Chuck Schumer’s Doomed Marijuana Monstrosity Is Not a Serious Attempt To Repeal Pot Prohibition

The first thing we should say about Senate Majority Leader Chuck Schumer’s marijuana legalization bill, which the New York Democrat finally filed today, more than a year after sharing a discussion draft, is that it will not pass. With the Senate evenly divided, Schumer needs Republican support to overcome a filibuster, which he has done little to attract. He can’t even count on unanimous support from his fellow Democrats, at least a few of whom are apt to be leery of his specific approach, if not altogether opposed to repealing the federal ban on marijuana.

What is Schumer’s approach? Last July, I criticized his 163-page discussion draft as excessively complicated, burdensome, and prescriptive. I said it was “larded with new taxes, regulations, and spending programs that seem designed to alienate Republicans who might be inclined to support a cleaner bill on federalist grounds.” The same is true of the new, supposedly improved version, but more so.

Schumer’s Cannabis Administration and Opportunity Act, which is cosponsored by Sens. Cory Booker (D–N.J.) and Ron Wyden (D–Ore.), now weighs in at 296 pages, nearly twice as long as the initial version. Whatever this is, it is not a serious attempt to build a bipartisan coalition in favor of eliminating the untenable conflict between federal marijuana prohibition and the laws of the 37 states that allow medical or recreational use of cannabis.

Start with taxes, which have been a formidable barrier to the displacement of the black market in states that set them too high. Those levies are one of the main reasons why unlicensed dealers in states like California still account for most marijuana sales. Given a decade of experience with that problem, the most prudent federal tax on cannabis products would be zero. Yet Schumer’s first draft called for a federal excise tax starting at 10 percent and rising to 25 percent by the fifth year, which would be in addition to frequently hefty state and local taxes. After a year of consultation and consideration, Schumer has left that provision unchanged.

Regulation is another factor that has made it difficult for state-licensed marijuana suppliers to compete with black-market dealers. The Cannabis Administration and Opportunity Act devotes 71 pages to new federal regulations of marijuana businesses that are already regulated by state and local governments, on top of the 52 pages dealing with taxation. In addition to giving the Treasury Department and the Bureau of Alcohol, Tobacco, Firearms, and Explosives authority over the cannabis industry, the bill would establish a Center for Cannabis Products within the Food and Drug Administration (FDA). The FDA would be charged with registering marijuana businesses, setting product standards, establishing labeling requirements, policing “adulterated” and “misbranded” products, regulating advertising and promotion, and imposing “restrictions on sale and distribution.”

In addition to mandating specific rules, such as a nationwide minimum purchase age of 21, Schumer’s bill would give the FDA carte blanche to impose any regulations it deems appropriate. It says the FDA may “impose other restrictions on the sale and distribution of cannabis products, including restrictions on the access to, and the advertising and promotion of, the cannabis product,” if it “determines that such regulation would be appropriate for the protection of the public health.”

Given the FDA’s dubious sense of what protecting public health means in other areas, such as regulation of tobacco and nicotine vaping products, that is a pretty scary clause. As in those contexts, whatever arbitrary rules the agency comes up with are bound to restrict consumer choice and help perpetuate the black market.

The new version of Schumer’s bill also retains “social equity” spending programs that are apt to turn off Republicans. The Community Reinvestment Grant Program would “provide eligible entities with funds to administer services for individuals adversely impacted by the War on Drugs,” including job training, reentry services, legal aid, literacy programs, “youth recreation or mentoring programs,” and “health education programs.” The Cannabis Restorative Opportunity Program would “provide loans and technical assistance” to “assist small business concerns owned and controlled b