District residents overwhelmingly voted in favor of legalizing marijuana in November, but a deal reached in Congress on Tuesday night would overrule them.
GOP members of the House slipped in a 12-line paragraph on the 953rd page of the omnibus appropriations bill that essentially would end the District’s chances of implementing Initiative 71, the city's legalization measure.
Legalization advocates and industry experts told DecodeDC earlier this year that a congressional move to block the D.C. measure’s implementation seemed like a long shot. But as the final hours of the lame duck session came to a head Tuesday night, Republican House members staunchly opposed to marijuana legalization were able to add language to the appropriations bill to do just that.
The bill is expected to pass the House easily and doesn’t appear to have formidable opposition in the Senate at this point.
Senate Majority Leader Harry Reid didn’t offer a strategy Tuesday night for opposing the marijuana provision. “It’s going to be hard to take it out over here, but I oppose it," Reid told the National Journal.
Although the budget bill language doesn’t outright reject D.C.’s legalization plan, it does limit the city government from using any of its tax money to implement the law. Because the language is so all-encompassing, it could also limit the city’s new decriminalization measure that passed in the spring. Part of that measure lowered possession of small quantities of marijuana to a $25 fine and citation.
“It’s bad enough that they were setting their sights on legalization, but for them to go further and undo decriminalization — it’s irrational when over a third of states have done so,” Phil Mendelson, chairman of the D.C. City Council, told the Washington Post.
Congress has final authority over the District’s spending and that often makes D.C. a Capitol Hill bargaining chip.
“There are Democrats who support our position philosophically in their home state but if they need something on the Hill, the District can be used [to bargain],” said Janene Jackson, former director of the Office of Policy & Legislative Affairs for former Mayor Vincent Gray, and a lawyer at Holland & Knight.
D.C. City Council members aren’t taking Congress’ proposal lightly, and at least one is vowing to challenge the higher ups.
“They have the power to do it, but we in the local government have the power to think of ways to get around what they are saying,” D.C. City Council Member David Grosso, who authored a city bill to allow legal pot sales last year, said. Grosso said he “would welcome a lawsuit.”
But there might be routes other than a suit that council members could take to implement marijuana legalization.
First, it’s possible that outside groups, like pro-legalization campaigners and marijuana growers, could raise the funds necessary to implement the law.
“They could raise private funds to implement the law,” said Jackson at Holland & Knight. She said doing so might only be a drop in the bucket for the marijuana companies that aim to benefit significantly from a legalized market.
Then, she said, it’s also possible that the D.C. government could generate funding through a fee structure, instead of a tax.
“Taxes and fees are different. I’m not sure what type of fee mechanism they could create. They could charge a hefty fee for a certificate of occupancy. You could charge a hefty fee for operation and a business license to operate—that may tip into the tax—but there are ways that the local government can circumvent that,” she said.
Then of course there’s good old lobbying. Essentially, it’s one of the few moves members of the D.C. government can really do to change the mind of Congress and get legislation passed in D.C.
“What local government can do, is lobby. They would have to get Democrats and, given where they are going in the next Congress, they will need Republicans to support this as well.”
But for District residents hopping to light up—legally—in the city, they might be left not-high and dry.
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