge loss. Cory Gardner was the biggest [cannabis] cheerleader in the Senate,” Murphy said. “Now [cannabis advocates] don’t have anyone in the majority party in those luncheons and in those caucus meetings standing up and pushing back on people who stand up and say legalization is horrible … There’s no one to defend against it.”
Gardner pushed for a vote on the Secure And Fair Enforcement (SAFE) Banking Act in the Senate, but it has been held up by Sen. Banking Committee Chair Sen. Mike Crapo (R-Idaho), D’Arcangelo said. He added: “And [because of] the fact that [Gardner] wasn't able to do that, I think whatever pro-cannabis forces had backed him to begin with sort of soured on him after it became clear that he wasn't going to be able to deliver anything in the Senate.
“Bringing in Hickenlooper, now you don't have a Republican in the Senate who is trying to position himself as the cannabis candidate. … But now you've got one more Democrat in the Senate, and cannabis reform is most likely to move forward in the House of Representatives if the Democrats control the Senate.”
Nothing is certain, D’Arcangelo points out, but if more Republicans change their stances on cannabis, he said the SAFE Banking Act would be more likely to pass than the MORE Act.
If it does pass both chambers, D’Arcangelo said Joe Biden could sign the MORE Act. As vice president, Kamala Harris, who sponsored the Senate version of the MORE Act, will have the ear of Biden. “I have no idea if he would sign it if it were put on his desk,” D’Arcangelo said. “I'd be surprised if he didn't, I guess, if a Democratic Senate were to put that on his desk.”