The world hasn't come to an end. U.S. Representative Ed Perlmutter was told it would when Colorado voters legalized recreational marijuana use in November 2012 and he started introducing legislation in Congress that would aid the industry as businesses began to struggle with banking problems, among other issues.
Now, as President Donald Trump takes the oath of office, Perlmutter says he's not finished fighting for marijuana legalization at the federal level. Perlmutter's Financial Services and General Government Appropriations Act was struck down last summer. Had it passed, it would have banned federal regulators from penalizing financial institutions for providing banking services to legal marijuana businesses; Perlmutter is planning to try again this session.
On the eve of the inauguration, we spoke with Perlmutter about how he plans to work with the Republican-held House to get that legislation passed, picked his brain about Jeff Sessions's appointment as attorney general, and discussed the DEA's new rule for marijuana extracts.
Westword: Last summer, your legislation that would have banned federal regulations from penalizing financial institutions for providing banking services to legal marijuana businesses was struck down. This is still a major issue confronting the industry in Colorado and around the country. Are you hoping to tackle the problem again in the upcoming legislative session?
Representative Ed Perlmutter: I've sponsored legislation since about 2013, after we legalized it, on access to banking. The main reason is if a state has...either medical marijuana or fully legalized marijuana and then has a regulatory structure in place, they ought to be able to operate like any other businesses: having credit-card accounts, checking accounts, payroll accounts.
Under the federal law, that's been difficult. We don't want these businesses to accumulate a ton of cash and be the target of criminals.... There's a public-safety aspect to this, and that's really where I was coming from when I first introduced it a few years ago, and we've continued to introduce it as more states have either legalized it or added medical marijuana to their laws. So far we haven't gotten through, but we're getting there.
Do you hope to bring the issue forward again in the upcoming legislative session?
Yes, I will. I had actually spoken to a Republican colleague of mine who came up to me and wanted to be the chief sponsor and I would be the secondary sponsor. [It] would be great in a Republican Congress to get it through. Trouble is, that guy is getting appointed to the administration, so I'm going to have to go find somebody else.
I saw that you said you may join the Cannabis Caucus. Are you going to join, and if so, what do you hope to accomplish?
We want to build a bipartisan effort, because I think we're up to forty or so states that have some level of marijuana use. We want to develop the caucus and put together legislation so that state laws aren't running headlong into the federal law, and the federal law provide states the ability that if a state has a good regulatory structure in place to monitor and manage the marijuana businesses, then leave that state alone. If other states don't want it, then the federal law is in place.
[It's about] states' rights and allowing these businesses where the people have said, "We think some level of marijuana use is okay" — let those states move forward. Right now they're very contradictory. They really are in conflict, and the Obama administration, through the Cole Memo, tried to bridge this conflict a little bit by saying if a state or a marijuana business goes through a bunch of different hurdles, then we, the Obama administration and the Justice Department and the Treasury Department, we've got other things to work on, and we're not going to focus our efforts on that, but you've got to go through those hoops. From administration to administration, the memo could be followed or ignored. We could, by legislation, do the very same thing, even make it a stronger law than a memo — stronger than a guidance.
Jeff Sessions called out Congress during his confirmation hearing, saying "Congress has made the possession of marijuana in every state an illegal act" and that "If that is not desired any longer, Congress should pass a law to change it. It's not the Attorney General's job to decide which laws to enforce." With your background in bringing marijuana legislation to the floor, are you going to work with the Cannabis Caucus to try to change the laws we have on the books?
He also said the Justice Department has limited resources. He was kind of being coy with his answers, but both things are true. Congress should address this. It's time. Most of the people in America live in a state where there is some level of marijuana use, and the federal law is in complete conflict with that. We need to fix that. So he's right on that point. He's also right that the justice department has limited resources. Is he going to go after violent, hard-core criminals, or is he going to go after a business that's operating legally in their state? Where does he assign his people?
So how do you see yourself working with your colleagues to address marijuana in Congress?
Well, something you brought up, the Cannabis Caucus, is a good place to develop our strategies. There are a number of pieces of legislation that have been proposed. Jared Polis has one or two pieces, a guy named Earl Blumenauer from Oregon, Dana Rohrabacher from California, Susan DelBene from Washington — so there are pieces of legislation, and what we need to do is get momentum going in Congress.
We run into a couple of problems where, say, the chairman of my financial services committee, which is the banking committee, a guy named Jeb Henarling, to this point has just been adamantly opposed to any marijuana legislation. We really have not had any hearings, but on that committee, they know it's a big issue, so if we knock on the door enough, eventually the door is going to open and we're going to get some hearings and move this.
We know that on the floor of the House, out of the 435 of us, there's a majority — about 180 Democrats, and 50 or so Republicans — to pass marijuana legislation, if we could get to the floor through the committee process. So our job is to work together to gather as much...I think it will be bipartisan support, primarily Democrats, but there are certainly Republicans who are interested in working on this, and we've got to move it forward.
I'd like to work with Kevin McCarthy from California. California just passed fully legalized marijuana and he, on behalf of his state, needs to take a good hard look at this.
The industry has been affected this past year by announcements, and non-announcements, by the DEA. Last month things changed for the medical community when the DEA issued a statement that businesses that produce products with CBD and marijuana extracts have to register with a new code. The Hoban Law Group is taking the DEA to court over that new rule, saying it is "beyond the agency's authority." What do you think of the DEA's new rule and its decision to implement this new rule instead of rescheduling marijuana, as many in the industry had hoped?
I was surprised. I thought they were going to go the other direction. They really did a kind of switcheroo. I still don't understand.
Do you think that move will have implications for you as you and your allies in Congress try to get new legislation passed?
Yes, but I'm going to try and take a positive approach from it. Now, by their newest rule, the conflict is clearly defined now. They're taking a position that marijuana is illegal — extracts, medical, whatever that might be — and they intend to enforce that, contrary to the Cole Memo and contrary to other positions they've taken, which means Congress had better address this.
So you're saying it could be a benefit?
In a backwards sort of way, yes. We've got to address it... but it's not going to be easy. We still need a hearing. We need to get something to the floor. The Senate was very steadfast in their opposition to marijuana for a long time, but they're starting to move. So both the Senate and the House really need to bring this to the floor and have hearings and allow the legislation to move forward.
I'm a little bit optimistic about it because of California's passage. The majority leader is from California, and the individual who came to me, he asked to take the lead on this, and he said, "I think we can move this." Both of those things are positive for moving this forward. It's been difficult, but we've seen some appropriations bills where we can pass amendments. We need to change the law, but at least we know there's a majority on the House floor to do something.
President-elect Trump is taking the oath of office. How do you hope to get any legislation through with the divisiveness we're seeing in Washington?
If we can get some hearings, I think we really can start moving this; chairmen in the House of Representatives are in powerful positions to move something forward or to block it. So we've got our work cut out, but...when I first started bringing this up a few years ago, people would chuckle: "Oh, it's Colorado, it's marijuana." Well, they don't chuckle about it anymore. They know it's serious business and that these businesses really do need to operate like any other business. They understand that there are benefits; the medical component of this seems to be better understood, so the chuckle factor seems to be dying away and we're seeing real debate and real conversation.
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So as you're working with your colleagues to try to get a hearing and, ultimately, new legislation passed, what can voters do to help?
The California voters can certainly be in touch with their legislators. Same thing holds true for Maine and Massachusetts and Alabama. Each state that is allowing some level of marijuana use, those people, those citizens in those states, need to be in touch with their senators and their representatives as well as the White House and the potential attorney general, Jeff Sessions.
The veterans who find that medical marijuana either helps them with injuries they suffered or PTSD, the veterans' community needs to continue to speak up. They've been pretty vocal, and they've got to continue to be vocal. Those men and women who served the nation and, as a result, suffered some trauma — we need to respect them and their service and their requests. They carry a lot of political clout.