On Nov. 6, D.C. marijuana activists were celebrating the news that a whopping 70 percent of District voters wanted to pass Initiative 71—-a ballot initiative that would legalize the possession of up to two ounces of pot for personal use for anyone over 21 and allow residents to grow up to six plants for personal use.
This week, activists are gearing up to try and save the law from a Congress determined to kill it.
A provision in a $1 trillion “cromnibus” spending bill that appropriators in Congress released Tuesday night prohibited the District from using any funds to enact the marijuana legalization in the city.
Say what? How can Congress kill a D.C. law that voters already passed?
Under the Home Rule Charter, Congress can block any D.C. law it wants. It often does so through the appropriations process, which gives federal lawmakers the chance to tell the District how to spend both federal and local money, rather than by passing specific legislation to block local actions.
Voters passed Initiative 71 in November, but it still needs to be sent to Congress for review, then officially enrolled as a local law. Under the cromnibus, D.C. couldn’t spend any money to do any of the technical things needed to make the measure law.
What exactly does the bill say?
“None of the funds contained in this Act may be used to enact or carry out any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative,” the bill states.
The bill reads as if it could also potentially block decriminalization. D.C. Council Chairman Phil Mendelson told the Post that “it’s bad enough that [Congress was] setting their sights on legalization, but for them to go further and undo decriminalization—it’s irrational when over a third of states have done so.”
But why would Democrats want to block legalization?
It’s not that all lawmakers want to kill the initiative; it’s more that they are taking the path of least resistance. If any member of Congress now wants to take a stand against this provision, he or she would risk thwarting an entire spending bill that would prevent the federal government from shutting down. Senate Majority Leader Harry Reid said Tuesday that while he is against the provision that meddles with local D.C. affairs, the provision is going to be hard to remove.
Doesn’t the District even have Sen. Rand Paul on its side on this one?
Yes, for what it’s worth, Paul, the Kentucky Republican who will chair the Senate committee that oversees D.C. next year, said he was against a rider that would block legalization. Last week, he told Roll Call that he would object a provision like the one that was inserted into the spending bill last night: “I’m not voting for [the spending package] anyway because I think it’s a bad way to run government, to throw all your bills together, wait til the deadline, and then in the dead of night people stick stuff in there like this that none of the rest of the ordinary members would have a say over. So no, I’ll be a no vote.”
On Tuesday, Paul’s spokesman, Brian Darling, referred City Desk to that same quote, and said the senator’s comment still stands. (Don’t be fooled, though. Paul isn’t that good of a friend of the District and in July introduced legislation to gut D.C.’s gun laws.)
What about the sale and regulation of marijuana?
There was talk Tuesday that Congress was going to include a provision in the spending bill that would allow Initiative 71 to go through, but would prohibit the District from spending any money to pass legislation that would regulate the legal sale of marijuana. At-Large Councilmember David Grosso had been in the process of holding hearings and drafting legislation to set that system up. Officials estimate marijuana could be a $130 million annual market in D.C. If this spending bill passes intact, all if this would be null.
Wait, isn’t the point of marijuana legalization that the city won’t spend any money enforcing marijuana prohibition? How does this cost money?
Everything costs money. Having D.C. employees transmit the bill to Congress, which would be necessary to enact the law, for instance, costs money. Congress is prohibiting D.C. from spending any money on enacting this bill—-even small change spending that seems petty and auxiliary to the actual substance of the law.
Are there any loopholes?
There could be some discrepancy in the language—specifically, D.C. could try to say legal marijuana was “enacted” on Election Day. In a statement this morning, Del. Eleanor Holmes Norton said it can be argued that Initiative 71 was “enacted when it was approved overwhelmingly by voters in November and was self-executing—i.e., it did not require enactment of any rules for its implementation.”
Marijuana advocates gave the Huffington Post a similar theory Tuesday, with one advocate saying he’s heard “good arguments on either side” of that potential loophole.
Congress still has to pass the spending bill and President Barack Obama still has to sign it. In the meantime, you can expected D.C. officials to be extremely pissed. Grosso told City Desk Tuesday that he will show that the District is autonomous, and even go around the law if needed.
“This is not unheard of,” Grosso said. “I just thought that Congress had grown up, but it’s clear to me they haven’t… We should challenge it, go around it even. We tend to give in too easily, and I’m not willing to do it.”
On Election Day, Norton promised to give anyone who messed with the law the “fight of their lives.” At a press conference Tuesday, City Desk asked what that fight specifically looked like, and Norton said she was “telling [Congress] how deeply she feels about the initiative.”
Any protests planned?
You betcha. The Post reports that advocates are planning a march on Wednesday from the Justice Department to Capitol Hill with some advocates potentially seeking arrest along the way.
Photo by Architect of the Capitol