(This story appears in the October issue of Marijuana Business Magazine. Poll data is through mid-September.)
The business outlook for cannabis companies could be significantly different this time next year, depending in large part on which party controls the Senate and which senators are elected.
Observers say a critical component to getting cannabis banking reform, eliminating Section 280E of the federal tax code, and rolling back federal prohibition of marijuana, among other things, is a Democratic-controlled Senate.
This was made painfully clear last year, when cannabis banking reform passed the U.S. House of Representatives with bipartisan support but stalled in the Senate banking committee under the command of Idaho Republican Jim Crapo.
Going into November, Republicans have a 53-47 advantage in the Senate. There are 35 Senate races this year, including 15 that are considered competitive and could result in flips. A new Senate could potentially pass legislation that would save marijuana businesses millions of dollars, depending on the size of the operations.
Here are snapshots of the most important Senate matchups, beginning with five key races that could change the makeup of the all-important banking committee. Incumbents are listed first.
U.S. Sen. Doug Jones (Democrat) versus Tommy Tuberville (Republican)
Despite being a banking committee member, Doug Jones is not one of the 34 senators co-sponsoring the Senate version of the SAFE Banking Act, which would enable financial institutions to serve cannabis-related businesses without fear of federal punishment.
He supports medical marijuana legalization, decriminalization and last year told reporters that cannabis “is really a states’ right issue these days.” Many observers consider Jones to be the most vulnerable Democrat up for reelection.
Jones’ challenger is former Auburn University football coach Tommy Tuberville, who opposes both medical and adult-use marijuana but is open to hearing more about MMJ.
“They’re going to have to prove to me that medical marijuana is good. As long as it’s medical marijuana, as long as you have to have a prescription,” Tuberville told The Birmingham News. “If we ever put marijuana on our streets legally, it’s over.”
Upshot: There are more outspoken marijuana allies than Jones, but his loss—as is now forecast—would be a pro-cannabis vote lost.
U.S. Sen. Martha McSally (R) versus Mark Kelly (D)
Martha McSally is reliably anti-marijuana. She opposes medical marijuana legalization and has voted against legislation such as the McClintock-Polis amendment, which prohibits federal funds from being used to enforce MJ prohibition. A former fighter pilot, McSally in 2019 reversed course and voted for the Veterans Equal Access Amendment, which would allow veterans to legally access medical marijuana.
Her challenger is Mark Kelly, an astronaut, former Navy captain and husband of former U.S. Rep. Gabby Giffords, also an Arizona Democrat. Kelly’s position regarding cannabis is unknown, but if he does win—and polls show him ahead in the race—it will stem partly from Arizona’s adult-use referendum getting people out to vote. (See story on page 48.)
Roughly 70% of Kelly’s supporters favor recreational legalization, while 23% oppose it. By contrast, 33% of McSally supporters back recreational legalization and 59% oppose it, according to OH Predictive Insights, an Arizona polling firm.
Upshot: A Kelly win would be an important flip for marijuana reform. This is a special election to see who serves out the remainder of the late U.S. Sen. John McCain’s term.
U.S. Sen. Thom Tillis (R) versus Cal Cunningham (D)
Thom Tillis has a middling record on cannabis. He opposes recreational and medical marijuana legalization but supports increased research into MMJ.
In a statement to Vice magazine in 2018, a Tillis spokesperson said the senator opposes federal recreational legalization. However, Tillis “supports efforts to remove regulatory roadblocks that place unnecessary limits on legitimate research into medical marijuana and derivatives, which includes the potential health benefits, interactions with other prescription medications and appropriate dosage.”
His opponent, U.S. Army veteran Cal Cumberland, hasn’t said much about marijuana. But Cumberland’s website notes that he believes in “allowing states to develop their own regulation and taxation of cannabis, while putting resources into public health and substance-abuse treatment.”
Upshot: Of the five close races involving banking committee members, this the closest. Recent polls give Cunningham a sizable lead, but the election gurus at the University of Virginia Center for Politics rate North Carolina as one of three “toss-up” states, along with Iowa and Maine.
U.S. Sen. David Perdue (R) versus Jon Ossoff (D)
David Perdue has said he is open to the medical use of marijuana, while news reports suggest he favors a states’ rights approach to MJ. State Rep. Allen Peake described Perdue as an “eager supporter” of efforts to pass a medical marijuana law in Georgia. Perdue has stopped short of supporting federal legalization and did not co-sponsor the STATES Act. But he appears to support giving legal cannabis businesses access to banking.
Perdue’s opponent, Jon Ossoff, is a former investigative journalist and CEO of media production company Insight TWI. Ossoff recently told CNBC that he supports not just decriminalization but nationwide legalization of marijuana.
“The fact that there are people doing time for nonviolent marijuana-related offenses while others are getting rich in the cannabis industry is a grave injustice. I’ll fight for outright cannabis legalization, an end to incarceration for nonviolent drug offenses and expungement of records for nonviolent cannabis offenses,” Ossoff told the cable news channel.
Upshot: In mid-September, most polls showed Perdue with a small lead. While Perdue has been softer than most Republicans on marijuana, an Ossoff victory would put an outspoken MJ supporter on the banking committee.
U.S. Sen. Tina Smith (D) versus U.S. Rep. Jason Lewis (R)
A former lieutenant governor in Minnesota, Tina Smith was appointed to the Senate in 2018 to fill the seat vacated when Democrat Al Franken resigned. She won a special election that year to serve out the remainder of Franken’s term.
Smith supported medical marijuana but not recreational legalization until this July, when she surprised many political observers by introducing the Substance Regulation and Safety Act of 2020. The bill deschedules marijuana, authorizes the U.S. Food and Drug Administration to regulate MJ products, promotes the safety and quality control of MJ crops and addresses racial inequities stemming from the war on drugs.
Her opponent, Jason Lewis, also has been a strong supporter of state marijuana programs. “The federal government has no business sending in the FBI and Department of Justice to prosecute people in full compliance with their own state’s law,” Lewis stressed on Twitter in 2018. As a congressman, he’s co-sponsored legislation prohibiting federal money from being used to enforce prohibition and descheduling marijuana to advance research.
Upshot: While Lewis would be one of the more pro-marijuana Republicans if elected, Smith’s support of federal adult-use legalization makes her a strong industry ally.
Here are six more Senate races whose outcomes could shape the marijuana industry going forward:
U.S. Sen. Cory Gardner (R) versus John Hickenlooper (D)
Cory Gardner is perhaps the most progressive Senate Republican on marijuana, having co-sponsored bills such as the 2018 STATES Act and the 2019 SAFE Banking Act. “I am obligated to the people of Colorado to take all steps necessary to protect the state of Colorado and their rights,” Gardner said shortly after former Attorney General Jeff Sessions jettisoned the Obama-era Cole Memo.
But Gardner trails his opponent in polls. After initially opposing marijuana legalization as the state’s top executive, former Colorado Gov. John Hickenlooper became more supportive after the success of legalization in his state. Hickenlooper told Iowa Public Television last year, “We should decriminalize on a federal level. … Declassify it from a Schedule 1 narcotic” and allow banks to service cannabis businesses.
Hickenlooper also said the federal government should not force legalization on states, but it should have a role in regulating the marijuana industry.
Upshot: Each candidate is good for marijuana, but some industry analysts lean toward Hickenlooper because a Democratic majority in the Senate is more likely to advance MJ legislation than a Republican majority Senate.
U.S. Sen. Susan Collins (R) versus Maine House Speaker Sara Gideon (D)
Susan Collins has at best a checkered record on marijuana reform, voting for amendments that would prohibit the FDA from using federal funds to interfere with state medical marijuana programs but voting against cannabis banking reform and opposing federal recreational legalization.
“From a federal perspective, if there were a bill in the Senate to legalize marijuana, I would vote against it,” Collins said in 2018.
Sara Gideon, Collins’ challenger, is a former speaker of the Maine House of Representatives who voted for a bill creating a regulatory structure for that state’s recreational marijuana program. Gideon’s former chief policy adviser, Erik Gunderson, heads Maine’s Office of Marijuana Policy.
Upshot: Collins has long disappointed marijuana advocates, while Gideon’s support for adult use in her own state would make her an industry asset at the federal level.
U.S. Sen. Lindsey Graham (R) versus Jaime Harrison (D)
Lindsey Graham was initially a nightmare when it came to marijuana reform—opposing medical legalization and the SAFE Banking Act while supporting jail time for MJ possession. More recently, Graham’s record has improved somewhat thanks to his support for veterans’ access to medical marijuana and amendments prohibiting federal interference in state MJ programs.
Jaime Harrison is an associate chair of the Democratic National Committee and former chair of the South Carolina Democratic Party. He favors the tax-and-regulate approach to federal marijuana legalization.
“I think we should legalize, regulate and tax marijuana like we do alcohol and tobacco,” Harrison told CNBC in July. Harrison, a former lobbyist, also helped pass a medical marijuana bill in the South Carolina House of Representatives in 2017, but the legislation never cleared the state Senate.
Upshot: While Graham has become less draconian in his approach to marijuana, Harrison’s support for federal legalization makes him the industry’s clear favorite. And Harrison has a real shot. While Graham was the favorite early in the race, polls show Harrison—who
has out-fundraised Graham in the past two finance cycles—in a dead heat with the incumbent.
U.S. Sen. John Cornyn (R) versus MJ Hegar (D)
John Cornyn is among the most anti-marijuana senators in Washington DC. He opposes medical marijuana legalization and amendments that would prohibit federal interference into state MMJ programs.
“We have a lot of questions we need to answer before we talk about normalizing a drug like marijuana,” he told The Dallas Morning News in February.
Cornyn’s opponent, MJ Hegar, a former Air Force pilot who served in Afghanistan, is unabashedly in favor of marijuana legalization.
Hegar’s campaign website outlines her support for the MORE Act, and in a February debate she said: “I think most people agree that we should legalize marijuana. Being a veteran and being in a community where people suffer—whether it’s from high suicide rates or PTSD or the opioid epidemic—this is something that marijuana could help in every chapter. And the reason I think it needs to go beyond medical is that most veterans are not self-identifying and seeking treatment and doing the necessary things that it would take to actually get a prescription.”
Upshot: Although Hegar trailed Cornyn in polls as of mid-September, an upset is still within reach and would be a major win for the marijuana industry.
U.S. Sen. Mitch McConnell (R) versus Amy McGrath (D)
As Senate majority leader, Mitch McConnell has been a powerful supporter of hemp and helped its legalization with passage of the 2018 Farm Bill. But he has been one of marijuana’s staunchest opponents. In July, McConnell blocked cannabis banking reform amendments from making it into a Congressional coronavirus-aid package. He has opposed amendments to prohibit federal interference into state programs and has repeatedly stated his opposition to medical and adult-use marijuana legalization.
Amy McGrath, a former fighter pilot who flew combat missions in Iraq and Afghanistan, beat a much more pro-legalization Democrat, Charles Booker, to win the party’s nomination. She hasn’t spoken in support of recreational marijuana legalization, but her website suggests she supports medical use: “Many veterans suffering from chronic pain and PTSD report improved health outcomes from medical cannabis. I stand with the American Legion in calling for the removal of cannabis as a Schedule 1 drug and permit its use to treat ailments that veterans, and others, face.”
Upshot: McGrath isn’t as pro-cannabis as many other Democrats, but she would be an improvement for the industry over McConnell. Of all the competitive races, this could be the hardest to flip.
U.S. Sen. Joni Ernst (R) versus Theresa Greenfield (D)
Jodi Ernst supported the legaltization of hemp through the 2018 Farm Bill, but she has vehemently opposed medical marijuana legalization, cannabis banking reform and prohibitions on federal interference into state programs.
Theresa Greenfield, a former urban planner and real estate developer, hasn’t made any public statements about cannabis. However, the political website ISideWith.org suggests that a majority of Greenfield voters support marijuana reform, and therefore she might, too.
Upshot: Polls have been inconclusive, while the University of Virginia Center for Politics recently moved the race from “leans Republican” to “toss-up.”