THE RAPID REALIGNMENT ON RECREATIONAL DRUG POLICY over the last few years has gotten less attention than it would have in quieter political times. To the surprise of many observers, the red state of Ohio legalized marijuana in November with an astounding 57 percent in favor. Of the 81 counties in the state that former President Donald Trump won in 2020, 33 voted for legalized marijuana (and 5 more Trump counties were split evenly on the issue). For those who last tuned in to drug politics during the Obama administration, things have gotten a bit twisted.
And the voters whose support will be essential in this year’s presidential race—especially under-55s and independents—are way ahead of the politicians on the issue.
It shouldn’t be surprising that the vote in Ohio turned out how it did. According to a recent report from the Department of Health and Human Services (HHS), an estimated 52.5 million people in the United States—almost a fifth of all Americans over age 12—acknowledged using marijuana at some point in 2021, with 36.4 million saying they had used it in the previous month.
The science appears to be following public opinion. In January, HHS released documents showing that researchers at the Food and Drug Administration (FDA) and National Institute on Drug Abuse (NIDA) recommended downgrading the restrictions on marijuana, reclassifying it from the Controlled Substance Act’s Schedule I designation (where heroin and LSD reside) to Schedule III (alongside Tylenol with codeine, and anabolic steroids).
The reasoning for the proposed reclassification is that cannabis has a “currently accepted medical use,” and while there is still a possibility of abuse that “may lead to moderate or low physical dependence or high psychological dependence”—and so it must remain a controlled substance—the potential for abuse is lower than it is for Schedule I or II drugs. The FDA scientists also found that weed “does not produce serious outcomes compared to drugs in Schedules I or II” and “the vast majority of individuals who use marijuana are doing so in a manner that does not lead to dangerous outcomes to themselves or others.”
HHS sent that recommendation on August 29, 2023 to the Drug Enforcement Administration (DEA), and an announcement that DEA will follow HHS’s advice is expected soon.
UNDER NORMAL CIRCUMSTANCES, politicians and advocates who have long pushed for legalized (or at least decriminalized) weed would welcome the proposed change. But our political circumstances are not normal, especially in a presidential election year, and some Democrats have transformed the prospect for rescheduling into a push for complete descheduling. In other words, some Democrats aren’t satisfied with marijuana being regulated like a prescription drug, and instead want it to be completely unregulated, like cough drops.
On January 29, twelve Democratic senators sent a letter to Attorney General Merrick Garland and DEA Administrator Anne Milgram urging them to legalize marijuana right away:
The Biden Administration has a window of opportunity to deschedule marijuana that has not existed in decades and should reach the right conclusion—consistent with the clear scientific and public health rationale for removing marijuana from Schedule I, and with the imperative to relieve the burden of current federal marijuana policy on ordinary people and small businesses.
The letter oversteps in ascribing to marijuana regulation problems that are probably only tangentially connected to it, if at all. Opioid deaths, they claim, are caused by marijuana being still classified as an illegal drug, and the current laws “disproportionately [penalize] Black and Brown communities,” and descheduling would help to “restore access to public housing or nutrition assistance for individuals who use marijuana recreationally.”
The Democratic senators fail to mention that marijuana is recreationally legal in 24 states and medically legal in some fashion in 12 more—and fully illegal in only 4. They also fail to mention that most prosecutors in large cities don’t even prosecute marijuana possession cases any more, and many cities have even decriminalized marijuana possession.
The senators also miss two broader points. The first is that slow change might be preferable to fast change in this case. One of the arguments for rescheduling marijuana is that it would make it easier for researchers to understand how the plant and its chemicals interact with the brain. It would be prudent to see the results of that research before completely deregulating marijuana. Here’s how the McGlinchey Stafford law firm illustrates the radical difference between rescheduling and descheduling:
By way of metaphor, rescheduling is akin to switching from playing cello to playing violin. Descheduling is like changing from playing the violin to playing drums—plus transitioning from the orchestra to a free-form funk band.
A second issue the senators don’t acknowledge is where the responsibility for legalizing making marijuana lies. They are right that moving marijuana to Schedule III would be an incremental step that would fail to resolve all the regulation and enforcement issues associated with marijuana, especially the conflict between the de facto federal ban and state legalization. The only way to solve all of these problems is to repeal the federal ban on marijuana, and that can’t be done by the DOJ or DEA or HHS or any part of the Biden administration.
It can only be done by Congress. Good luck with that.
IF MARIJUANA WERE MOVED from Schedule I to Schedule III in 2024, what would be the upshot for the tens of millions of average marijuana users? And would such a move have political implications for this year’s presidential race?
To be sure, any changes will have to be pushed through the giant, slowly grinding machinery of the various agencies of the federal government, and court challenges would likely further delay the codification of a new schedule classification for the drug. Yet reclassifying marijuana could have some political ramifications in the short term—including ones that could motivate voters this fall.
Given that marijuana is currently legal in some states, illegal in others, and illegal federally all over, it can be confusing to relate a larger de jure change to our chaotic de facto reality. Sometimes federal agents enforce existing law, sometimes they choose discretion and latitude, and everywhere, the states are in the driver’s seat. This leaves marijuana without a commonly shared status in America. Among other things, a schedule change could provide an impetus to create a shared legal and social reality on the issue.
You might think that rescheduling would have an immediate effect on the way medical marijuana is provided, but the reality is more complicated. As attorneys Matt Zorn and Shane Pennington recently wrote for their “On Drugs” newsletter, “Once marijuana makes its way to Schedule III, physicians and probably even dispensaries will be able to dispense medical marijuana directly to patients without a prescription,” provided the drugs in question did not cross state lines while making their way to patients. But their argument comes down to the technical jurisdiction of the FDA, which is just the sort of issue that could give rise to years of court challenges, making it unlikely that medical marijuana users could start going without a prescription any time soon.
Still, there’s another area where a schedule change would result in a more unambiguous and immediate upshot. “There’s a whole lot of merit,” Zorn and Pennington wrote, “to the argument that the single most significant consequence of moving marijuana to Schedule III would be removing it from [IRS] 280E’s deadly vortex.”
The “vortex” they are talking about is a major federal obstacle to traditional finance in the cannabis industry: The IRS doesn’t allow normal deductions to be taken for businesses it considers illegal, and this essentially means that marijuana businesses can expect to be taxed on their gross income rather than their gross income minus expenses. According to the Marijuana Policy Project, this means taxes for those businesses are often 70 percent higher than normal, and sometimes even more.
But deductions are allowed if the business deals with a drug that falls under Schedule III status. So rescheduling marijuana would do a lot to help recreational cannabis business owners keep their prices competitive with those of street dealers supplied by illegal drug cartels.
The potential IRS change would go “a great way toward leveling the playing field,” Pennington told The Bulwark.
The companies will be able to compete against the illegal sales. We don’t know if that IRS change will affect credit card use or banking impediments currently used against these companies, but [the Treasury] could change their guidance if marijuana is moved to Schedule III, and the banks could follow.
This simple change in financials benefiting legitimate small businesses in the cannabis industry could become an issue worth campaigning on for President Joe Biden as he seeks re-election.
“People aren’t idiots on marijuana use and the changing laws, and it is a wildly popular and bipartisan issue,” Pennington told The Bulwark. Biden “can tell voters his administration is helping the small businesses to get their taxes lowered, which makes the price of recreational marijuana cheaper, which in turn helps to hurt the illegal drug cartels operating in the U.S.” Win-win-win.
This three-pronged appeal could work well in swing states that have legalized marijuana sales such as Nevada, Arizona, and Michigan. It could work now in Ohio, too.
TWO RECENT POLLS show how this issue, if played right, could help Biden’s margins in states that matter. A survey released in December by Lake Research Partners found that rescheduling marijuana from I to III was popular among the general public (58 percent in favor, 19 percent opposed) and very popular among voters between the ages of 18 and 25 (65 percent of respondents in that demographic favor rescheduling). Among independent voters, who will cast the deciding ballots in this year’s election, 55 percent support rescheduling cannabis, with only 15 percent opposed.
“When the question of rescheduling cannabis is framed around whether President Biden should accept the Department of Health and Human Services’ recommendation or try to block it, support grows even higher,” the pollsters said. “Two-thirds of voters (66%) believe the President should accept the recommendation to ‘reclassify cannabis’ compared to just 13% who say he should try to block it.” Further,
among voters 18-25, a whopping 84% believe President Biden should accept the recommendation, including 77% who feel that way strongly . . . By the end of the poll, impressions of Biden improve by a net double-digits—an 11-point swing overall, including a double-digit (+11-point) swing among younger voters.
In the second poll, from the Tarrance Group, 57 percent of all voters favor nationwide legalization, with 30 percent opposed. Of course, younger voters and Democrats lean harder in favor of reclassifying than the rest of the public does. But as with the Lake Research Partners poll, the key takeaway from the Tarrance poll concerns independent voters: Twice as many support nationwide legalization as oppose it, with 56 percent in favor to 28 percent opposed (16 percent remain unsure). The report adds that “those in favor also include a majority of those voters who are negative towards both Biden and Trump.”
The important thing borne out in these findings is that Trump could get boxed into a corner on this issue. His MAGA base is primarily made up of older and more conservative Christian voters, who are largely opposed to any form of legalization or change in marijuana laws. The voters Trump needs to bring alongside if he wants to have a shot at winning—younger and minority voters—want changes in marijuana laws and are in favor of the potential schedule designation change by big numbers.
Biden can go after this demographic without pissing off his base in any way, and Trump cannot. Democratic pollster Celinda Lake from Lake Research Partners toldPolitico last month that the marijuana issue could help woo back young voters who have grown disaffected with Biden on various other issues.
“What should be a base group has ended up . . . kind of a swing group,” said Lake. “They’re the most susceptible to looking at a third party. They’re the biggest group of people who don’t like either candidate. And so you’ve got a group of swing voters who are just incredibly supportive and intense on this issue.”
“The voters are way, way ahead of where the politicians are at,” Lake said. “This is just completely non-controversial to them.”
In 2020, Biden ran on trusting the science about COVID. In 2024, he should run on trusting the science about pot. Mainly because the voters he needs to get higher turnout and support from—the younger, urban, minority voters—buy into making marijuana more legal whenever possible. Switching pot from Schedule I to Schedule III won’t move things along as far as these voters want it to go, but Biden can take credit for making progress.
In a close presidential race, in a half dozen swing states that really matter, this could move the needle a few points. And in that sense, it could be one of those issues where Biden has something he can take credit for with the voting public, and Donald Trump won’t have any response.
Daniel McGraw is a freelance writer and author in Lakewood, Ohio. Twitter: @danmcgraw1.
Reclassifying it from a Schedule I drug to Schedule III could appeal to a huge portion of independent voters. Read More