This year, President Donald Trump broke ranks with Attorney General Jeff Sessions and signaled he supports new legislation called the STATES Act, which would end the outright federal ban on marijuana by allowing each state to decide their own pot policy.
This was good news for Sen. Elizabeth Warren (D-MA), one of the bill’s original sponsors. Warren teamed up on the effort with Sen. Cory Gardner (R-CO) who was pivotal in getting the president to endorse the broad contours of their bill. Despite the support of a bipartisan group of 10 senators, along with 28 members of the House of Representatives, the legislation hasn’t gone anywhere since it was unveiled earlier this summer. That’s in part because Senate Majority Leader Mitch McConnell remains fiercely opposed to relaxing the current federal ban on marijuana, which classifies pot the same as any Schedule I narcotic, like LSD or heroin.
“The way over that hurdle is to get enough Republicans to push Mitch McConnell,” Warren says. But barring McConnell’s support, Warren has a Plan B. She argues that the 2018 midterms could prove decisive in deciding the future of federal marijuana policy. While pot remains illegal federally, nine states and the District of Columbia have legalized marijuana for recreational use — including her home state of Massachusetts — and the majority of states have legalized cannabis for medicinal use. Warren predicts that if Democrats recapture Congress this fall they would do away with the current discrepancy between federal and state marijuana laws.
“I feel confident that if the Democrats recapture the Senate we’ll get a vote on this, and the vote will carry,” Warren continues. “I think we’ve got the votes for this.”
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Last week, Warren sat down with Rolling Stone in her Washington, D.C. office to discuss the legislation, the rapidly evolving politics around marijuana and her plan to get the STATES Act signed into law.
When people think of Elizabeth Warren they think Wall Street, and the Consumer Financial Protection Bureau. What brought this marijuana bill about?
It actually fits. I care about this marijuana bill because I care about people in my home state who are at risk for getting arrested by Jeff Sessions for either buying marijuana or running a marijuana business. And I also care about when a state decides that marijuana should be legalized either for medicinal purposes or recreational purposes, or both, that the state ought to be the one who controls here. And that’s what this STATES Act is all about.
And now how did you connect with Gardner on this? Did he come to you?
It’s a funny story. You may remember the Cole Memorandum, which back during the Obama administration had said that they weren’t going to try to legalize marijuana, but if the states acted and legalized it within that state, nobody in the attorney general’s office was going to prosecute. Now, that didn’t solve all the problems. Marijuana businesses still couldn’t get access to the banking system because, technically, under federal law, their money came from illegal sources. Marijuana businesses still had a problem with tax laws, because their money came from illegal sources under federal law. So when Jeff Sessions became attorney general and announced that he was revoking the Cole Memorandum and would push for prosecutions on marijuana, Cory Gardner called a meeting of all the senators whose states would be affected.
So we’re all sitting around a table. A few people show up — maybe 10 show up. And people are talking about it, and they’re talking about how hard it would be to legalize it at the federal level and what could we do. And I said, ‘Why not just use a state’s rights approach?’ That is, if the state acts, then the federal government backs off. If the state doesn’t want to act they can leave federal law in place but leave this up to the states. And Cory’s eyes lit up, and he said ‘That’s an interesting approach. We might be able to do something with that.’
So Cory and I left the meeting, kept working on it, hammered out a bill. And Cory went out and talked to a lot of Republicans about it, and I’ve talked to some as well. We’ve got plenty of colleagues on the Democratic side who will support this, and Donald Trump said it sounded like a good idea to him. He’s said it, I think, three different times now. So I’m pretty hopeful that if we could get a vote in Congress that we could actually get this passed.
Well that’s the big hurdle. Trump has now endorsed it, basically, but Mitch McConnell says he opposes any movement on marijuana. How do you get over that hurdle? And has there been any movement on this?
So the way over that hurdle is to get enough Republicans to push Mitch McConnell. And we’ve been bringing people on to our bill two by two; a little like Noah’s Ark: A Democrat and a Republican join hands and become cosponsors on our bill. We now have multiple cosponsors [in the Senate]. We have lots on the House side. In other words, we have a lot of people on McConnell’s team who are pushing McConnell to do this.
Do you have any commitment from Chuck Schumer that if you guys recapture the Senate this November that he would take it up?
So Chuck has supported this. I have to say I don’t think we’ve specifically [asked him]. But Chuck has supported this. I feel confident that if the Democrats recapture the Senate we’ll get a vote on this, and the vote will carry. I think we’ve got the votes for this.
Back in 2016 you never endorsed the ballot initiative in Massachusetts?
Yes I did.
You endorsed it?
Oh, I did.
[EDITOR’S NOTE: In 2016, Warren only told reporters that she was “open to the possibility of legalizing marijuana.”]
And so you personally voted for it?
And voted for it.
And why was that important?
Massachusetts, in my view, was in the worst possible situation. Massachusetts had decriminalized but not legalized, so there was an active market in buying and selling marijuana but no real oversight to make sure that the products sold were clean and free of other drugs and didn’t pose other dangers to users, so I supported it.
That’s kind of the more technical reason: I supported it because I just thought it made sense. And actually I’ve pushed on this issue for a long time. If you want to ask me a question about that I’d be glad to tell you, but I’ve pushed on this for a long time. I pushed Secretary Azar last year at [the Department of Health and Human Services] at one of the hearings around opioid addiction, whether or not there’s research to show that marijuana may be a pain treatment alternative that doesn’t pose the same risks that opioids do and whether or not marijuana is useful in helping people who are addicted to opioids move away from addiction.
Now under your bill, tens of thousands or even hundreds of thousands of people, in say Alabama or Wisconsin, would still face big jail sentences, large fines because it would still be illegal and a felony in their states.
It depends on how the state law is structured. Remember 46 states have now legalized marijuana at some level, so in all but 4 of our states this would reduce the number of people who would be subjected to penalties for using marijuana.
But some people would still be in states where they could [be jailed] because that brings up the bigger question of legalization eventually or national decriminalization.
I supported national legalization and will continue to support national legalization. I think that moving a bipartisan bill that will fix a big part of the problem would be helpful, but it doesn’t solve all of it. And I’m the first to recognize that. I’m a cosponsor with Sen. Booker on his bill (the Marijuana Justice Act). I actively fight for it, but I also want to fight for this alternative that could make a big difference right now.
When you say ‘legalization’ does that mean decriminalization?
De-scheduling — taking it off the Schedule I list.
It seems like your party has really moved on this.
Do you think any Democrat can win the primary in 2020 who opposes national decriminalization?
You need a pundit on this one, but this is where America is. And the idea that the federal government clings to a law that makes no sense in the lives of most Americans is so outdated that it would be laughable if it didn’t cause real pain to a lot of people. That’s a long and complex sentence but that’s kind of where I see this.
How much do you think Jeff Sessions has played a role in moving your party and even moving Republicans?
That’s the point — he’s moved both parties. Jeff Sessions has acted as a catalyst in getting people up off their rear ends and moving on this issue.
And it probably wouldn’t have happened without him or at least not so rapidly.
Let me describe it this way: We are in a moment when Jeff Sessions highlighted aggressive law enforcement on marijuana and a lot of folks here in Congress looked at each other and said, ‘That’s a bad idea.’ What Cory [Gardener] and I have done is give them a place to channel that where we can make real change. Now we just need to get a vote from Mitch [McConnell].
How does marijuana decriminalization — de-scheduling — fit into your broader views on criminal justice reform?
This is just one slice of the need for criminal justice reform and a reminder that criminal justice reform starts at the front end with Congress and the states and what they declare illegal, and when they declare something illegal what sentences they prescribe. I would love to see us do an entire comprehensive criminal justice reform from the front, with the laws that Congress puts in place, to the back, where we rethink what happens to people when they leave prison and try to reintegrate into their local communities. This is just a piece of that. So right now I’ll take a piece when I can get a piece.
Now have you ever personally smoked marijuana?
It’s legal in D.C. you can come over to my place any time.
I know. There you go. There you go.
But there’s something else I wanted to tell you. [It’s] about a man who came to see me a couple of years ago. He was a veteran. He had served multiple tours in Iraq and Afghanistan. And he talked about how terrible his PTSD was when he got home and how the Veterans Administration had loaded him up on tons of drugs. He said he had reached a state where he could not be left in charge of his own children because he was so drugged up and struggling so hard. A friend of his suggested he smoke marijuana, and he said over time it both brought down his anxiety levels and helped him — one at a time — get rid of the drugs he was taking. And he said now he smokes a little every day, and he’s able to hold down a job. He’s able to be part of his family and part of his community. And he came to see me to tell me that story.
I understand that one story is not the same as hearing from everyone around the country, but it was a powerful story about how a bad law touched someone directly. He couldn’t get what was the best help for him — marijuana — because federal law made it illegal. And he was here to advocate to me about the VA. He wanted the VA to be able to prescribe marijuana because it had been so enormously helpful to him that he spent his own money to come down to Washington to talk to his senator, to ask his senator to advocate for widespread use of marijuana in the VA system. And it was just a very powerful story about how bad laws affect real people. So if that’s helpful, you’re welcome.
This interview has been edited for length and clarity.