Congress’ Summer Fling With Marijuana

July 31, 2015
In The News

How Congress turned on the DEA and embraced weed.

By JAMES HIGDON

July 30, 2015

Politico Magazine Illustration/iStock.

It’s not easy being the DEA these days. After an unprecedented losing streak on Capitol Hill, the once-untouchable Drug Enforcement Administration suffered last week what might be considered the ultimate indignity: A Senate panel, for the first time, voted in favor of legal, recreational marijuana.

Last Thursday, the Appropriations Committee voted 16-14 on an amendment to allow marijuana businesses access to federal banking services, a landmark shift that will help states like Colorado, where pot is legal, fully integrate marijuana into their economies. As significant as the vote was, it’s only the latest vote in a remarkable run of success marijuana advocates have had this year on Capitol Hill.

“The amendment was a necessary response to an absurd regulatory morass,” Montana Sen. Steve Daines, one of the three Republicans to support Thursday’s amendment, tells Politico, referring to the multifaceted and complex system of laws that have been enacted over the past four decades to prosecute a war on marijuana. It’s a war that began on or about May 26, 1971, when President Richard Nixon told his chief of staff Bob Haldeman, “I want a goddamn strong statement on marijuana ...I mean one on marijuana that just tears the ass out of them.”

But that war appears to be winding down—potentially quickly. The summer of 2015 could be viewed historically as the tipping point against Nixon’s war on pot, the time when the DEA, a federal drug-fighting agency created by Nixon in 1973, found itself in unfamiliar territory as a target of congressional scrutiny, budget cuts and scorn. In a conference call this week, the new acting DEA administrator repeatedly downplayed marijuana enforcement efforts, saying that while he’s not exactly telling agents not to pursue marijuana cases, it’s generally not something anyone focuses on these days: “Typically it’s heroin, opioids, meth and cocaine in roughly that order and marijuana tends to come in at the back of the pack.”

What a difference a year makes.

Once upon a time—in fact, just last year—then-DEA Administrator Michele Leonhart could dismiss President Barack Obama’s views on marijuana in public and get away with it because she had friends in Congress. After Obama said he believed marijuana was less dangerous than alcohol, Leonhart lambasted her boss as soft on drugs—and criticized the White House staff for playing in a softball league that included advocates from a drug reform group.

Then, she tried to bigfoot Sen. Mitch McConnell over his farm bill hemp provision; she slow-walked Sen. Chuck Grassley for three years over his questions about the DEA’s improper detention of a San Diego college student; and she was downright dismissive of an inspector general report that showed her agents had sex with prostitutes in Colombia who were paid for by the drug cartels the agents were supposed to be fighting. One by one, Leonhart eliminated all her friends in Congress, even as national attitudes about marijuana were shifting under the DEA’s feet.

The day after Leonhart’s appearance before the House Oversight and Government Reform Committee, when she admitted she didn’t know if the prostitutes used by DEA agents were underage, Chairman Jason Chaffetz (R-Utah) and ranking member Elijah Cummings (D-Md.) issued a joint statementexpressing no confidence in Leonhart’s leadership. The next day, Leonhart retired, a move Chaffetz and Cummings deemed “appropriate.” That was April.

In May, the Senate made history by voting in favor of the first pro-marijuana measure ever offered in that chamber to allow the Veterans Administration to recommend medical marijuana to veterans. Then when June rolled around, it was time for the House to pass its appropriations bill for Commerce, Justice and Science. That’s when things got interesting. The DEA got its budget cut by $23 million, had its marijuana eradication unit’s budget slashed in half and its bulk data collections program shut down. Ouch.

In short, April was a bad month for the DEA; May was historically bad; but June was arguably the DEA’s worst month since Colorado went legal 18 months ago—a turn of events that was easy to miss with the news crammed with tragic shootings, Confederate flags, Obamacare, gay marriage, a papal encyclical and the Greece-Euro drama. July hasn’t been any different, with the legalization movement only gaining steam in both chambers of Congress.

The string of setbacks, cuts and handcuffs for the DEA potentially signals a new era for the once untouchable law enforcement agency—a sign that the national reconsideration of drug policy might engulf and fundamentally alter DEA’s mission.

“The DEA is no longer sacrosanct,” Rep. Steve Cohen (D-Tenn.) tells Politico.

The national tide is clearly not in the DEA’s favor. Since Colorado legalized recreational marijuana in January 2014, three additional states have followed suit with full legal weed; the District of Columbia’s fight to legalize continues; the number of medical marijuana states has grown to 23; 14 states have legalized nonpsychoactive CBD oil; and 13 states have legalized industrial hemp, spurring a rapidly expanding legal market for a plant long demonized by the DEA.

At the same time, a national debate about the high costs of sending millions of people—many of them young black and Hispanic men—to prison for nonviolent marijuana offenses has led to increasing questions about whether the zero-tolerance enforcement favored by DEA is the right way to proceed.

That marijuana reform is moving along in Congress at all is a sign of just how far—and fast—the landscape has shifted. Much of the recent uptick of reform voices are actually coming from Republicans, long tough-on-crime legislators who were stalwart opponents of marijuana. In a sign of just how far the sands have shifted, Sen. Lindsay Graham, a Republican candidate for president, tells Politico that he believes, “Medical marijuana holds promise.”

It’s no longer political suicide to be seen on Capitol Hill as backing drug reform. “There clearly is momentum, absolutely,” says Rep. Ted Lieu (D-Calif.), a former Air Force JAG officer who replaced Henry Waxman as the congressman from Beverly Hills.

“It’s the first time we’ve ever been able to show momentum in Congress,” Dan Riffle of the Marijuana Policy Project tells Politico.

The looming cuts has the Justice Department issuing dire warnings: “If enacted, the House budget would cause DEA to experience a significant shortfall in their FY16 budget that would severely inhibit their ability to carry out their mission of stopping the manufacture and distribution of illicit drugs,” says Patrick Rodenbush, a spokesman for DOJ.

But unlike such dire warnings in the past, when Congress could be assured of protecting funding for a law enforcement agency seen for decades as key to winning the War on Drugs, the shine has now clearly come off DEA—and that means the agency’s problems might just be beginning.

Before last year, marijuana reform had never made it very far in Washington. For decades, it appeared that DEA had no better friend than Congress, a body that blindly believed everything  DEA told it about the dangers of weed. In 1998, the first time Congress voted on medical marijuana, it was an anti-medical marijuana House resolution co-sponsored by nine Republicans (including Rob Portman and Dennis Hastert), which passed 311-94.

The first pro-marijuana resolution to get a vote was 2003, a measure that prevents the federal government from interfering with state-legal medical marijuana programs. In 2014, after eight tries, that measure, known as Rohrabacher-Farr, finally passed by a vote of 219-189 as an amendment to a larger appropriations bill. Today, though, nearly all of the momentum now appears to be on the side of legalization. On June 3, 2015, Rohrabacher-Farr was renewed with a vote of 242-186. “That’s a significant uptick,” Riffle says.

Last year, a similar amendment by Rep. Thomas Massie (R-Ky.) to protect state-legal industrial hemp programs passed 237-170. This year, it passed 289-142, just on the cusp of a veto-proof majority, a threshold that sponsors are always shooting for even if there’s no direct veto threat from the president.

A third amendment sponsored by Rep. Scott Perry (R-Pa.) to protect state-legal CBD oil programs to treat epilepsy passed 297-130, crossing the threshold into a veto-proof majority. Massie attributed the Perry amendment’s popularity to the fact that “people recognize the value to society of a new drug that could treat epilepsy.”

Massie hopes the success of these amendments will spur House leadership into moving stand-alone bills—like his hemp bill, H.R. 525, and Rohrabacher’s marijuana bill, H.R. 1940—through the normal committee process. Both bills would amend the Controlled Substances Act so that it does not apply to anyone acting properly within a state-legal program, and Massie’s bill would force the executive branch to recognize a distinction between marijuana and industrial hemp.

Massie and Rohrabacher, both Republicans, have become major cannabis backers in Congress for no other reason than representing their home constituencies: Rohrabacher is from California where medical marijuana has been legal since 1996, and Massie is from Kentucky, where industrial hemp was legalized in 2013.

They are but two faces in a growing “congressional cannabis caucus,” best defined perhaps by a letter signed by 18 members in February 2014 requesting that the Obama administration reschedule marijuana from Schedule I to Schedule II (more on this later). At the time, Rohrabacher was the only Republican to sign. The list of reliable pro-marijuana Congress members has grown in the past year and a half, and now includes a rising number of Republicans like Massie and Tom McClintock (R-Calif.).

This caucus isn’t just pressuring Congress to loosen the reins on the marijuana industry, it’s also tightening them on DEA. In a year when criminal justice reform has been regularly on the front pages, the House has treated DEA’s budget as a piggy bank to be raided for projects ranging from tackling violence against women to police interactions with the public. In three floor amendments to its CJS appropriations bill, the House approved by voice vote $23 million in cuts from DEA to fund other programs that members deemed more important.

Rep. Steve Cohen (D-Tenn.) cut DEA’s budget by $4 million to process a backlog of rape test kits, which is vital for identifying serial rapists and getting them off the streets; Rep. Joaquin Castro (D-Texas) took $9 million from DEA to pay for police body cameras; and Lieu shifted $9 million from DEA’s marijuana eradication program, with $4 million to fund the VAWA Consolidated Youth Oriented Program, $3 million toward Victims of Child Abuse Act grants, and $2 million towards deficit reduction.

“The DEA has had quite a bit of bad publicity that they deserve,” Cohen tells Politico by telephone, referring to the OIG report of DEA agents using prostitutes in Colombia and a separate incident in which DEA paid Amtrak $850,000 for passenger data it could have obtained for free. “So I don’t think a lot of people had a problem with taking money away from the DEA.”

The amendment from Lieu, though, was more targeted: He made it clear his intention was just as much about ending the DEA marijuana eradication unit as funding the child-abuse treatment programs specified in his amendment. Lieu has committed to zeroing out DEA’s marijuana eradication budget by next year. 

As Lieu says, “I’m very pleased that Congress is finally catching up to where the American public already is, which is that having the federal government spend one penny on marijuana criminalization or enforcement is a ridiculous waste of taxpayer dollars.”

However, the congressional assault on DEA is about more than just the nation changing its tune on marijuana enforcement. A series of scandals and revelations over the past two years has put the agency front-and-center in the national debate about privacy and the collection of data for law enforcement purposes, especially following the exposure of the National Security Agency's collection of bulk data on American citizens and a follow-up exposé by Reuters that DEA had been running a parallel program targeting American citizens for years.

The House voted in May to end NSA’s bulk data collections program by a vote of 338-88. In June, when a floor amendment was offered to end DEA’s parallel-data-collection program, the measure was adopted with a voice vote with no recorded opposition—meaning none of the NSA’s 88 defenders insisted going on the record to defend DEA.

“An overwhelming majority of Americans targeted in this mass data collection were just law-abiding citizens, completely unaware of a surveillance program that was not authorized by Congress,” co-sponsor Rep. David Schweikert (R-Ariz) explained in a statement to Politico. “The very existence of unauthorized bulk data collection running for years without Congressional knowledge is alarming.”

This revelation—combined with DEA paying Amtrak $850,000 for nothing; DEA agents who for five days forgot about a California college student in solitary confinement, accidentally leaving him without food or water; reports of DEA agents using prostitutes paid for by drug cartels; and DEA seizing industrial hemp seeds destined for Kentucky’s legal hemp program—has led to a sea change in which the once invincible DEA has suddenly found itself on its heels.

When Leonhart stepped down this spring, she left an agency in disarray facing an existential crisis. The job of righting the ship, at least on an interim basis, has fallen upon Chuck Rosenberg, a longtime Justice Department leader who most recently worked for FBI Director James Comey as his chief of staff.

Acting Administrator Rosenberg arrived at the agency with a mission to stabilize the organization after its recent turmoil. In announcing his new role, administration officials said they expected him and the agency to focus more on heroin and other “major” drugs. In interviews since, Rosenberg has seemed to avoid mentioning marijuana as much as possible, instead touting as his first initiative a drug take-back program targeting unused prescription medicines. In the past, when DEA lost a fight on marijuana law reform, Leonhart never hesitated to voice her displeasure, but after that $23 million cut to DEA’s budget on the House floor in June, nary a peep from Rosenberg. 

Rosenberg’s office said he was not available to comment for this story, but during his conference call on the take-back program this week, when he was asked about marijuana, he demurred on its significance and said that his agents were busy prioritizing other drugs. “If you want me to say that marijuana’s not dangerous, I’m not going to say that because I think it is,” Rosenberg said on the call. “Do I think it’s as dangerous as heroin? Probably not. I’m not an expert.”

Under his watch, he said, he’d asked the agency “to focus their efforts and the resources of the DEA on the most important cases in their jurisdictions, and by and large what they are telling me is that the most important cases in their jurisdictions are opioids and heroin.”

As benign as those comments might first appear, it’s one of the first signs that DEA is responding to the rapidly shifting public attitudes about decriminalizing and even legalizing the personal use of marijuana in many localities.

Perhaps the clearest sign of marijuana’s inroads into Congress came in June with the narrow failure of an amendment to the House CJS appropriations bill sponsored by Tom McClintock, whose inner-California district includes the Sierra Nevada range, Yosemite and Lake Tahoe. The McClintock amendment would have protected all recreational marijuana programs in states like Colorado—a full step beyond Rohrabacher-Farr, which protects only medical marijuana programs. McClintock failed narrowly, 206-222.

In a telephone interview with Politico, McClintock referred to his amendment as “an affirmation of the architecture of federalism that respects the prerogative of any state citizens to make laws within their own boundaries, and for the rest of the states to profit from their experience.” For McClintock, like many Republicans joining the cannabis caucus, the issue is less about marijuana than about state rights.

For Riffle, the marijuana policy advocate, the narrow failure of the McClintock amendment actually represented “the biggest victory of the month.”

“It took us eight tries over 12 years to pass the Rohrabacher amendment,” Riffle explains. “But we started out with 206 on the McClintock amendment. So I don’t see it taking any more than a year before it passes.”

And it’s not just the lower house that’s landing punches against the War on Drugs; the Senate has begun to pull its weight too, to the surprise of many. The vote on marijuana banking was just the latest in a surprising string of victories in the upper house.

The progress started in March with the introduction of the CARERS Act, S.683, sponsored by Sens. Rand Paul (R-Ky.), Kristin Gillibrand (D-N.Y.) and Cory Booker (D-N.J.), and nine co-sponsors. If passed, the bill would reschedule marijuana from Schedule I to Schedule II, which is a big deal by itself. Schedule I drugs currently include marijuana, heroin and LSD and have “no medical value” according to the Controlled Substances Act; Schedule II includes cocaine and an acknowledgement of medical value. To many advocates of marijuana law reform, the scheduling of marijuana as Schedule I is the biggest lie in the whole War on Drugs, and it’s seen as the keystone of marijuana prohibition.

Additionally, the CARERS Act would protect state-legal marijuana programs; redefine CBD oil as a separate substance; open up banking to marijuana businesses; authorize the VA to allow doctors to recommend medical marijuana to veterans; and remove key bureaucratic hurdles to marijuana research.

The CARERS Act faces an uncertain fate at the hands of Grassley, chairman of the Senate Judiciary Committee. But despite getting hung up in Judiciary, many of the items specified in the CARERS Act have come up for votes in the Senate independently.

On May 21, the Senate Appropriations Committee passed the Veterans Equal Access Amendment, sponsored by Sens. Steve Daines (R-Mont.) and Jeff Merkley (D-Ore.), which will give VA doctors the ability to recommend medical marijuana to veterans. It passed 18-12 in the first pro-marijuana vote in the history of the Senate. Just a few weeks before, a similar amendment in the House was defeated by the narrowest of margins, 210-213.

On June 11, the Senate Appropriations Committee voted on an amendment sponsored by Barbara Mikulski (D-Md.), which would protect state-legal medical marijuana programs, essentially identical to Rohrabacher-Farr in the House. It passed 21-9 with eight Republican votes in favor.

It turns out, the vote should have even been more lopsided, with nine Republican votes in favor: Sen. Lindsey Graham (R-S.C.) evidently attempted to change his no-by-proxy vote to a yes, but didn’t get the change to the clerk in time. Graham sent this note to the committee when requesting his vote be changed, but since his vote was recorded as a no, he gave it to Politico: “I would like to be recorded as voting in favor of Senator Barbara Mikulski’s amendment on medical marijuana. A no by proxy vote was cast in error. While the language in this amendment needs to be clarified to ensure that states are limited to purely medicinal uses of marijuana, I do believe that medical marijuana holds promise and support this amendment.”

Graham is hardly the only one of his Senate colleagues in 2016 presidential race coming out in favor of marijuana reform. Paul has been a leading voice on drug reform and strongly supports the right of states to install their own medical marijuana programs. “I would allow states to have medical marijuana, and make the decisions on medical marijuana within the state lines,” the Kentucky Republican told radio host Hugh Hewitt in an interview.

For decades, DEA has blocked medical research of marijuana, but Congress and the administration now appear to be working in tandem to dismantle many of those restrictions—and members in the House and Senate appear willing to open up research into marijuana’s medical effects. This spring, the director of the National Institute on Drug Abuse, Nora Volkow, endured a withering barrage of questions from senators skeptical of NIDA’s monopoly on research-grade marijuana.

Under questioning from Booker, Volkow acknowledged that the NIDA monopoly existed only for marijuana and that there was  “no scientific reason” for it.

That hearing was hardly an anomaly. If anything, marijuana reform appears to be accelerating on Capitol Hill. Earlier this month, a bipartisan coalition of senators introduced S.1726, a bill that would give recreational marijuana retailers access to the banking system, which federal law currently does not allow—a situation that has caused all sorts of problems for marijuana dispensaries forced to squirrel away mountains of cash despite complying with state law.

“Forcing businessmen and businesswomen who are operating legally under Oregon state law to shuttle around gym bags full of cash is an invitation to crime and malfeasance. That must end,” said co-sponsor Jeff Merkley (D-Ore.) on the Senate floor. The 16-14 vote in the Senate Appropriations Committee for a similar measure on Thursday has signaled bipartisan support for the stand-alone bill, leaving its fate in the hands of Sen. Richard Shelby (R-Ala), chairman of the Banking Committee.

How congressional leadership, committee chairs, the administration and DEA navigate their way through this new terrain remains unclear—but, given the low regard in which DEA is held these days, reformers are almost hoping the agency will oppose them. “The more the DEA obstructs, the more it actually helps us in some respect,” says Bill Piper of the Drug Policy Alliance. “In a way, the DEA is our best ally. They act so bad, they turn people our way.”