Democrats representing jurisdictions that have voted to legalize recreational weed will roll out their congressional strategy Thursday, but federal drug regulators may be plotting to handcuff the first such ballot initiative sent to Congress for review.
A former Drug Enforcement Administration associate chief counsel, who advised investigations and prosecutions arising under the Controlled Substances Act before moving into private practice in 2012, predicts the agency will be engaged in discussions with staffers to stop the District of Columbia from joining other marijuana-legalized localities.
“No matter what the makeup of Congress is, they face a daunting task — allowing, by act of Congress, [people] to engage in something that is forbidden by federal law,” said Larry P. Cote, who now co-leads Quarles & Brady’s DEA compliance and litigation practice group and serves as the managing partner of the firm's D.C. office. Cote described it as a "Catch-22." Last week, 64 percent of D.C. voters approved a ballot initiative that would allow adults over the age of 21 to possess up to two ounces of marijuana and cultivate up to six plants at home, three of which can be mature. Election results should be certified on Nov. 20. Then — like any District law impacting the criminal code — the D.C. Council must transmit the measure to Congress for a 60-day review.
If Capitol Hill allows District residents to cultivate their own cannabis for recreational purposes, are members signaling they've changed their minds on marijuana being a Schedule 1 drug — opting for a more lenient drug policy than the President Barack Obama administration?
"It doesn't seem like there's an appetite for that in Congress at all," Cote said. Even after Obama expressed sympathy for state medical marijuana laws and decriminalization in his 2008 campaign, the Democrats controlling both chambers didn't act to relax federal drug laws, Cote said, adding that such a move would "probably create a headache for law enforcement."
Under DEA Administrator Michele M. Leonhart, the agency continues to classify pot as among the most dangerous narcotics, while supporting scientific research efforts by the Food and Drug Administration to study its medicinal properties. Federal narcotics agents have not receded from their clearly delineated enforcement responsibility under federal law, despite changes in public opinion.
Still, the pot lobby thinks D.C. has a potent chance.
"It's likely that DEA will try to defend the failed prohibition approach in this case, as drug warriors always do when reformers win at the ballot box," said Tom Angell, chairman of the Marijuana Majority. "But I don't see Congress stepping in the way of marijuana legalization — which enjoys increasing majority voter support across the country — from being implemented in the nation's capital."
A series of late-night votes on the fiscal 2015 Commerce-Justice-Science appropriations bill, including an amendment to cut funds for DEA raids on medical marijuana operations, demonstrates that "DEA and other prohibitionists are rapidly losing political clout," Angell said in an email. "Indeed, several dozen Republicans joined a big majority of the Democratic caucus in voting specifically to stop the DEA from spending money to interfere with state medical marijuana laws. No doubt DEA lobbied against that amendment, and they lost big time."
Perhaps the easiest way for Congress to kill the District's legalization law would be an appropriations rider prohibiting the city from spending its local funds to implement enforcement, similar to the language intended to block decriminalization that Rep. Andy Harris, R-Md., successfully added to a House spending bill. Harris opposes lowering penalties for pot possession on the grounds that it could increase use among teens, and he has promised to fight this local law, too.
"I really don't want to confuse the two issues," said Tommy Wells, outgoing chairman of the D.C. Council Committee on Judiciary and Public Safety. The Ward 6 Democrat pushed to lower a civil crime possession of an ounce or less of the drug, punishable with a $25 ticket, on social justice grounds. But Wells resisted calls to hold a hearing on a bill to legalize, tax and regulate sales of the drug. He fears conflating the two might undermine decriminalization efforts.
"We were the first jurisdiction in the nation to attach social justice to decriminalization and I know that the legalization folks have picked up our arguments to say this is a matter of social justice as well," Wells said in an interview at the John A. Wilson Building.
While Colorado and other states debated how a new approach to pot might reduce the drug trade or increase tax revenue, the District was the first jurisdiction in the nation to focus on disproportionate arrest rates among blacks. "In D.C., we’ve really pushed arguments more about the people that are impacted through criminalization," he said.
While Wells believes social conservatives will stop legalization before Congress even has a chance to look at the impact on federal drug regulation, D.C. Councilmember David Grosso doubts the DEA would be able to convince Congress to stop it.
"If you look at all the initiatives and all the things moving around the country, it’s not to their benefit," Grosso, sponsor of the bill to legalize and regulate pot sales, told CQ Roll Call. "There’s not like a huge opponent to this out there anymore that’s going to score them on it, like ... we hear with guns, or with the issues around reproductive health. So, it’s a question of how do you move forward. You’ve got to move forward."
Del. Eleanor Holmes Norton, D-D.C., said she gives "no credence" to talk of DEA interference. In a phone interview, Norton put her faith in the president's strong rejection of the House's attempt to interfere in the District's decriminalization law this summer and discounted the prospect of executive interference.
"Those who want to overturn this can do it without the DEA," the congresswoman said.
Related: Could Pot Become Legal in Nation’s Capital? Wells, Civil Rights Groups Push for Potent D.C. Pot Bill Eric Holder in the Hot Seat on Pot, Fired Up to Defend DOJ Enforcement (Video) Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.