How to Legalize Marijuana by Exploiting the Rules of the House

On May 19, 2016, the U.S. House of Representatives passed the pro-cannabis Veterans Equal Access Amendment 233-to-189, with broad, bipartisan support.

As part of a military appropriations bill, the medical marijuana amendment  was written to allow Veterans Affairs (VA) doctors to recommend medical marijuana to wounded veterans in states where medical marijuana is legal. Fifty-seven Republicans voted in favor of the amendment. A similar bill was later passed in a U.S. Senate committee (20-to-9), and the amendment was on its way to be signed into law by President Obama.

Legalize MarijuanaPicked up in the media, news of the amendment’s passing was celebrated by veterans and medical marijuana advocates alike. Congressman Earl Blumenauer, the author of the amendment, was elated. “I’m convinced within five years,” he said, “everybody in America will have access to some form of medical marijuana.”

Michael Collins of the Drug Policy Alliance said, “We are delighted to lift this outdated, discriminatory policy, which has negatively impacted the lives of so many veterans…Finally, Congress has seen sense and will allow veterans to be on an equal footing to other residents of medical marijuana states.”

Unfortunately, the story didn’t end there. One of America’s “most corrupt congressmen,” as Citizens for Responsibility and Ethics in Washington (CREW) put it, was about to intervene.

On Wednesday, June 22, in the dead of night, House Appropriations Committee Chairman Hal Rogers unilaterally stripped the amendment from the appropriations bill, never saying a word to his Republican colleagues who voted for the amendment.

Congressman Hal Rogers’ sabotage sparked outrage from veterans, lawmakers, and the cannabis community.  Congressman Blumenauer released the following statement:

“Our language ensuring fair treatment for our veterans had broad, bipartisan support and passed both Chambers—it’s outrageous that it was removed. To add insult to injury, the legislation was released in the middle of the night, not even giving Members of the House an opportunity to review the language before voting on it. This isn’t right for our veterans, or the American people.”

Rogers’ treacherous betrayal was “an assault on democracy and those Americans who risked their lives and health to defend it,” said Americans for Safe Access (ASA) Government Affairs Director Michael Liszewski. “It’s shocking that House Appropriations Committee Chairman Hal Rogers would allow a veterans health care provision that won by wide margins in a Senate committee and on the House floor to be stripped from the bill behind closed doors.”

A Crooked Congress

Many of the captions following the shady sabotage of Rogers’ conference committee cast the blame on a “crooked congress,” or “out-of-touch lawmakers.” Of course, Americans often demonize “congress” for all sorts of different reasons—corruption, obstructionism, polarization, putting donors before constituents, and party before country. In fact, with an approval rating hovering near all time lows, blaming the U.S. Congress for our problems has become something of a national pastime.

The problem, however, is that there are 535 different members of the U.S. Congress, with wildly different levels of commitment to their constituents, the American people, and the long-term best interests of the nation as a whole. In other words, they do not all share an equal part of the blame for America’s problems.

What’s more, directing our collective outrage toward a faceless institution like “congress,” does virtually nothing to bring change. And it does nothing to get us closer to legalizing marijuana or ending the failed war on drugs.

What’s needed is more coordinated, targeted attacks, with tactics and tools that can put pressure on the specific individuals responsible, such as career politicians like Congressman Hal Rogers.   

The Undemocratic Power of the Committee Chairs

Lawmakers have been submitting bills in support of marijuana legalization at least as far back as 1937. The number of cannabis bills introduced in Congress has increased significantly in the last twenty years, and has dramatically accelerated in the last few. Today, there are over two dozen cannabis-related bills currently under “consideration” in Congress.  

A tally of the number of votes in support of all of these bills over the years would number in the thousands. And, yet, the overwhelming majority of these pro-cannabis bills were dead on arrival. And it’s not just because Congress has only recently taken a more favorable, evidence-based approach to marijuana.

The reason most all of these bills fail, and will likely continue to fail, is because a very small minority of powerful legislative leaders—virtually all of whom are completely entrenched and beholden to special interest groups—allow these bills to die in committee. In other words, committee chairs control the legislative agenda by simply refusing to put a bill on the agenda that they don’t like, ensuring that the bill will never get even a whiff of a vote on the House floor.

In essence, without a way of getting them out of committee, not one of these bills matters one whit.

The Power of the Petition in the House

Legalize MarijuanaFirst introduced to the rules of the U.S. House of Representatives in 1910, the discharge petition is one way that lawmakers can force a bill out of committee, against the committee chairs’ wishes, so that it can receive consideration on the floor. What it requires is an absolute majority in the House, which amounts to 218 signatures.

Given that Republicans are in control of the House (and, thus, hold all of the committee chairs), the current crop of 193 Democrats would require the signatures of a mere 25 Republicans to carry out a successful discharge petition (about 10.5% of House Republicans).

Clearly, those 25 Republicans would have to feel strongly about the bill, especially since they would be effectively pushing up against the leadership of their own party (though it’s easy to imagine that the 57 Republicans spurned by Appropriations Committee Chairman Hal Rogers would be willing to sign a discharge petition to remove a bill from his committee).

When contemplating the overall usefulness of a discharge petition, however, there are three other considerations that ought to be taken into account:

  1. First, getting all 218 signatures is not always required. Oftentimes just threatening a discharge petition has proven to be enough for the committee chair to add the bill to the committee agenda, rendering the discharge petition unnecessary.
  2. Second, sometimes the committee chairs prefer the use of a discharge petition to get the bill out of their committee rather than having to add it to the agenda themselves. It may be, for example, that they are politically opposed, but not personally or ideologically opposed to the bill. In other words, their constituents may be dead set against the bill and, therefore, putting it on the agenda may cause trouble in the next election. The discharge petition, thus, allows the bill to go to the floor for a vote without the committee chairs taking any “blame” from their constituents.
  3. Third, similar to the previous case, sometimes the party’s leaders themselves are not ideologically opposed to the bill, but are simply adhering to the views of their constituents. In this case, the “defectors” who sign the discharge petition to please their own constituents do not have to worry about going against their party’s leadership. In this case, as Drum writes, “the entire rest of the caucus gets to continue railing against it while secretly breathing a sigh of relief. That’s totally logical.”

This last case may, in fact, be a fair reflection of the situation with medical marijuana. It is entirely possible that a number of Republican lawmakers are in favor of medical marijuana (or, at least, not opposed to it), but they know that their constituents or, even more likely, their major donors are strongly opposed and, therefore, voting for it is not worth the trouble.

Using the Discharge Petition for Pro-Cannabis Legislation

The discharge petition may well be the best weapon in the pro-cannabis lawmakers arsenal. With a few notable exceptions (e.g. Senator Diane Feinstein, D-CA), most Democrats in both the House and Senate support medical marijuana, as well as either rescheduling marijuana or removing it from the list of controlled substances altogether. In fact, marijuana reform is now an official part of the Democratic party platform.  

There is also increasing support for medical marijuana and rescheduling among Republicans in both houses. There are, moreover, some Republicans who have been less hostile to legalization not because they favor medical marijuana per se, but because they are opposed to the federal government impinging on states’ rights.

What’s more, a rough estimate is that there are at least 5 or 6 dozen moderate Republicans who believe that the war on drugs has been a failure, and who think that the federal government should restrict their involvement with the states’ medical marijuana laws in accordance with the Cole memo. It is not hard to imagine that some of these legislators could be convinced to sign a discharge petition.

Recent votes in the U.S. House of Representatives suggest what may be possible given the right piece of pro-cannabis legislation. There is, for example, the Rohrabacher–Farr amendment which prevents the Justice Department from spending funds to interfere with state medical marijuana laws.

In 2015, the Rohrabacher–Farr amendment passed 242-to-186 with the support of 175 Democrats and 67 Republicans. Assuming all 175 Democrats would support a discharge petition for a bill similar to the Rohrabacher–Farr amendment, the signatures of only 43 of the 67 Republicans who voted in support of Rohrabacher–Farr would be required.

If all 193 of the currently serving House Democrats support the discharge petition (e.g. even those few Democrats who do not support medical marijuana may still be willing to help fight against Republican obstructionism), then only signatures from 25 of the 67 Republicans would be required.    

Of course, as mentioned, there was also the 2016 Veterans Equal Access Amendment which passed the U.S. House of Representatives 233-to-189, with the support of 57 Republicans.

Regardless of the actual breakdown, the point is the numbers to pass pro-cannabis legislation already exist. Furthermore, the bi-partisan support for cannabis speaks for itself, and indicates the potential success of a discharge petition in support of thoughtful cannabis legislation.

It is time for the more moderate, reasonable members of Congress to stand up to the extreme ideologues within their respective parties. A discharge petition represents an opportunity to do just that.

On February 7, 2017, Republican Congressman Dana Rohrabacher submitted H.R. 975, a bill written to end the federal prohibition of marijuana in states where it is now legal. The bill has 14 co-sponsors, including 7 Republicans, and 7 Democrats. The bill has been referred to the House Judiciary Committee (with Chairman Bob Goodlatte, R-VA), and the House Energy and Commerce Committee (with Chairman Greg Walden, R-OR).  

Let’s not let H.R. 975 be yet another cannabis bill that dies in committee. Please contact your U.S. Representative today and tell them you support this bill (H.R. 975), and you do not want to see it die in committee. Tell them that you want them to sign a discharge petition to ensure that the bill gets a vote on the House floor.   

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