When Jeff Sessions announced Thursday morning he had removed the barrier that had held back federal prosecutors from pursuing marijuana cases in states that had made pot legal, he delivered on something he had all but promised when he was nominated as attorney general. Most of the marijuana world saw it coming, but they freaked out anyway.
A fund of marijuana-based stocks dropped more than 9 percent in value and, as a sign of how mainstream marijuana has become, Sessions’ decision to repeal the Cole Memo, an Obama-era protection for states that have legalized marijuana, even affected the stock price of Scotts Miracle-Gro Company, which dropped more than 5 percent. Business leaders in an industry that was worth $7.9 billion in 2017, called Sessions’ action revoking “outrageous” and “economically stupid.”
Capitol Hill screamed just as loudly. And it wasn’t just the Democratic members of the Congressional Cannabis Caucus. It was Republican senators, too. Cory Gardner of Colorado took the Senate floor to issue an ultimatum to Sessions: “I will be putting a hold on every single nomination from the Department of Justice until Attorney General Jeff Sessions lives up to the commitment he made to me in my pre-confirmation meeting with him. The conversation we had that was specifically about this issue of states’ rights in Colorado. Until he lives up to that commitment, I’ll be holding up all nominations of the Department of Justice,” Gardner said. “The people of Colorado deserve answers. The people of Colorado deserve to be respected.” Gardner is no fringe Republican; he’s the chair of the NRSC.
Even members who had been silent on the issue in the past vowed to squeeze the Department of Justice’s budget. Jeanne Shaheen, Democrat from New Hampshire, reminding reporters she’s the lead Democrat on the Department of Justice funding subcommittee, tweeted: “I’ll work to ensure that resources are devoted to opioid response NOT foolish policy of interfering with legal marijuana production.” Most of the Congressional leadership was silent on this issue, but not House Minority Leader Nancy Pelosi, who issued a blistering statement against Sessions, saying that she would push for an amendment in the new spending bill to protect states that had legalized not just medical marijuana but recreational use too, a move that could make ongoing budget negotiations much more tense.
Thursday may well turn out to be a pivotal moment in the marijuana industry’s evolution as a political force. Nearly 70 percent of Americans believe in some form of legalized marijuana, but does the nascent industry have the sway to rewrite nearly 50 years of federal drug policy? Or will it remain a splintered coalition of investors, libertarians, concerned parents of sick kids, cancer sufferers, and traumatized veterans, who have the numbers but not the concentrated lobbying effort necessary to once and for all remove marijuana from the crosshairs of federal drug enforcement?
“There’s a lot of [legislators] trying to have it both ways who are now going to have to make up their mind,” said Tick Segerblom, the Nevada state senator who is considered the father of the state’s legalization movement. “Are they going to go with what the voters of their state support, or are they going to join Sessions and crack down and try to re-instate prohibition?”
Right now, the answer seems to be the former. Sessions’ antipathy for a drug that has lost much of its stigma among a wide cross section of Americans has only galvanized disparate factions in Congress to protect an industry that is expected to generate $2.3 billion in state tax revenue by 2020.
Senator Pat Leahy of Vermont, who just a few weeks ago declined to comment to POLITICO Magazine about whether he would work to maintain protections for medical marijuana in the 2018 omnibus spending package, tweeted on Thursday, “I'm now fighting to include my amdt in the final omnibus Approps bill so we can protect patients and law-abiding businesses.”
Those law-abiding businesses are now fully engaged in this matter, and they aren’t just going to roll over and let Jeff Sessions shut them down.
“I expect any actions he and the Justice Department take against the industry will be met with significant pushback from states that are benefiting greatly from an economic and quality of life standpoint,” said Jeffrey Zucker, president of Green Lion Partners, a Denver firm that promotes marijuana businesses. “The cannabis industry will continue on regardless of this decision, and in the long run this should only be a roadblock.”
Leslie Bocskor, president of Electrum Partners, an asset-backed finance company invested in the marijuana market, expressed his displeasure with a wry dig at Sessions’ motives: “It is almost as if the rally in publicly traded stocks in the legal cannabis sector was too much for the AG to bear.”
The Cole Memo was never intended to be a permanent fix to the problem posed by the conflict between states that chose to legalize marijuana and existing federal prohibitions. Written by James M. Cole, an assistant deputy attorney general in 2013, the memo gave the nation’s 93 U.S. Attorneys broad latitude to exercise prosecutorial discretion in states where marijuana had been legalized. (Mr. Cole, now in private practice, declined a request for comment for this story.) His memo was interpreted as a virtual hands-off rule, allowing medical and recreational marijuana programs to spread across the country at an unprecedented rate. Flimsy though it was, the Cole Memo nevertheless provided a measure of security for dispensary owners, growers and consumers and allowed investors to proceed with some confidence that their money was not going to be seized in a DEA sting.
The best protection that Congress had been able to provide was the Rohrabacher-Farr amendment, which was passed in 2014 attached to an appropriations bill. It barred the DOJ from spending funds to interfere with the implementation of medical marijuana laws. But since then, a total of eight states have now passed full recreational use laws, mostly recently California, whose law took effect January 1. Rohrabacher-Farr (now known as Rohrabacher-Blumenauer, in honor of Democratic Representative Earl Blumenauer of Oregon, who co-sponsored the amendment) expire on January 19 if it is not renewed and does nothing to help recreationally legal states, hence the eagerness of marijuana advocates to shore up the industry’s legal standing with new legislation and Pelosi’s stated desire to bake in those protections in the budget that’s currently being negotiated.
The fact that marijuana has now risen to the height of top-tier budget negotiations is a sign that the pro-marijuana coalition is no longer merely a menagerie of loud-mouth hippies, stoners, and felons, as the pro-pot crowd has been characterized in the past. The community of Americans who now rely on legal medical marijuana, estimated to be 2.6 million people in 2016, includes a variety of mainstream constituency groups like veterans, senior citizens, cancer survivors, and parents of epileptic children. The American Legion, a conservative veterans organization by any measure, has voted twice in favor of resolutions to expand research and safe access for its members.
“The American Legion has been a leading advocate for the removal of cannabis from Schedule I of the Controlled Substances Act to enable greater research into the medical efficacy of the drug to treat ailments that impact veterans such as PTSD and chronic pain,” Joe Plenzler, Director of Media Relations for The American Legion, told POLITICO Magazine — which means Jeff Sessions just crossed the nation’s largest wartime veterans service organization.
By the end of the day on Thursday, in a conference call of five members of the Congressional Cannabis Caucus, lawmakers from four of the eight states that have approved recreational marijuana railed about Sessions’ unconstitutional assault on the rights of their states to decide their own affairs. On that call, California Republican Dana Rohrabacher said that the move by Sessions to strike a blow against marijuana has had the inverse effect of raising the attention from what had previously been a states’ issue but has now become a national priority. “It’s a big plus for our efforts that the federal government is now aware that our constituents have been alerted,” Rohrabacher said. "We can be confident we can win this fight, because this is a freedom issue.”
On the same call, California Democrat Barbara Lee made it clear that she and her constituents were not going to accept Sessions’ move without a fight. “As a person of color, let me just say that the War on Drugs has been a failure… We’ve lost families, we’ve lost a generation. So this affects people of color in a big way, so we’re not going to allow them to turn back the clock. In our district, we’re going to fight this every step of the way,” the Congresswoman said.
Even if Leahy protects medical marijuana programs by reauthorizing the Rohrabacher-Farr amendment in the upcoming omnibus spending bill in the conference committee, the Congressional Cannabis Caucus has less than a year to make those protections permanent. The means to do that is H.R. 1227, the Ending Federal Marijuana Prohibition Act, sponsored by Representative Thomas Garrett, a Republican from Virginia. The bill, now with 15 cosponsors, would remove marijuana from Schedule 1 and eliminate federal penalties for anyone engaged in state-legal marijuana activity. All Congress has to do is pass it.
“We’ve got to act,” Rohrabacher said on the Thursday phone call. “We can’t take it for granted, and now it’s going to be a priority for us to accomplish.”
As of late Friday, POLITICO Magazine could not find a single member of Congress who had issued a statement in support of Sessions’ actions. In the end, this is a self-inflicted pot crisis that could prove to be a critical test of Trump’s ability to maintain his base.
“There’s a lot of old white men who are marijuana users, and the marijuana is keeping them alive,” Segerblom said from his cell phone while driving around Las Vegas. “Trump is going to have fewer to vote for him if he doesn’t keep marijuana legal.”