The Failure To Enact Marijuana Banking and Crack Sentencing Reforms Is a Window on Congressional Dysfunction

Senate Majority Leader Chuck Schumer (D–N.Y.) this week blamed Republicans for preventing Congress from approving marijuana banking reform by opposing its inclusion in the omnibus spending bill that was unveiled on Tuesday. That was a pretty audacious excuse, since Schumer himself has a history of blocking the SAFE Banking Act, which would make it easier for state-licensed marijuana businesses to access financial services by removing the threat of civil, criminal, and regulatory penalties for banks that assist the cannabis industry.

Sen. Tom Cotton (R–Ark.) displayed a different kind of chutzpah yesterday when he single-handedly stopped the Senate from considering the EQUAL Act, which would eliminate the irrational penal distinction between the smoked and snorted versions of cocaine. That bill, like the SAFE Banking Act, was proposed as an addition to the catch-all spending package, an effort that was frustrated by Republican opposition. Sen. Cory Booker (D–N.J.) responded by seeking unanimous consent to release the stand-alone version of the EQUAL Act from the Senate Judiciary Committee. Cotton, a hardline prohibitionist who has never met a drug penalty he thought was too severe, objected.

These setbacks show how difficult it is to get even modest drug policy reforms with wide bipartisan support through Congress. They also illustrate a broader problem with the way Congress operates. Legislators routinely abdicate their responsibility to approve appropriations in a timely fashion, leaving myriad decisions until the last minute. The result is gargantuan spending bills that no one has time to read, let alone carefully consider. Those bills are tempting vehicles for unrelated legislation that Congress might (or might not) have approved separately if a vote had been allowed.

The omnibus spending bill, a.k.a. the Consolidated Appropriations Act for 2023, is 4,155 pages long. It was released early Tuesday morning, three days before the deadline for approving it. “The worst people in politics from both parties have teamed up to demand Congress rubber-stamp a 4,155-page blank check—many times the length of the Bible,” Edward Snowden observed on Tuesday. “A check for $1,700,000,000,000 of your money. And they want it stamped before anyone can actually read it. Sounds legit.”

Similarly, the 4,408-page National Defense Authorization Act (NDAA) for Fiscal Year 2023 combines a dozen appropriations measures allocating a total of $858 billion. It was released on December 6, two months after the fiscal year began and two days before the House approved it. The Senate passed the NDAA a week later.

This is no way to make policy. In practice, legislators approve bills like these first, then gradually discover what is in them. That is a dereliction of duty on a vast scale.

In this context of reckless lawmaking, members of Congress who object to the inclusion of specific provisions can raise legitimate process concerns along with dubious policy arguments. When McConnell argued against adding the SAFE Banking Act to the NDAA, he complained that Democrats were “trying to jam in unrelated items with no relationship whatsoever to defense,” including legislation “making our financial system more sympathetic to illegal drugs.” The next day, he rejoiced that the NDAA “is not getting dragged down by unrelated liberal nonsense,” such as “easier financing for illegal drugs,” which “was kept out.” He said “that same lesson must carry over into our subsequent conversations” about the Consolidated Appropriations Act.

McConnell is right that Congress should be approving or rejecting legislation on its own merits rather than voting for it only because it has been incorporated into a must-pass, end-of-the-year spending bill. But the latter approach is how Congress has been operating for decades, including the years when McConnell was the Senate majority leader. And the FY 2023 NDAA that McConnell deemed acceptable is rife with provisions that have little or nothing to do with national defense, addressing subjects such as fentanyl trafficking, money laundering, “global food security,” conservation of tropical forests and coral reefs, disaster relief, “fair hiring in banking,” “financial data transparency,” “arctic research,” “judicial security and privacy,” and “incentives for states to create sexual assault survivors’ bill[s] of rights.”

McConnell clearly is not defending a principle of judicious lawmaking. He is selectively applying that principle as an argument against legislation he dislikes for other reasons. It is not surprising that a conservative octogenarian with a long history of supporting draconian drug policies and opposing marijuana legalization would resist a bill that takes an important step toward normalizing state-authorized cannabis suppliers. But McConnell is plainly wrong to describe the SAFE Banking Act as “liberal nonsense” that no conservative in his right mind could support.

The House has approved cannabis banking reform more than half a dozen times, including an April 2021 vote in which the SAFE Banking Act attracted the support of 215 Democrats and 106 Republicans. The Senate version has 42 co-sponsors, including nine Republicans. Given the SAFE Banking Act’s bipartisan appeal, you might wonder why it is still just a bill.

It’s not because the arguments in favor of the SAFE Banking Act—which include respecting state autonomy, removing burdens on small businesses, and protecting public safety by reducing the threat of robbery to marijuana merchants who currently are forced to rely heavily on cash—are persuasive only to crazy progressives. It’s because Schumer until recently refused to allow consideration of the SAFE Banking Act, insisting that his own marijuana legislation take priority and arguing that piecemeal reforms would make federal legalization harder.

“If we let this bill out,” Schumer warned in 2021, “it will make it much harder and take longer to pass comprehensive reform.” The Drug Policy Alliance, which joined Schumer in opposing the SAFE Banking Act last year, shared his concern and thought his strategy made sense. The organization bizarrely argued that passing the bill would “prioritize marijuana profits over people,” as if owners and employees of marijuana businesses, who face a potentially deadly threat that is exacerbated by barriers to financial services, don’t qualify as people.

How did that work out? “Democrats Blew The Opportunity For Federal Cannabis Reform,” says the headline above a Marijuana Moment article by Erik Altieri, executive director of the National Organization for the Reform of Marijuana Laws. “While it was always likely going to be a bit of a long shot to pass something as comprehensive as full descheduling through the Senate,” Altieri writes, “many of us at least hoped that other, more incremental marijuana reform bills would move forward.” With the exception of a modest bill aimed at facilitating marijuana research, that did not happen, thanks to Schumer and his morally obtuse allies.

The failure to pass the EQUAL Act, which would eliminate the nonsensical sentencing disparity between crack and cocaine powder, presents a similar puzzle. The bill passed the House in September, when 143 Republicans joined 218 Democrats in voting for it. The Senate version has 21 co-sponsors, including 11 Republicans, enough to overcome a filibuster. At least three additional Republican senators favor sharply reducing the crack/powder gap without eliminating it.

It certainly looks like legislation along these lines has enough support to pass the Senate. But Republican senators who had been open to including crack sentencing reform in the Consolidated Appropriations Act reportedly balked after Attorney General Merrick Garland issued a memo last Friday that instructed federal prosecutors to “promote the equivalent treatment of crack and powder cocaine offenses” in their charging decisions and sentencing recommendations.

As McConnell saw it, Garland’s memo usurped congressional authority by shielding crack defendants from mandatory minimum sentences. So instead of asserting that authority by rectifying a blatantly unjust penalty scheme, Congress has once again kicked the can down the road.

“It is a searing indictment of a broken Beltway when a bill that passed the House with an overwhelming bipartisan vote, endorsed by law enforcement and civil rights leaders alike, with 11 Republican co-sponsors and filibuster-proof majority support in the Senate, and an agreement between the relevant committee Chairman and Ranking Member for inclusion in the end-of-year package, fails to make it to the President’s desk,” said Holly Harris, president and executive director of the Justice Action Network. “The American people deserve better.”

When Booker tried to get the EQUAL Act out of committee yesterday, Cotton explained his opposition in terms that make sense only to mindlessly punitive drug warriors like him. He said he would be happy to equalize the sentences for crack and cocaine powder—but only by raising the penalties for the latter. Why? In Cotton’s view, reducing penalties for drug offenses is always bad, while increasing them is always good. Because of the power that congressional dysfunction gives Cotton and like-minded obstructionists, they do not need to muster a better argument than that.

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