GAO report shows Congress must act on marijuana

Last month, the Government Accountability Office (GAO) publically released a report entitled “State Marijuana Legalization: DOJ Should Document its Approach to Monitoring the Effects of Legalization.” It could have as easily been called “How our Current Marijuana Policy Isn’t Cutting It.”

Reading the synopsis, it quickly becomes clear that there is more than one way things could go south on marijuana policy. Congress could continue to do nothing as states vote to legalize at the ballot box for the third consecutive election. The flaws in the current system highlighted by this GAO report would only be exacerbated—like the fact that the Department of Justice (DOJ) hasn’t explained how it is tracking the effects of marijuana legalization or provided any specificity about how it will use data to determine if states are failing to meet the Obama administration’s enforcement priorities. Or Congress could pass a bill like Sen. Bernie Sanders’ (I-Vt.) Ending Federal Prohibition of Marijuana Act, ceding all control of marijuana policy to the states. That path would severely limit the federal government’s ability to set guiderails for responsible marijuana policy and turn a blind eye to the GAO’s recommendations to ensure that federal priorities (like drug-free kids and safe roads) are adequately protected.

{mosads}This report should be a wake-up call for Congress. What’s happening now—a conflict between laws in 23 states legalizing marijuana for recreational or medical purposes and the federal laws prohibiting its use for any reason—is untenable. DOJ is struggling to establish effective oversight, and states lack clear guidance (not to mention assistance with writing robust and effective regulatory systems).

There is a clear and simple solution to both the current mess created by our patchwork of laws and to the problems outlined in the GAO report: Congress should pass a safe haven bill allowing the Attorney General to grant time-limited waivers from the federal marijuana prohibition to states that have legalized marijuana, but only if they have smart and responsible regulatory systems in place to protect federal interests. By doing so, Congress could require states to submit data on the effects of their laws, specifically outline how DOJ should review that data to determine whether federal interests are being protected, and incentivize states that legalize marijuana in the future to do so in the most responsible way possible.

A bill like this would fix the problems states are experiencing on the ground, so that those who participate in marijuana markets that are legal under state law wouldn’t have to live in fear of prosecution. The marijuana industry wouldn’t be locked out of the federally-regulated banking system and forced to operate on an all cash basis. States would be able to more effectively intervene in and regulate their marijuana markets, because they wouldn’t be risking preemption lawsuits for getting too involved in the system. And the federal government wouldn’t have to treat all state legalization schemes the same. This ability to differentiate between state marijuana laws would enable the federal government to push back, for example, on the 17 states (out of the 23 that have legalized medical or recreational marijuana) that don’t have open container laws prohibiting all consumption of marijuana in moving cars, the 21 states that don’t prohibit firearms in marijuana dispensaries, and the 7 states without any regulations limiting the time, place, or manner in which marijuana businesses can advertise.

A safe haven or waiver policy would address the weaknesses in the current federal enforcement system described in the GAO report. It could provide effective oversight and direction to DOJ and the Attorney General when they analyze state laws to determine who gets a waiver. It could mandate the types of data that must be submitted, how exactly those data will be used, and what will be required of states to obtain and retain waivers. The federal government would still maintain the ability to go after bad actors, but law enforcement at both the federal and state levels would finally have the consistency and clear focus that they need to do their jobs. And states would have guardrails to steer them towards the smartest regulatory systems, so we’d end up with more Colorados and fewer Californias.

It’s not too late for Congress to act. Rep. Suzan DelBene (D-Wash.) has already introduced the SMART Enforcement Act in the House, which would create exactly the kind of safe haven policy outlined above. But as the GAO report indicates, there’s no time to waste, especially since voters in another half a dozen states may vote to legalize marijuana this fall. It’s time for a federal marijuana policy that works.

Trumble is the senior policy counsel at Third Way, a center-left think tank in Washington, D.C.