Pot’s Path Forward

A new Senate bill maps out how weed will eventually become legal in the U.S.

Gillibrand, Booker, Paul
Sen. Kirsten Gillibrand speaks about medical marijuana during a news conference with Sens. Cory Booker (left) and Rand Paul on Capitol Hill on March 10, 2015, in Washington.

Photo by Mark Wilson/Getty Images

A trio of high-profile senators this week unveiled a package of drug reforms that would effectively end the federal war on medical marijuana once and for all. The bill, from Republican Rand Paul and Democrats Cory Booker and Kirsten Gillibrand, wouldn’t legalize medical weed across the country, but it would remove the threat of federal prosecution for patients who use it in states where it is legal. It would also represent a federal acknowledgment of weed’s medicinal potential—something the U.S. government has repeatedly refused to concede since Richard Nixon launched the war on drugs in the 1970s.

The legislation is bipartisan, sound, and long overdue. Frustratingly albeit unsurprisingly, then, it is unlikely to make it very far in the current Congress, a reality even the nation’s chief weed advocates have readily admitted. Its short-term fate notwithstanding, though, the bill is a clear sign of just how quickly the drug debate is evolving in Washington—and may just foretell how nationwide legalization will eventually come to pass.

That Paul, Booker, and Gillibrand have teamed up on the bill is telling, and the good news for the pro-pot crowd comes in both the chicken-and-egg variety. On the one hand, as rising stars on the national stage, all three will have ample opportunity to further their cause—particularly Paul, who is expected to officially jump into the race for the GOP presidential nomination later this year. On the other, it’s unlikely that the trio would have made this a priority if they were the least bit nervous that their efforts would come back to bite them. And they have good reason to be confident in that regard: A majority of Americans back full-scale marijuana legalization, and even those who don’t tend to believe that it’s simply a matter of when, not if, the nation’s eight-decade-long prohibition of pot comes to an end.

Still, believing legalization is inevitable doesn’t make it so. The question, then, is how we get from the present—with Congress bullying Washington, D.C., officials in a bid to stop them from following the will of voters and making weed legal—to full, nationwide legalization?

The Senate legislation offers just such a road map. The bill’s most important provision would change how pot is classified under the Controlled Substances Act, the 1970 law that is the backbone of federal drug policy. Currently, the government labels marijuana a Schedule I drug, a classification that puts it in the same category as heroin, LSD, ecstasy, and a handful of other heavyweights. Those drugs, according to the federal definition, have “no currently accepted medical use and a high potential for abuse.” The Senate bill would drop weed to Schedule II, a classification for drugs that still have a significant potential for abuse, although less than their more restricted brethren. More importantly, the Schedule II classification is reserved for drugs with some medical benefits—things like methadone and Adderall—meaning placing pot in that category would be a de facto admission that weed does indeed have a role to play for some patients.

It’s hard to overstate just how much that would change the way the federal government deals with pot. It would open the door wider for universities to research medical uses for marijuana without fear that Drug Enforcement Administration agents are seconds away from kicking down their doors, while also giving the green light to doctors at Veterans Affairs hospitals to prescribe medical marijuana to veterans. In many ways, the reclassification would represent the biggest change in the government’s attitude toward pot since Nixon decided that weed was what was fueling his counterculture critics. (Or, as he famously put it, “They’re all on drugs.”)

To date, 23 states, along with the District of Columbia, have legalized medical marijuana, siding with the medical consensus that cancer patients and others can benefit from marijuana use and against the federal ban that has always been more about politics than science. (Another 12 states, meanwhile, have legalized the limited use of low-THC, high-CBD pot for those with prescriptions.) A change in classification would be the first major domino to fall in the fight to end federal prohibition. Not only would it allow medical marijuana to more easily flourish in those states where it is already legal, it would also make other states where medical weed is not yet legal more likely to follow suit.

The path from legal medical weed to the recreational stuff isn’t as straight of a line, although the two are clearly connected. Already Colorado, Washington state, Oregon, and Alaska have proved that voters are game to open the door for widespread recreational use. Similar full-scale legalization efforts are at varying stages in more than a half-dozen other states—Nevada, Arizona, and California among them—where advocates are looking toward 2016, when they hope the presidential election will turn out enough liberals to push those efforts across the finish line. As I explained last summer, more than 1 in 5 Americans live in states where smoking pot has a legitimate chance to become legal between now and when Obama leaves office.

The biggest potential roadblock to such state-level efforts would be if Washington decides to step in and flex its federal muscles. But its D.C. bullying aside, Congress has actually quietly become increasingly pot-friendly, particularly when it comes to medical weed. While no one expects Congress to vote to legalize pot outright anytime soon—or even to back the type of major reforms that would make it easier for states to legalize medical or recreational weed on their own—a growing number of lawmakers have made it clear they have no desire to stand in the way of those state efforts.

Tucked in the same bill that targeted the D.C. legalization effort was a provision that was actually much more important in the larger fight for legalization. Lawmakers voted to block the Justice Department from spending a dime to prosecute patients or medical marijuana dispensaries that are acting in accordance with state law but running afoul of federal ones—a roundabout way of achieving one of the main goals of the Paul-Booker-Gillibrand bill. Still, that policy change isn’t permanent—it will last through this coming September—making it only a symbolic victory unless Congress acts again.

The Obama administration, meanwhile, has sent mixed messages when it comes to weed. The president has given a qualified green light to states to experiment with both retail and medical weed. But at the same time that hasn’t stopped the DEA and several U.S. attorneys in recent years from raiding hundreds of medical dispensaries that were in compliance with state laws—nor would it prevent the next president from taking a more aggressive posture.

Still, the slow march toward legalization appears to be underway, and the Paul-Booker-Gillibrand bill provides a clear path—not just in policy but also in politics. Booker and Gillibrand represent the traditional liberal support for ending the war on drugs, while Paul provides the states-rights and libertarian logic that appeals to many conservatives. Already, Sen. Ted Cruz and former Florida Gov. Jeb Bush—both of whom Paul can expect to cross paths with during the GOP primary—have suggested they support states’ rights to legalize pot, even if they don’t personally want to see that happen. That rationale has been echoed by a number of congressional Republicans as well and was a key driver in the cromnibus’ medical pot provision.

The Senate bill is unlikely to get the consideration it deserves in this Congress. But fortunately for the legalization effort, it doesn’t have to complete the journey to be a success—it only needs to point the way.