Sword of Damocles

When Barack Obama became president in January 2009, he and his attorney general set a policy that if a state had voted for medical marijuana, the Obama administration would leave them alone.

Two years later, U.S. attorneys started raiding medical marijuana businesses in California, and Obama did nothing to curb them.

Federal prohibition of marijuana still hangs over the majority of states that allow medical marijuana under their state laws and the nine that allow full-fledged legal use. The experience of the Obama years shows there is no guarantee that federal pledges mean anything. Only a change in the law does.

Donald Trump, too, campaigned as a supporter of marijuana who would leave states alone but, after taking office, changed his mind. And in January of this year, his attorney general revoked the Obama policy. For a die-hard prohibitionist like Atty. Gen. Jeff Sessions, it was a major blunder that led to promising new efforts to give cannabis full-fledged legality under federal law.

Sessions’ action caused widespread anger among Republicans and Democrats and emboldened a variety of interest groups.

Veterans groups concerned about medical access to the plant got involved.

Rep. Barbara Lee of California said she would not let African American families who had been badly damaged by the war on drugs to be dragged back down that road.

Stockholders in marijuana corporations saw the value of their shares fall. (Politico reported that even shares of the company that makes Miracle-Gro fell.)

Drug experts noted that access to marijuana has provided new evidence against the gateway theory—states with legal medical marijuana have fewer opioid abuse deaths.

But Republicans were the most upset. Facing an election that looked like a referendum on Donald Trump, they didn’t need any more baggage, and the issue turned bi-partisan fast after Sessions’ order. The number of candidates on both sides of the aisle who decided it was time to end two tracks of marijuana law increased. The Corys in the Senate—Republican Gardner of Colorado, Democrat Booker of New Jersey—both attacked the Sessions policy. Booker sponsored a bill with Rand Paul, and Gardner put a hold on all of Sessions’ Justice Department appointees. Republican legislators Dana Rohrbacher, Tom Garrett and even Mitch McConnell sponsored cannabis bills, all with Democratic cosponsors.

If not now, when?

But sponsoring bills is one thing. Allowing votes on them is a bridge too far for Republican leaders, which has dismayed rank-and-file Republicans who wanted action before the election to mitigate the damage Sessions did with the electorate. It also raised suspicions among cannabis supporters that GOP outrage at Sessions’ new policy was a charade.

It is clear that the votes are in hand, at least in the House, to make marijuana fully legal in federal law, since nearly all Democrats would likely support it and so would a considerable number of Republicans—if they get a chance to cast their votes.

Some in the marijuana industry seem to consider the Nevada Senate race as key to its interests. The website Marijuana Moment ("All your cannabis news, in one place") carried a story in August headlined “Marijuana Emerges As Key Issue In Nevada U.S. Senate Race.”

Republican candidate Dean Heller’s views on marijuana—originally fairly hard line—have evolved over the years, more or less in line with the rulings that have come down from Nevadans on ballot measures, first on medical marijuana, then on legal marijuana.

But while Heller has been relatively supportive of state authority on marijuana, he has not been a leader on the issue. Vote Smart found no public statements on marijuana by Dean Heller, though he has been in elective positions for 28 years, 20 of them in legislative office. The group found 10 statements or letters by Democrat Jacky Rosen, though she has been in elective office for just 22 months. The 10 were all uniformly supportive of public access to the plant.

Heller has received at least $6,500 from various pro-marijuana sources. Rosen has received at least $10,150.

On March 11, 2015, Heller issued a prepared statement announcing that he was co-sponsoring S.683: “This bipartisan legislation puts Americans who are suffering first by allowing Nevada’s medical marijuana patients, providers, and businesses that are in compliance with state law, to no longer be in violation of federal law and vulnerable to federal prosecution.”

That represented a sharp change from his position in July 2007, when he voted against H.R. 3093, which would have protected states like Nevada against federal action on cannabis.

Rosen, on Sept. 17, sent out a fundraising mailing that uses the issue of continued federal prohibition against Heller: “They just won’t stop: Recent reports show the Trump administration continuing to attack states like Nevada that have decided to legalize and regulate marijuana—going against the will of our voters and threatening small businesses in the process. And where is GOP Senator Dean Heller during all of this? Nowhere to be found. Senator Heller has made it clear he won’t stand up and fight for Nevadans on this issue, just like he’s refused to protect access to affordable health care and defend our environment.”

Nevada officials like Richard Segerblom—who, with Chris Giunchigliani, is considered one of the two most ardent legalizers—have drawn attention to Heller’s less than full-throated message on marijuana: “Suffering cancer patients and struggling veterans also have access to medical marijuana in Nevada. … But where is our senior senator in fighting back against what the Trump administration is trying to do?”

Northern Nevada U.S. House candidate Mark Amodei, a Republican, has not been much more fervent than Heller since Sessions’ action. “I don’t think there is a reason for panic,” he said in a conference call with reporters. Democrat Clint Koble, a former U.S. Farm Service Agency state director, flatly supports legal marijuana under federal law.

In the governor’s race, Republican candidate Adam Laxalt has not backed away from his 2016 prohibitionist position except to say he has done his job as attorney general of defending the state’s position in court. Democrat Steve Sisolak is only favorable to the concept in contrast with Laxalt. As a Clark County commissioner, he urged the county to move slowly in implementing the voter decision on marijuana. He could use an endorsement on the issue from Giunchigliani, but his scorched earth campaign against her in the primary when she was a candidate for governor made that unlikely.