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Enacted or Not Enacted? On D.C. Pot Initiative, Depends on Whom You Ask

(Tom Williams/CQ Roll Call File Photo)

   

Top Democrats in the House, including Minority Leader Nancy Pelosi, are aligning with Del. Eleanor Holmes Norton’s interpretation of an anti-marijuana rider attached to the end-of-the-year spending package.  

Norton contends  the language in the rider does not block a referendum passed by an overwhelming number of District voters that legalizes possession and cultivation of small amounts of marijuana. According to a Pelosi spokesman, the California Democrat agrees with Norton’s interpretation of the rider. The amendment prohibits federal and local funds from being used “to enact any law, rule, or regulation to legalize or reduce penalties associated with the possession, use or distribution” of marijuana in D.C.  

However, the original amendment on the table during appropriations negotiations said the District could not “enact and carry out” the changes. Norton and others are arguing that omission of “carry out” from the final amendment in the omnibus is the key to allowing the referendum to move forward because, in their view, the initiative has already been enacted.  

House Appropriations ranking member Nita M. Lowey, D-N.Y., originally believed that amendment would block the legalization initiative from going forward. But, after learning of Norton’s interpretation of the amendment, Lowey switched her position and now contends the rider should not block legalization in the District, according to a Lowey spokesman.  

But Republicans, including the ranking member on the Senate Appropriations Committee, are arguing that there is no way around the amendment, which does block the referendum. “I would hope so,” said Sen. Richard C. Shelby, R-Ala., when asked if the city would be barred from enacting legalization. He also said Congress’ interpretation “would prevail over any city.”  

For a bill to become a law in the District, a bill must be transmitted to Congress and pass a 30-day congressional review process. Republicans contend that since the initiative has not been transmitted or passed congressional review, it is not technically enacted, and therefore is blocked by the rider.  

"It's pretty clear," said Rep. Andy Harris, R-Md., who led the charge against decriminalizing pot in D.C. with a rider that was not included in the final bill. "You can't enact anything once the rider's passed. The legalization is not enacted."  

Harris said the word enactment has a very specific meaning. "It has not been enacted," he said.  

Though Norton believes the rider might not block legalization, she had hoped to erase all confusion by offering an amendment to the Rules Committee Wednesday to strike the rider from the omnibus. But Norton’s amendment was not adopted.  

”I am trying to find a way around this anti-democratic language in the bill that bullies the District of Columbia,” Norton said on the House floor Thursday. “Congress must find its way out of local affairs of the residents of this lawful city.”  

Rep. José Serrano, D-N.Y., who advocates for home rule from his post as ranking member on the Appropriations subcommittee with jurisdiction over the District, held out hope the omnibus language diverged enough from the original rider offered by Harris that it would not block the local government from moving forward. “This is a substantive difference that would be given weight in a statutory interpretation of the provision,” he said in a statement, adding that he still backed Norton’s effort to strike the rider completely.  

Sen. Ron Johnson, R-Wis., reiterated his opposition to legalizing marijuana when asked about the rider, but declined to weigh in on the specific provision. Johnson, who is expected to hold the gavel on the committee with D.C. oversight in the next Congress, previously indicated openness  to holding a hearing on the initiative during its 30-day congressional review period.  

A spokesman for the Senate Appropriations Committee was non-committal when asked about the alternative interpretation of the rider.  

Sen. Tom Udall, chairman of the subcommittee that debated the rider before the appropriations agreement was adopted behind closed doors, said he had not yet seen the specific provisions and reviewed them. "But on the whole, I think it's a very bad idea to be attaching riders to the District of Columbia."  

"They have their own government and they're able to carry out their own policy, and I think we should let them do that," the New Mexico Democrat said.  

District officials are still in the process of reviewing the rider and its potential implications. D.C. Council Chairman Phil Mendleson said in a phone interview Wednesday that he is in the process of consulting with his general counsel on the rider’s implications. Though he does not yet know the consequences of the rider, he did say that the confusion over its effects points to a larger problem of not having full representation in Congress.  

“Obviously our reaction is that it’s hypocritical that individuals who are eager to write our criminal law seem to be equally eager to block us from having representation,” said Mendelson.  

Marijuana and D.C. autonomy activists have been echoing this argument as well, saying D.C. would not be in this situation if it were a state that would not be subject to congressional review. Since word spread of a deal on the marijuana rider, activists have been outraged, marching from the Department of Justice to the Heritage Foundation Wednesday night and staging a sit-in in Senate Majority Leader Harry Reid’s office.  

DC Vote Executive Director Kimberly Perry sat in Reid’s lobby Wednesday and was back on Thursday, pledging to sit in until the Nevada Democrat agrees to offer an amendment to strike the rider from the omnibus.  

“This is not about marijuana, though, this is not about policy. This is about local democracy. We have the right to have local elections, peaceful, local elections, to make decisions and determinations about our city to solve our own problems affecting our communities,” Perry told reporters Wednesday.  

But Reid said Tuesday that if the marijuana rider is attached to the omnibus, it will be difficult to remove once the bill passes the House and heads to the Senate. Perry dismissed that argument, saying Reid can still move to strike the rider.  

“We got thrown under the bus,” Perry later added. “They better find something else. Restore democracy to the people of D.C. Sen. Reid has the power to do that and we’re expecting him to step up.”  

Related: Norton Raises Questions About D.C. Pot Rider in ‘Cromnibus’ ‘Cromnibus’ Would Bar D.C. From Legalizing Recreational Pot The 114th: CQ Roll Call's Guide to the New Congress Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.