Industry insiders are watching anxiously to see who comes out in control of the White House and the Senate. After several failed efforts to get marijuana legislation passed, a shift from Republican to Democratic control of Congress and the presidency could mean votes on bills expanding protections for the cannabis industry and its vendors — or even federal legalization, the Holy Grail of reform.
Yet if Republicans stay in power, the budding industry will be largely forgotten when it comes to lawmaking, the experts said.
"The Senate and the White House are going to determine the fate of cannabis reform in Washington in the next two years," said Mark Alderman, chairman of Cozen O'Connor Public Strategies.
Here's why experts say these fights will likely mean the difference between legalizing marijuana in the near future or putting it off indefinitely.
Biden v. Trump
While the two candidates at the top of the ticket on Election Day are opposites in many ways, neither is clearly in favor of legalization.
Under Republican President Donald Trump, the U.S. Department of Justice rescinded the Obama administration's Cole Memorandum, which restricted prosecutors from pursuing state-legal marijuana businesses. Trump has not been supportive of legalization, but has said as recently as last fall that his administration is leaving it up to the states.
In 2015, before taking office, Trump said he supported medical marijuana but not broader legalization. He hasn't backed any specific policy while in office, however.
Democratic challenger Joe Biden talks about marijuana policy far more often, but his platform stops short of legalization. He says he will decriminalize cannabis and expunge convictions as part of an effort to address racial inequality. Biden's vice presidential pick, Sen. Kamala Harris, D-Calif., has been supportive of legalization in the past but has spoken more about decriminalization in recent weeks to better align with Biden.
Yet there's a big difference between Biden and Trump when it comes to the real prospects of full legalization, experts told Law360.
Trump models himself as the pro-business choice, but that hasn't translated into action on the marijuana front, so it's hard to say another four years could lead to legalization, said Andrew Kline, director of public policy at the National Cannabis Industry Association.
"Trump has had three and a half years to do something, anything, for this industry — to even acknowledge that this is an economic driver," Kline told Law360. "And yet he hasn't even said, 'I acknowledge this industry exists.' To expect or hope that he's going to do something positive for the industry is a pipe dream."
And there's no real political impetus for Trump to do anything positive for the industry if he wins again, Kline said.
"If he wins the election, he has no other election in front of him," Kline said. "Legalizing marijuana is not going to help him."
As for Biden, Alderman said that the former vice president's cultural background and generation make it hard for him to go all in on marijuana.
"It is very personal to him. It is very hard for a guy who grew up where and when he did to get there on cannabis," Alderman said.
In the short term, it's far more likely Biden will want to sign legislation like the SAFE Banking Act, which provides protections for banks handling marijuana money for cannabis businesses, or expand scientific research into the drug before he changes his tune on full legalization, Alderman said.
That being said, Alderman said he has been in regular contact with Biden's staffers and is confident they support legalization even if he doesn't.
"We've been talking to the campaign relentlessly," Alderman said. "The truth of the matter is that most of the people around Biden are more progressive on the issue than he is."
Among them is running mate Harris, one of many Democrats who believe legalization is key to addressing the country's racial divides.
Biden would need to see the results of the research and be convinced legalization would not be dangerous for public health before he could ultimately throw his support behind it, Alderman said. But with high-ranking members of his administration and Congress backing legalization, depending on who controls Congress, Biden could get such a bill before he is ready.
Senate Majority
Control of the Senate is the other major prize up for grabs, and it could be the bigger one for the cannabis industry because it could change the thinking in the White House, the experts said.
Republicans are in charge of the Senate right now, with 53 seats to the Democrats' 45 plus the two Independents who caucus with them. But that could change on Tuesday, as a number of Republican senators are facing close races — in particular, Sens. Cory Gardner of Colorado, Susan Collins of Maine and Martha McSally of Arizona.
The U.S. House of Representatives is almost certain to remain in Democratic control, maintaining its support for marijuana reform.
While the Democratic-led House has passed the SAFE Banking Act and was poised to vote on the MORE Act, which would remove marijuana from federal drug control laws, there is little reason to believe either would make it past a Republican majority in the Senate, insiders say.
"[Senate Majority Leader Mitch] McConnell has been and continues to be our biggest obstacle," said Nick Etten, head of government affairs at Acreage Holdings. "However his influence plays out, that's not going to change."
If Democrats take control of the Senate, McConnell would likely lose his ability to block the legislation. And if Democrats are able to take control the Senate, it's almost certain they will also gain the White House.
The MORE Act was held back in the House earlier this year over concerns about voting for a cannabis bill when Congress was negotiating pandemic relief legislation. But if motivated leadership puts the bill before a Democratic-controlled Senate, "there's a likelihood that it passes," Alderman said.
The support for legalization from people close to him could push Biden to make it happen, he added. Harris introduced the MORE Act in the Senate, and with Biden's ear as vice president, she could advocate for his signature if the legislation passes.
"I think you probably get more from Congress than Biden has asked for," Alderman said. "He's not going to veto something a Democratic Congress sends him."
Even if the Senate remains in Republican control, there are still opportunities for the cannabis industry to pick up new supporters or build on ones it already has.
Hemp has been a bipartisan issue for the last several years. McConnell got the language legalizing hemp in the 2018 Farm Bill, and since then he has been seen as the industry's "biggest supporter," according to Jonathan Miller, general counsel for the U.S. Hemp Roundtable, while adding that Senate Minority Leader Chuck Schumer, D-N.Y., is also a major supporter.
Legal marijuana doesn't have the same kind of bipartisan support. Gardner is one of the few Republicans who has been an outspoken supporter, but he could have more company if states voting on legalization ballot measures also elect Republican senators, which could happen in Arizona, Montana and South Dakota, according to Etten of Acreage Holdings.
"If a state has a medical program, they'll take a meeting, [but] they're not that vested until there is an industry presence," Etten says of lawmakers.
The industry does need Republican help to get some of the biggest legislative changes across the finish line, he added.
"We still need Republicans to come around on reform to get our major achievements," Etten said. "We can't do it with the Democrats alone."
--Editing by Philip Shea and Jill Coffey.
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