District of Columbia officials and activists are grappling with a new thorn in their sides: an amendment attached to a year-end spending package targeting marijuana legalization in the District.
The “cromnibus” was passed by Congress with last-minute and late-night Senate votes over the weekend, and is en route to the president, where it will be signed into law. Though the bill contains riders in the bill aimed at a variety of D.C. social policies now considered routine, an amendment aimed at the District’s marijuana policy has fired up D.C. activists. The intent of the amendment was clear after the text was released Dec. 9: The rider was supposed to block an initiative to legalize small amounts of marijuana, which was approved by nearly 70 percent of D.C. voters in November via Initiative 71, while leaving decriminalization alone.
House Appropriations Chairman Harold Rogers, R-Ky., and ranking member Nita M. Lowey both posted in their initial online summaries that the amendment would prohibit federal and local funds from implementing the referendum. Lowey and Rogers, along with their Senate counterparts, Chairwoman Barbara A. Mikulski, D-Md., and ranking member Richard C. Shelby, R-Ala., struck a deal on the rider offered by Rep. Andy Harris, R-Md., during thier negotiations.
Harris’ amendment would have restricted federal and local funds from being used to “enact or carry out” legalization or reduce penalties for marijuana. During negotiations, the phrase “or carry out” was omitted from that provision.
The elimination of that phrase raised questions about the rider’s implications, but when asked about the omission Monday, an Appropriations aide pointed to the amendment’s goal of preserving marijuana decriminalization in D.C.
Del. Eleanor Holmes Norton, D-D.C., argues that the omission of “carry out” could allow legalization to move forward, because the referendum was “self-executing,” and therefore already enacted and not affected by the rider.
After Norton’s interpretation went public, Lowey changed her position on the effects of the rider. House Minority Leader Nancy Pelosi, D-Calif., and Rep. José E. Serrano, D-N.Y., the ranking member on the Appropriations subcommittee with jurisdiction over D.C., also supported Norton’s interpretation. Marijuana advocates, including the D.C. Cannabis Campaign and the Drug Policy Alliance, have also rallied behind Norton’s interpretation that the initiative can go forward.
Though Norton’s interpretation is gaining steam, the conflict over the rider is far from over.
The D.C. attorney general’s office has not reached a legal opinion on whether the rider allows the initiative to take effect. Neither has Attorney General-elect Karl Racine or Mayor-elect Muriel Bowser, though Bowser has said her job is to uphold the will of the people.
D.C. Council Chairman Phil Mendelson told the Washington Post he is moving ahead with plans to transmit the referendum to Congress for a 30-day review in January. Mendelson's office did not return requests for comment.
The District government could see some resistance from Congress on any move to implement the referendum. Harris’ office has sought legal advice to determine whether the District can proceed with the referendum and if Mendelson can use District funds to even transmit the referendum to Congress. The office has not reached a conclusion on its next steps.
Although Harris is working on a response to the District moving forward with legalization, activists are skeptical Harris will have many allies in the Republican-controlled Congress next year.
“As for Congress, I don’t anticipate strong resistance,” Michael Collins, policy manager for the Drug Policy Alliance wrote in an email to CQ Roll Call. “The vast majority of Republicans are not interested in having this fight, and I’m sure the last thing [Speaker John A. Boehner, R-Ohio] and [Senate Minority Leader Mitch McConnell, R-Ky.,] want is a huge spat over DC’s marijuana laws at the start of the new session of Congress.”
In addition to questions about legalization, the rider also targets any further laws relating to possession, use or distribution of marijuana, meaning the District might not be able to implement a framework regulating the tax and sale of marijuana.
A bill setting up a framework was already making its way through the D.C. Council in late November, but its sponsor, Councilmember David Grosso, said Monday he is not sure of its fate with the new rider.
"There’s been very little discussion about whether or not we can move forward and pass a legislation that would tax and regulate marijuana as I have planned,” Grosso said in a phone interview, noting that he has begun discussions with his general counsel. “Personally, I’m the kind of person that would want to push every envelope we have on this.”
Grosso will be watching how Congress reacts when Mendelson transmits the initiative in January, but he noted this conflict presents an opportunity to directly defy congressional interference in D.C.
“It’ll make us more or less likely to be prosecuted or brought to court for an act of defiance,” Grosso said, “but I think in the end we have to stand up either way.”
On Monday, D.C. activists were also planning their next moves now that the rider will be signed into law.
DC Vote held a strategy session Monday to determine its next steps. Kimberly Perry, the group's executive director, said they will support Mendelson when he transmits the referendum, work to hold the attention of the national media, and rally District residents around a broader fight for District autonomy.
“Our democracy has still been trampled on even if the initiative is allowed to go into effect,” Adam Eidinger of the DC Cannabis Campaign said in a phone interview Monday. He said he is working with local artists to develop the "Democracy statue" to be erected near the Capitol in 2015 as a central meeting place for those protesting against congressional interference in the District.
Eidinger also said he does not intend to obtain a permit for the statue. “I’m not going to ask permission,” Eidinger said. “They don’t ask permission to overturn our laws.”
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