Compared to his Democratic primary challengers, Biden was tepid about legal marijuana's future in America and refused to endorse federal legalization on the campaign trail; as recently as 2019, he said that marijuana was a gateway drug. However, Biden softened his stance on the dangers of marijuana use as the campaign progressed, and his vice-presidential pick, Senator Kamala Harris, had already flipped after a career in criminal prosecution, even sponsoring a bill in Congress that would have legalized marijuana nationwide.
That bill didn't get far, which shows why the election's most important cannabis connection might not be who's in the White House, but who wins the two Senate seats in Georgia. Those run-off elections could potentially flip the Senate majority from Republican to Democrat, and a Democratic majority in the Senate could make more changes in pot policy than Biden, according to Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws.
Marijuana reform bills approved by the U.S. House of Representatives, including legislation that allows marijuana businesses to access banking services and another bill that would end federal prohibition, haven't received a full vote in the Republican-controlled Senate under Majority Leader Mitch McConnell.
"I think there has to be some perspective with respect to the limitation of the powers of the presidency. It would be largely unprecedented for a president to issue an executive order with respect to drug policy," Armentano explains. "The most important element of this election was and still is the matter of what party controls the Senate. If the GOP retains control of the Senate, you can expect the status quo by and large to continue."
But Biden can still push for changes in marijuana policy. For many legalization proponents, some of this change will be in the form of addition by subtraction after President Donald Trump and his administration leave the White House. After all, Trump's first U.S. Attorney General, Jeff Sessions, killed federal protections for state-legal pot businesses, and a memo leaked from the White House espoused plans to undermine past and current state marijuana legalization efforts.
"I think the industry was largely leaning toward a Biden presidency. Trump had four years to instruct his party to move forward with cannabis policy reform, but it never happened. While he voiced vague support for states' rights, some members of his administration were outright hostile to the possibility of reform, and actively targeted the industry," Morgan Fox, communications director for the National Cannabis Industry Association, says in an email. "Neither Trump nor the RNC took an official public position on the issue this year. The Biden campaign, while not having an ideal position, was definitely taking a positive stand and increasingly prioritizing the issue in its public statements, particularly as it relates to social and criminal justice issues."
On election day, five more states approved recreational and/or medical marijuana legalization. But even in states where the plant is legal, marijuana businesses are still largely denied access to banking and loan services — one of many obstacles the industry faces because of the federal prohibition against cannabis.
As the first state to begin recreational marijuana sales, Colorado has suffered from these obstacles for the better half of a decade. "To us, the status quo is a complete lack of progress," says Peter Marcus, communications director for dispensary chain Terrapin Care Station. "President Trump made no effort to vocally back or try to advance policies around cannabis banking. I know he had privately expressed support...but we never saw any actions materialize."
On the campaign trail, both Biden and Harris pledged to decriminalize marijuana and expunge prior low-level convictions, but Marcus doesn't see that impacting the legal pot trade. (Those goals were omitted from a criminal justice reform plan recently published on the incoming administration's transition website, but a Biden staffer told Marijuana Moment that “nothing has changed" in regard to plans for marijuana decriminalization.)
"Decriminalization is mostly for states without legal marijuana, so I don't see that having an effect on Colorado. When you start having the conversation about descheduling cannabis and potentially opening up the industry to interstate commerce, that's when the conversation really opens up," Marcus predicts.
A former political reporter, Marcus believes that Biden could set up a kitchen cabinet of unofficial advisors to advise him on the pot industry, including future banking reform. Unless and until talks about removing marijuana from the Controlled Substances Act materialize, though, Marcus doesn't see Colorado's marijuana industry being directly affected by Biden.
Industry stakeholders did watch the state's U.S. Senate election, in which incumbent Cory Gardner lost his seat to former governor John Hickenlooper. Although Hickenlooper was governor during Colorado's approval and implementation of recreational marijuana, past anti-pot remarks and vetoes of marijuana-friendly bills haven't been forgotten by the pot industry. Meanwhile, Gardner was one of the few Senate Republicans who vocally supported marijuana legalization, a valuable tool in a divided Congress.
"A lot of the cannabis industry was generally nervous, and is generally nervous, about Gardner losing. The thinking is and was that it's difficult to flip the Senate, so you need a Republican champion in there like Gardner. That being said, we haven't seen any progress for years, because it all comes down to [Senate Majority Leader] Mitch McConnell," Marcus explains. "Hickenlooper's staff had calls with the cannabis industry during the campaign. His staff certainly was engaging with us and wanted to learn more about the issue."
Last week, NORML released a public letter recommending that Biden install an attorney general who favors pot legalization. If he does, that would be a huge win for marijuana proponents, Armentano notes.
"What Biden does have the power to do is set a tone and make it clear that a Biden administration is going to prioritize criminal justice reform, and marijuana policy reform is a clear component of that," he says. "There are certainly things Biden can do. Perhaps that's making some marginal changes in policy or through appointments — but ultimately, it was Congress that enacted bad marijuana laws, and it needs to be Congress that changes them."