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Biden, Sanders 2020 campaigns aim for looser federal cannabis restrictions

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U.S. cannabis legal reform efforts are likely to gain momentum if a Democrat enters the White House in November, experts say.

Former Vice President Joe Biden supports the legalization of medical cannabis but thinks it should be up to states to decide whether to legalize it for recreational use. Sen. Bernie Sanders pledges to legalize marijuana in his first 100 days in office. The candidates both support decriminalizing cannabis and expunging prior convictions for using it.

As of March 31, Biden leads Sanders in the number of delegates needed to win the Democratic nomination, though Sanders remains in the race, according to The Associated Press.

President Donald Trump, meanwhile, has not taken any significant actions regarding cannabis policy since his presidency began in 2017. Former Attorney General Jeff Sessions in 2018 rescinded an Obama-era policy to not interfere with state marijuana laws, but in August 2019 said the administration is allowing states to decide cannabis laws for themselves.

Experts say differences between the candidates on cannabis policy are unlikely to sway the election, but they tie in with broader views on criminal justice and economic opportunity. With the U.S. scrambling to respond to the new coronavirus pandemic and an international oil price war roiling markets, there may be less room for a full-throated debate over U.S. cannabis policy, but progress could be expected on niche issues related to marijuana, experts said.

"I question whether there's going to be some big law that's passed that just legalizes cannabis and everything's okay," said Jeremy Unruh, PharmaCann LLC's director of public and regulatory affairs, in an interview. He said there are "tangential issues that could probably be sorted out."

Meanwhile, it is now easier to count the number of states in the U.S. without any type of marijuana program as efforts continue to expand existing laws. All but four states have some form of legalized marijuana use, mostly for medical purposes.

States continue to consider expanding and refining their cannabis markets as Congress debates bills to liberalize federal cannabis policy. Businesses, meanwhile, can operate within states that have legal cannabis programs but cannot engage in interstate commerce or access banking and other resources open to most other industries.

The Biden, Sanders and Trump campaigns did not respond to requests for comment.

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Legal issues

A key difference between Biden and Sanders is how each would handle the legal classification of cannabis at the federal level.

The federal government considers marijuana a drug with no accepted medical use and a high potential for abuse, within the same class of controlled substances as heroin and LSD. This designation makes cannabis illegal at the federal level and keeps most financial institutions from working with the industry.

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Former Vice President Joe Biden would leave states to decide whether to legalize recreational cannabis use.
Source: AP Photo

Biden's plan calls for grouping cannabis in the same class of drugs as cocaine and methamphetamine, which would let researchers study marijuana's positive and negative impacts. Sanders wants to remove marijuana's designation as a controlled substance completely.

Under marijuana's current federal classification, the U.S. Food and Drug Administration has deferred enforcement of federal policy to the Drug Enforcement Administration, said Steve Fox, president of VS Strategies, a cannabis policy consulting firm, in an interview. The FDA could feel the need to get more involved if Biden's plan was put into practice, he said.

"It's unpredictable how that would play out," Fox said. "It would make a lot more sense to de-schedule cannabis at the federal level and essentially treat it like alcohol."

Biden has faced criticism from Democrats for his work on a 1994 crime law that some feel fueled the war on drugs and mass incarceration.

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Sen. Bernie Sanders has pledged to legalize cannabis during his first 100 days in office if elected.
Source: AP Photo

Sanders' stance on cannabis falls more in line with industry advocates, who take a more critical view of Biden's approach. Sanders also wants to ban tobacco and cigarette corporations from participating in the marijuana industry and prevent consolidation. Some question his rhetoric around legalizing marijuana nationwide given that states could opt to keep cannabis illegal in a way analogous to the persistence of dry counties.

"He can't tell Alabama that they have to make it legal," John Hudak, a senior fellow at the Brookings Institution, said in an interview.

More supportive than passionate

Support for marijuana legalization is more widespread than it has been in 40 years, but the issue rarely has a big impact on presidential elections, Hudak said.

A 2019 Pew Research Center survey found 67% of Americans think cannabis should be legal, up from 41% in 2010 and 12% in 1969.

"This is an issue that a lot of Americans support and almost no Americans care deeply about," Hudak said. "There are issues related to cannabis like criminal justice reform, like economic opportunity in disadvantaged communities and neighborhoods, that people do care deeply about, but cannabis in and of itself is not that issue."

Still, some see ways Biden and Trump could use the issue to their advantage, whereas Sanders is already about as progressive as one could be on the issue.

Were Biden to come out in favor of legalization, it could help him curry favor with younger voters, but such a policy change would have to be handled and explained in the right way or risk seeming disingenuous, Hudak said.

"I think if (Biden) simply switches without that sort of conversation, which would also include either explicitly or implicitly a mea culpa for some of the past positions he's held and policies he's supported, I don't think it's going to be that effective with younger voters because I think they're going to see it as pandering," Hudak said.

Trump, likewise, could come out in support of legalization to try to gain votes during the campaign or, if he wins a second term, as a potential feather in his cap, experts said.

"Donald Trump is probably uniquely positioned as a Republican president to try to reform cannabis or show leadership on reform of cannabis without worrying about much fall-off in his base," Hudak said. "For any other Republican, I think there's a fear of how evangelical Christian Republicans would react to this."

Beyond the White House

Experts said Congress and statehouses across the country could make more progress at their own efforts to develop cannabis policies, though it is unclear exactly how these measures will proceed as all levels of government deal with the fallout from the coronavirus outbreak.

New Jersey, which has a medical cannabis program, will decide on a constitutional amendment to legalize cannabis in November. Other states that could see ballot measures include Arizona and Montana, Fox said. In New York, Gov. Andrew Cuomo made expanding on the state's medical program a priority, though the move could be complicated by the coronavirus outbreak in the state.

Federal lawmakers, meanwhile, are considering issues including the ability of cannabis businesses to access traditional banking, expanding the ability to provide cannabis for veterans' medical use and the expansion of research.

"Those are three tangential issues that could probably be sorted out, but the bigger question (of legalization) is going to involve this big social equity debate," Unruh of PharmaCann said, referring to the desire by some for prioritizing addressing the disproportionate impact the War on Drugs has on communities of color.

The House of Representatives in September 2019 passed the SAFE Banking Act, which would ease restrictions on the ability of banks and insurance companies to work with cannabis-related businesses. The bill continues to be debated in the Senate.

Meanwhile, the House Committee on Veterans' Affairs on March 12 passed a pair of bills that would allow the Department of Veterans Affairs health providers to advise veterans about participating in state marijuana programs and require a clinical trial on how cannabis affects veterans with chronic pain and post-traumatic stress disorder.

"Cannabis policy could be determined by the shape of Congress," Fox said. "If you see the Democrats take over the Senate and therefore have control over committees and so on, there's a far greater possibility that real fundamental change could occur."

Some view the winding progress made on legislation like the SAFE Banking Act as a reason to believe even a Republican-controlled Senate could advance some kind of cannabis reform even if a Democrat took over the White House. More pessimistic observers think reform is less likely in the near term given the Senate has yet to pass cannabis legislation.

"A lot of the federal policy opportunities, meaning the SAFE Banking act or some of the other bills that are swirling around that have been introduced and are sitting in committees right now, I think that a lot of that activity has stagnated because we are in an election year and nobody really knows where this is going," Unruh said.