Jeff Sessions Confirmation Hearings — It’ll be OK (well, for the Cannabis Industry at least)
Yesterday wrapped up the two-day confirmation hearing for outspoken anti-cannabis Senator Jeff Sessions, as the Senate decides on whether or not to confirm one of their own as President-Elect Trump’s choice for Attorney General — the chief law enforcement officer in the land.
So what did Sessions’ testimony say about how he and the Federal government will address the explosive cannabis industry in the coming years?
First, we believe Jeff Session will be confirmed, and easily. The current political environment has conservatives circling the wagons to maintain some sense of party coherence. Having a Trump candidate not confirmed would be an oversized, damaging loss.
Second, we don’t think it matters too much what he says anyway (we never did), and we will discuss why from a policymaker standpoint below. This is in addition to our previous comments on the power of Institutions to stay the course of legalization. But before that, for informational purposes, here are the cannabis highlights from the hearing:
“I won’t commit to never enforcing federal law,” Sessions said in response to Sen. Patrick Leahy’s question about conflicting federal and state marijuana laws, adding: “But absolutely, it’s a problem of resources for the federal government.
He begins with a double-negative, a technique generally used to add ambiguity to a statement. But in a clear positive, he admits to an enforcement resource problem. He also goes on to acknowledge previous AGs policies, codified in the Cole Memorandum and the Rohrabacher-Farr Amendment:
“The Department of Justice under (AG Loretta) Lynch and (Eric) Holder set forth some policies that they thought were appropriate to define what cases should be prosecuted in states that have legalized at least in some fashion some parts of marijuana.”
As a follow-up, Senator Mike Lee (R-Utah) asked about federal vs. state approaches to law enforcement.
“I think one obvious concern is that the United States Congress has made the possession of marijuana in every state and distribution of it an illegal act,” Sessions said in response to Lee. “If that something is not desired any longer, Congress should pass the law to change the rule.”
“It’s not so much the attorney general’s job to decide what laws to enforce. We should do our job and enforce laws effectively as we’re able.”
So he appears to be passing the buck to Congress. Lastly, when asked if he agreed with the guidelines put in place by the Obama administration, which includes the 2013 Cole Memo that spelled out approaches for federal agencies, Sessions responded:
“I think some of them are truly valuable in evaluating cases, but fundamentally the criticism I think that was legitimate is that they may not have been followed. Using good judgment about how to handle these cases will be a responsibility of mine. I know it won’t be an easy decision, but I will try to do my duty in a fair and just way.”
Just as we presumed, his testimony was ambiguous, overly general, and calculated. It allowed him to stick to his guns and speak somewhat against the issue, but it did not commit to or even indicate any specific enforcement plans or policies.
But let’s assume he took a harder stance and outright spoke against access policies. What are the factors that ensure the industry would not retreat into the shadows, and that it is here to stay as a victory for common sense policy?
We must first note that polls show the majority of the country, over 60% as of this last election, believe cannabis should be completely legal for responsible adult use. Also, eight (8) of the nine (9) access measures on state ballots passed.
In fact, before Rohrabacher-Farr finally passed in 2014 substantially limiting federal intervention in state-legal cannabis markets, less than 2% of Americans had access to adult-use cannabis (only Colorado), and an estimated 30% lived in states with medical use laws. Today, just over two years later, more than 20% of Americans live in states where if you are 21 or older, you can legally consume cannabis; meanwhile, a whopping 2/3rds of the country now live in states with some form of access, period.
And while Trump won the election, his progressive opponent ended up beating him handily in the popular vote.
In addition to progressives, libertarians are another voting block with rising influence. They also roundly reject prohibition of cannabis and are some of the War on Drugs’ most outspoken critics.
Lastly, those who have historically been the staunchest barriers to access — traditional conservative Republicans — are being converted in two ways. The first is the clear evidence that spending taxpayer money on cannabis enforcement is a complete and ugly waste of funds. And where the Prison Industrial Complex and Big Pharma have “helped” prevent many a lawmaker from seeing this logic, even under a big business and law and order president, their influence may wane, as these oftentimes exploitive industries’ transgressions are made public.
More important though, conservative lawmakers in states with cannabis access see money flowing in from the one type of tax they can get behind — a consumption tax. And not to mention, it’s a consumption tax on something historically viewed morally suspect to these folks. Also, make no questions about it, these lawmakers see the positive externalities medical and even adult use legalization bring to their communities, even if they cannot admit to them publicly.
Therefore, we confidently say cannabis is here to stay; even in the current political climate, we think the path to full legalization, starting with banking, isn’t all that far away. While a Trump administration with a Sessions DOJ may slow things down a bit, we think folks should have plans in the case of an overnight, sweeping change to the industry, such as rescheduling or banking completely opening up.
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What are your thoughts on Sessions testimony? Do you think access is at major risk, that the status quo will be maintained, or that the path to full federal legalization will be accelerated?
