Senator Cory Gardner's shot at protecting states with legal marijuana programs was blocked on December 18, when his states'-rights amendment was sent into the rafters by Iowa Senator Chuck Grassley.
Colorado's Republican senator has been pushing for more guaranteed protection from federal encroachment on state-legalized marijuana industries and consumers, as well as for any banks that want to provide services to them. On December 17, he attached an amendment to the First Step Act, a set of legislative reforms to the federal prison system, that would have done just that.
The next day, Gardner gave an impassioned speech on the Senate floor, just hours before he and his colleagues voted on the First Step Act:
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But being from Colorado, it is hard to think about federal criminal justice reform without thinking about the biggest problem the federal criminal law creates for Colorado: the refusal to respect the will of Coloradans when it comes to marijuana. Every day, Coloradans of good faith follow Colorado law to a T, yet they are still criminals in the eyes of the federal government. Cancer patients using medical marijuana to control their pain and veterans who are using marijuana to alleviate the PTSD they suffer because they served their country – federal law says they are criminals. The People do not think that. So the federal law should change.
This disconnect doesn’t just affect the industry’s patrons, or even just its growers and retailers for that matter. It also makes criminals of those outside the industry. Plumbers, electricians, bankers, landlords and real estate service providers, employment and advertising agencies, insurance companies, HR services, and all of the everyday businesses that interact with the marijuana industry (like they do any other part of our economy) are affected by the federal law, too. That’s because when they take money from a marijuana business federal law considers them money launderers – putting them at risk for both criminal liability and civil asset forfeiture.
The disconnect forces Colorado’s $1.5 billion market into the pseudo-shadows, where business is in hard-to-track cash, inviting dangerous robberies and hindering law enforcement efforts to ensure that legal marijuana sales benefits legitimate businesses rather than illicit cartels. It also means that researchers can’t test marijuana for medical efficacy or to help better understand impairment because those researchers fear losing federal funding.
But Gardner's attempt had been blocked even before he made that speech, when vocal legalization opponent and Senate Judiciary Committee Chair Grassley killed the amendment. A fellow Republican, Grassley said he "respected" Gardner, but said that states' rights in regard to marijuana should be addressed in its own legislation.
"If there is an attempt to legalize [marijuana] across the country, we should have that debate and let Congress decide the issue instead of creating a back door to legalization," he said on the Senate floor.
Without Gardner's amendment, the First Step Act easily passed, 87-12. Later that day, Gardner sent out a tweet with a video recording of his speech and a vow that hat he "will not give up this fight."
Over 95% of the US population lives in a state where some form of marijuana is legal. This isn't a fluke, the American people have spoken and this is happening. My amendment to the First Step Act has been blocked, but I will not give up this fight.https://t.co/knL8kgnkOl pic.twitter.com/wQDAx9AONZ— Cory Gardner (@SenCoryGardner) December 18, 2018
Because of the plant's federally illegal status, legal marijuana remains largely a cash-only business, with major financial institutions scared off from providing services for fear of federal racketeering charges. Gardner had hoped that attaching his policy reform to a larger bill would make approval more likely than pushing the same legislation through the States Act, a bipartisan bill he introduced with Massachusetts Senator Elizabeth Warren in June.
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Attaching the States Act to another bill is still an option, and with Grassley announcing that he intends to step down as chair of the Senate Judiciary Committee in order to take a different leadership position, Gardner's chances could improve; Utah Senator Lindsey Graham is taking over as committee chair.
Although he's come out against recreational legalization in the past, Graham has recently shown more willingness to listen to medical marijuana policy reform and other rational marijuana-related measures — certainly much more than Grassley.
Gardner released a statement shortly after he tweeted, expressing support for the overall success of the First Step Act and vowing to continue pushing for the act he and Warren introduced.
"Although I thought my amendment that would have ensured each state has the right to determine for itself the best approach to marijuana within its borders should have been included in this criminal justice reform package, I still supported the final measure because it will have a real impact on how we help people reenter society after they have served their sentence," he says. "The Senate proved Tuesday night that we can accomplish big goals if we work together on behalf of the American people, and I hope we can continue this bipartisan spirit of cooperation. I will continue to push for my bipartisan States Act to receive a vote in the Senate, but I'm proud of what we were able to accomplish on Tuesday."