What You Need To Know About The Deal Congress Just Struck To Undermine Legal Marijuana

CREDIT: AP Photo/Jacquelyn Martin

Members of Congress are reportedly poised erect a significant barrier to Washington, D.C.’s blueprint for legalizing recreational pot, tucking a provision into the federal budget via their extraordinary power to govern the District of Columbia.

Sources told the National Journal Tuesday that the budget measure agreed to by both Republicans and Democrats would thwart the D.C. Council from passing any measures to tax and regulate pot, by banning it from using its funds toward that end.

The budget item would not affect the ballot initiative overwhelmingly passed by D.C. residents in November. But make no mistake. The agreement congressional members reportedly reached today is a move to block legalization, nothing less.

When Washington voters overwhelmingly voted to legalize marijuana this past November via ballot initiative, it was intended to be a two-step process, because of limitations in D.C. law. First step, pass a ballot initiative removing the penalties for possession and small-time growth of pot. Second step, pass legislation via the D.C. Council to tax and regulate the system so that some sales, production, and distribution of pot would also be legal. These two steps together are what we typically think of as legalization. It’s what Washington, Colorado, Alaska and Oregon all did when they legalized recreational pot. But because Washington, D.C. law prevents the District from appropriating funds via a ballot initiative, legalization advocates had no choice but to go this nontraditional route to legalizing marijuana.

Members of the D.C. Council were on board with this plan. In fact, the council has already started to advance some regulation provisions. D.C. Mayor-elect Muriel Bowser was on board. Whatever wrangling might have occurred before passage, the Council would have passed a bill. But if this budget measure goes through, it won’t be able to. Without a legalization measure, Washington, D.C. has nothing more than a decriminalization measure on steroids.

The idea of legalization is that it not only removes criminal penalties for those who possess marijuana, but that it drives out the gang violence associated with black market drugs, while funneling the resources spent on drug crackdowns into public safety and education measures. As former Seattle FBI Special Agent in Charge Charles Mandigo said in support of Washington State’s legalization measure, “What’s driving all of this [violence] isn’t marijuana. It’s the money. You know, if you can address the money factor then you are addressing the problem.”

The congressional move once again throws into sharp relief the District’s second-class status as a jurisdiction with neither the voting power nor the independence of a state.

In part because the District of Columbia is not a state, Congress retains the power to block any legislation passed by the District of Columbia within a window of between 30 and 60 working days after the legislation is passed. It also controls the District’s budget, and thus can use a back-door mechanism for blocking legislation by attaching a budget amendment to defund a program.

Congress is encouraged not to exercise this power except in extraordinary circumstances under the Home Rule Act of 1973, and to otherwise treat the District of Columbia like a state. But that hasn’t stopped lawmakers from selectively blocking D.C. laws on political wedge issues as a means of taking a stand on what would otherwise be a local issue.

For 11 years, Congress used this tactic to prevent the implementation of a medical marijuana law passed by D.C. voters in 1998. They’ve taken similar measures to block gun and abortion laws. And even when lawmakers haven’t successfully blocked D.C. laws, they can coerce local lawmakers with the threat of doing so.

Last year, when D.C. decriminalized marijuana, the House took steps to once again exercise that power at the initiation of Rep. Andy Harris (R-Md.), a congressman ranked by Drug Policy Action as one of three “2014 Drug Policy Extremists,” . Ultimately while a rider to an appropriations bill was passed by the House, it died in the Senate after President Obama threatened to veto it.

Why do they do it? As Rep. John Fleming (R-LA) put it when asked why he was opposing Washington, D.C.’s decriminalization law, “This is the only place I have a say.”