Cory Gardner and politics as the art of the possible

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Gage Skidmore

Last month, Colorado Republican Senator Cory Gardner got President Trump to support legislation that would allow states to decide whether or not to legalize marijuana without federal interference.

Since then, Gardner and Massachusetts Democratic Senator Elizabeth Warren have been drafting a bipartisan bill to do that.

According to marijuana journalist/activist Tom Angell, details about what’s in the bill are starting to emerge.

Angell, writing at the website Marijuana Moment, says the bill’s key clause amends the Controlled Substance Act to exempt state-legal marijuana activity from the act’s provisions, “with a few carve-outs such as prohibiting marijuana distribution at rest areas and truck stops.”

In other words, the bill essentially writes the Cole Memorandum, which Attorney General Jeff Sessions revoked last January, into federal law. The Cole memo, which was a product of the Obama-era Department of Justice, had said the feds would refrain from enforcing federal anti-marijuana laws in states that had legalized marijuana, provided state marijuana laws were being followed.

Gardner went ballistic after Sessions revoked the memo, because Sessions had promised Gardner he wouldn’t do so prior to being confirmed as Attorney General. That prompted Gardner to block Senate consideration of a number of Trump administration appointees to high-level Justice Department positions until Sessions reconsidered, or something changed.

The thing that changed was that Trump came out in favor of a states-rights-based legislative fix.

Also, the bill states that compliant financial and banking transactions are not trafficking and do not result in proceeds of an unlawful transaction, Angell reports. And it amends the federal definition of marijuana to exclude industrial hemp.

What the bill doesn’t do is alter marijuana’s classification as a Schedule I controlled substance (along with heroin) in the Controlled Substances Act. The bill leaves that outrage intact, while giving states a way to opt out of the act insofar as marijuana is concerned.

That’s being done for the best of reasons: The Gardner-Warren bill will have a much better chance of passing if it casts legalization as a states-rights issue instead of as an issue of explicitly legalizing marijuana at the federal level.

Thus the bill’s title will be the “Strengthening the Tenth Amendment Entrusting States (STATES) Act.”

The 10th Amendment to the Constitution states that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Passage of the Gardner-Warren bill is not a slam dunk, even with Trump’s support.

Most of the bill’s supporters in the Senate are apt to be Democrats, who are currently the minority party, so the bill will need some Republican support, enough to put it over the top even if all the Democrats in the chamber vote in favor. And it will need additional Republican support if there are Democratic nay votes or if anti-marijuana senators attempt a filibuster. In a worst-case scenario, the bill might need 10-15 GOP votes to get through the Senate.

There are five Republican Senators in states that have legalized recreational marijuana: Gardner (Colorado), Lisa Murkowski (Alaska), Dan Sullivan (Alaska), Susan Collins (Maine), and Dean Heller (Nevada). Moreover, Ted Cruz (Texas) is on record as in support of leaving marijuana legalization to the states.

There are several other Republican senators who represent red states (like Florida and Arkansas) that have legalized medical marijuana. For them, supporting a bill that exempts their states from the anti-pot provisions of the Controlled Substances Act on states-rights/10th Amendment grounds will be much easier than being asked to support a bill that amends the act itself to make pot legal.

Similar arithmetic exists in the House of Representatives; the bill will need a number of Republican members to vote yes, even though the Republican base in their districts may be anti-pot. But those members may be able to vote “yeas” on states-rights/10th Amendment grounds without losing their base supporters, and even pick up some independents in the bargain.

Finally, there’s Trump. During the campaign he supported leaving marijuana legalization to the states. But he also has well-known personal anti-drug and -alcohol views. And while he promised to support leaving marijuana legalization to the states, he didn’t promise to support legalizing it at the federal level. Trump makes a point of keeping his campaign promises. That’s probably why Gardner has his support.

Politics is the art of the possible. Gardner and Warren seem to have a pretty good handle on that.