Though some legal confusion surrounds the fate of the District of Columbia's marijuana legalization initiative, the D.C. Council defied Congress Monday by discussing a system to regulate the tax and sale of marijuana.
As if to underscore the legal issues surrounding the matter, the D.C. Council held a roundtable discussion — not a formal hearing — on the "Marijuana Legalization and Regulation Act of 2015," which would set up a structure to regulate selling and taxing marijuana. The legislation has essentially zero chance of becoming law soon, because Congress passed an appropriations rider as part of its year-end spending package barring D.C. from using federal and local funds to enact any legislation to reduce penalties for marijuana possession, use or distribution. “The elephant in the room is Congress," Council Chairman Phil Mendelson said at the event. "Voters enacted a bill to decriminalize. It makes sense, having decriminalized the drug, that then there would be some regulation." He later added, "And to the extent that there is some question about what we are doing, it’s Congress that has created this problem and we’re doing our best to understand and to do what we can.”
The discussion began with At-Large Councilmember Vincent Orange announcing that what was supposed to be a formal hearing on the bill was now classified as a roundtable discussion. The change reflected confusion over whether a formal hearing would violate the congressional rider and whether hearing participants could face legal consequences.
It is possible that conducting a formal hearing would have violated the rider, championed by Maryland GOP Rep. Andy Harris, which was signed into law in December. The Washington Post first reported that D.C. Attorney General Karl A. Racine sent a letter to councilmembers on Feb. 6, warning them not to conduct the hearing. Racine said the hearing could violate the Anti-Deficiency Act, which prohibits the D.C. government from spending money Congress has not allocated. If the D.C. Council is accused of knowingly and willingly violating that law, officials could face criminal charges where the penalties include up to a $5,000 fine and up to two years in prison.
Though Racine advises the executive branch, the legislature's legal counsel had previously argued a formal hearing would not violate any law.
"I feel pretty confident that we are on solid legal ground with holding a hearing," V. David Zvenyach, who serves as the legislature's general counsel, said in a phone interview on Feb. 6. "If the purpose of the Harris amendment was to say, 'Don’t even talk about marijuana legalization,' they would’ve said it.”
But it appeared the councilmembers wanted to avoid any possibility of a violation on Monday, which led to the announcement the discussion would be classified as a roundtable instead of a formal hearing. Later in the discussion, Orange expressed his frustration with the inability to hold a formal hearing on the regulatory bill.
"The fact that if we want to just have a hearing on a bill that’s been introduced, that’s just the fundamental right of this institution," said Orange. "And yet a couple representatives from other states decide to play in this particular playground, when they won’t do the same thing in their state, and cause havoc in this state. We can’t even have just a simple dialogue with the people who elected us to do this job."
The councilmembers present did hear testimony about the marijuana regulatory structures in Colorado and Washington, recommendations for licensing and revenue distribution, and arguments against marijuana use and legalization.
But with the rider blocking any regulations from moving forward, the discussion was symbolic and also served as a forum for some to air grievances about congressional interference in D.C. affairs.
At-Large Councilmember David Grosso, who introduced the regulatory bill, said at the start of the discussion that the issue of marijuana regulation "has morphed into a home-rule issue in a way that is not surprising, but is forever disappointing. And so we will continue to try to move this forward.”
One public witness noted he was not passionate about the marijuana bills themselves, but said legalization in D.C. exemplified the struggle for autonomy and statehood.
"I urge you all to push this forward in confronting any and all riders that treat us differently than the 50 states," Josh Burch, co-founder of Neighbors United for D.C. Statehood, said in testimony. "We must not just oppose one rider, we must oppose them all. We should openly and brazenly ignore all budget riders that Congress imposes upon us without our consent. Let’s force Congress’ hand and openly defy them."
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