On Election Day, California voted to become the world’s largest legal marijuana market, and seven more states also voted yes on recreational or medical pot. Initially, President-elect Donald Trump’s surprise win didn’t seem to pose an immediate threat to the legal pot industry; Trump isn’t popular in the cannabis world, but he’s not seen as a committed prohibitionist either. At a post-election industry conference in Vegas, the largest controversy involved a nearly naked model covered in cold cuts.
That outlook changed after Trump picked Sen. Jeff Sessions, an Alabama Republican, as his nominee for attorney general. While many conservatives have relaxed their views on both marijuana and criminal penalties for drug offenses, Sessions evidently has not. “We need grown-ups in charge in Washington saying marijuana is not the kind of thing that ought to be legalized,” he said at a hearing in April. “It is in fact a very real danger.”
To liberals, the Sessions nomination is, as the New York Times editorialized, “an insult to justice.” Sessions had been rejected for a federal judgeship in 1986 due to concerns that he’s a racist. His nomination in 2016 to the far more powerful position of attorney general raised an immediate outcry from, among others, those concerned with treatment of undocumented immigrants, the rights of LGBTQ and Muslim Americans, and supporters of criminal justice reform and police accountability.
The legal marijuana industry, which is anticipated to top $6 billion in sales this year, also has reason to fear Sessions, but its response has been much more muted. The National Cannabis Industry Association, the industry’s largest lobby, released a statement saying that it looked forward to working with Attorney General Sessions. They think it’s safer to weather his tenure at the Justice Department than to fight it.
After the nomination, the pro-pot activist Tom Angell told BuzzFeed, “From a political lens, I think reversing course on [marijuana] and trying to shut down broadly popular state laws, that’s going to be a huge distraction from all the other things they care a lot more about,” Angell said. “It’s a fight that they don’t want to pick.” Put another way: Marijuana proponents believe that President Trump and Attorney General Sessions will be too busy tracking Muslims and deporting noncitizens to go after state-legal pot, which also happens to be more popular than not among Republicans. The industry expects the more vulnerable populations to function as its human shields.
The position seems even more cowardly and hypocritical when you consider that as long as marijuana is federally illegal, the industry profits from laws that are selectively enforced. By not standing up to Sessions—who has recently criticized President Obama for commuting the sentences of too many drug offenders—the industry is effectively endorsing the position that marijuana should still destroy Americans’ lives, whether by incarceration or through the hardships of having a criminal record.
Cannabis executives would rather see almost anyone other than Jeff Sessions as attorney general. In off-the-record conversations I’ve had with executives, they say they are torn about whether to fight the nomination—the pro-legalization group Drug Policy Alliance has vocally opposed him—but as a whole, the community has adopted the National Cannabis Industry Association’s view. Aside from its moral cowardice, this head-in-the-sand strategy could prove catastrophically stupid.
The industry is content to sit the Sessions fight out because it arguably is in a strong position. A majority of states have legalized medical marijuana in some form, and now almost 70 million Americans live in fully legal states. To attack legal marijuana, the Sessions Justice Department would have to defy state governments that have worked to regulate weed and now benefit from the taxes it generates.
Plus, pot is popular. A majority of Americans now support full legalization, up from about 25 percent 20 years ago. In Florida last month, medical marijuana won more than 70 percent of the vote; Trump garnered less than 49 percent.
Even so, the industry is uniquely vulnerable. California voters legalized medical use in 1996, but the modern industry’s legal foundation is a short 2013 document by then–Deputy U.S. Attorney General James M. Cole. The industry interpreted the “Cole Memo” as saying the federal government won’t interfere with state-legal businesses as long as they respected several important guidelines, such as keeping legal pot away from kids and organized crime.
That is essentially what has happened. Running a legal marijuana company is a complex endeavor, and plenty of them fail, but since 2013, state-legal owners have been relatively confident that the Drug Enforcement Administration won’t bang down the door and present them with federal drug trafficking charges. If it begins to look like that will change, the industry could collapse from a mass exodus of managers and workers.
There is nothing to stop the Sessions Justice Department from interpreting the Cole Memo differently or just scrapping it. So, by accepting Sessions as attorney general, the marijuana industry, no matter how popular it is, or how big it grows, is at the mercy of Sessions—a man who recently said that “good people don’t smoke marijuana”—and Donald Trump.
The industry deserves much of the credit for how smooth the transition to legal weed has been, but it’s still one stoned school bus driver away from a PR disaster. While Trump has been fairly consistent in his support for medical use, the industry could also be an easy scapegoat to blame for, say, low test scores. Or maybe President Trump will decide to award cannabis concessions to his loyalists on very favorable terms. Those aren’t scenarios where you want to be scrambling for friends in Congress.
There is instead a powerful argument for action when the industry has political capital and so much about the coming administration is unknowable. On Capitol Hill, Sessions’ approval is considered a foregone conclusion, but the conventional wisdom hasn’t had a good year. For the nomination to fail, it’s likely that a handful of Republicans would have to dissent. There are now 58 senators representing states that have legalized in some form, including quite a few with at least one Republican senator. In places like Colorado, the industry is an important part of the economy and a substantial source of jobs. In other states that have legalized, but don’t yet have developed markets, it could deliver jobs and tax revenue. There are a lot of themes for marijuana proponents to leverage.
Even if the industry can’t topple Sessions, it would benefit from senators asking tough questions during the confirmation hearing. If Sessions were to say that the Justice Department will respect state marijuana laws, the industry would then be positioned to push for its other legislative priorities. If the industry doesn’t use this opportunity to extract concessions or clarity, why would Sessions make them after he has won?
This week, the DEA, which is part of the Justice Department, clarified that marijuana extracts containing cannabidiol, a nonpsychoactive chemical found in marijuana that’s associated with many of its medical benefits, are illegal. The move suggests that the DEA doesn’t consider legalization a settled matter. The Cannabis Business Association called the development “irrational and irresponsible.”
But senators could be more receptive. At the moment, Democrats tend to be more favorable to legalization than Republicans, but that could change. Industries with important similarities to marijuana, such as alcohol, tobacco, and agriculture, all lean Republican in their campaign contributions. Big Pot is hungry for legitimacy and doesn’t much care which party bestows it.
Finally, opposing Jeff Sessions would be good for the industry’s image, at least in the blue and purple states it currently cares about. Cannabis executives love pontificating on the evils of the war on drugs; but while they might be on the right side of history, everywhere the industry arrives it faces criticism for greed and opportunism, compounded by distrust of its product and the people who sell it.
Big Weed wants to be everywhere booze is: Super Bowl commercials, ladies nights out, family BBQs. The fastest way to make that happen is with public support. By taking on Sessions when it has the opportunity, it could rebrand itself as an industry that stands for more than its own profits, even if it doesn’t.