Updated: Mar 19
A federal oversight agency has determined that a congressionally enacted spending bill rider that prevents Washington, D.C. from legalizing marijuana sales does not preclude local officials from taking procedural steps to prepare for the eventual reform.
Rep. Andy Harris (R-MD), a legalization opponent who’s routinely sponsored the amendment to stop D.C. from spending its own local tax dollars to implement a regulated cannabis market, complained to the Government Accountability Office (GAO) in 2019 after members of the District of Columbia Council introduced a legal sales bill and referred it to committees.
But on Monday, GAO released a letter clarifying that nothing in federal law prevents the city officials from taking such preliminary legislative steps as long as the proposal isn’t actually enacted while the congressional ban stays on the books. With Democrats now in control of the House of Representatives, Senate and White House, advocates believe that it won’t be long before the rider is repealed and cannabis sales can be legalized in the nation’s capital.
“D.C. government officials did not violate section 809 of the Financial Services and General Government Appropriations Act, 2019, or the Antideficiency Act, when they obligated and expended funds in FY 2019 to draft, introduce, and refer a bill to various Committees because the officials did not obligate or expend amounts to enact the bill into law,” GAO General Counsil Thomas H. Armstrong wrote in his seven-page report.
Lawmakers can’t “enact” a bill to legalize any Schedule I substance by voting on final passage or attempting to override a mayoral veto. But that term “does not include other actions that may precede enactment, such as to draft, consider, or hold hearings on legislation,” the federal agency said. “Indeed, these precursory legislative actions can serve purposes other than the enactment of legislation.”
This decision from GAO comes as local lawmakers are considering two new competing marijuana commerce bills—one from Mayor Muriel Bowser (D) and another from D.C Council Chairman Phil Mendelson (D).
While the so-called Harris rider was renewed as part of the latest appropriations legislation, the congressman didn’t proactively introduce it again last year in the Democratic-controlled House. Rather, it was included in the Senate version and ultimately made it into the final bill signed by President Donald Trump. Now that both chambers are controlled by Democrats, who have sought to give D.C. more autonomy than Republicans have, advocates are hopeful that the prohibitive language will be fully stripped from a new spending bill later this year.
For reference, here’s the language of the amendment blocking D.C. from using its funds to enact a regulated cannabis market:
(a) None of the Federal funds contained in this Act may be used to enact or carry out any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative.
(b) No funds available for obligation or expenditure by the District of Columbia government under any authority may be used to enact any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative for recreational purposes.
The recently filed pieces of D.C. sales legislation are similar: both would build on the District’s 2014 law legalizing marijuana possession and home cultivation by creating a regulated market that prioritizes social equity. Bowser’s bill largely reflects past proposals, though it does include new licensing provisions and funding mechanisms that are meant to bolster social equity in the industry.
The Drug Policy Alliance (DPA) is pushing the new proposal from the chairman over the mayor’s approach, lauding the former as a “sweeping bill” that tackles the regulatory side of the market while effectively promoting social equity and reinvestments for communities most impacted by prohibition.
DPA’s Queen Adesuyi said that as Congress moves to federally deschedule cannabis, “it is critical that this injustice in their own backyard finally comes to an end and home rule is respected. It is past time for D.C. to be able to fully realize these benefits by seeking justice reform and equity within their own legal marketplace.”
Activists have also taken issue with several provisions of Bowser’s bill, including that it could limit the amount of cannabis that people could possess after growing the plant at home under the city’s current law.
While it may take time for Council members to choose an approach to legalization, the new GAO report confirms that they can hold hearings and prepare the legislation for final passage so that it is ready when a new federal spending bill goes into law, which could be as soon as October 1, depending on how soon Congress acts on Fiscal Year 2022 legislation.
Last year, the mayor released a budget plan for the 2021 fiscal year that contained a signal that the local government was preparing to implement regulations for retail marijuana sales just as soon as Congress allowed it by shifting the city’s current medical cannabis program to the jurisdiction of the Alcoholic Beverage Regulation Administration (ABRA).
Bowser also unveiled a legalization bill in 2019, and part of it called for ABRA to regulate the legal industry and for the agency to be renamed the Alcoholic Beverage and Cannabis Administration, a change that is also included in the mayor’s latest legislation.
Meanwhile, next door to the District, lawmakers in Virginia recently sent a marijuana legalization bill to the desk of Gov. Ralph Northam (D). On the other side of the city, legislators in Maryland are also considering legalizing cannabis this year.
In D.C., Bowser approved legislation in December to decriminalize possession of drug paraphernalia for personal use and promote harm reduction.
Activists filed a proposed ballot initiative to legalize marijuana sales in August, but it did not advance.
Separately, a local councilman introduced a bill in October that would expand opportunities for formerly incarcerated people to participate in the city’s existing medical cannabis market.
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