Stakeholders debate whether Harris or Trump would push marijuana reforms forward

(This story is part of the cover package in the September-October issue of MJBizMagazine.)

For the cannabis industry, the 2024 presidential election guaranteed a welcome change from stagnant status quos.

That much was true even before Vice President Kamala Harris’ surprise elevation to the top of the Democratic Party’s ticket in late July.

For the first time since marijuana reform became a popular issue with American voters, neither of the major-party presidential candidates – not Harris, a Democrat, nor former President Donald Trump, the Republican nominee – appears to be a risk to policy reform or the existing $32.1 billion U.S. cannabis industry.

Instead of which outcome is least bad, the questions cannabis executives are asking themselves ahead of the November election revolve around which of the two major-party candidates will be better – better for the industry and better poised to compel Congress to finally pass long-awaited reform measures, including potential federal marijuana legalization.

On that front, the cannabis industry has a clear favorite in Harris, a former San Francisco district attorney and California attorney general.

“We have a champion for cannabis reform, and that is the Democratic presidential nominee,” said David Culver, the vice president of policy for the U.S. Cannabis Council, a Washington, D.C.-based lobbying shop that counts major marijuana multistate operators as members.

Evolving attitudes about marijuana

That is a welcome change from Trump’s first term, when he appointed former U.S. Sen. Jeff Sessions – an Alabama Republican and noted prohibitionist who compared marijuana to heroin – to lead the Department of Justice.

It’s also a near-complete departure from the early Biden campaign in 2019-20, when advocates feared the sponsor of the notorious 1994 federal crime bill would find fault while in the White House with state-level adult-use legalization.

But Harris’ stance on the issue also has evolved.

As critics have said since 2019, when Harris briefly challenged for the 2020 Democratic presidential nomination – and memorably left Biden flustered during a debate when she challenged him on his role in ushering in the era of mass incarceration – her own history on marijuana is mixed, at best.

Though she deemphasized petty drug arrests as San Francisco’s district attorney – and declined to deploy criminal justice resources against the city’s nascent medical cannabis industry in the mid-2000s – her office did oversee 1,900 marijuana-related convictions between 2004 and 2011, when she was California attorney general.

In 2010, she signed on to an official ballot argument opposing Prop. 19, an early adult-use marijuana legalization effort.

At the same time, cannabis advocates supported her bid to be California’s top cop – in part because she was hands-off as district attorney and in part because the alternative, law-and-order Los Angeles prosecutor Steve Cooley, was much worse.

As California’s attorney general, Harris continued to have a mostly hands-off approach toward the state’s blossoming cannabis industry.

It was the Obama administration’s Justice Department, not the state attorney general, that led a crackdown on state-regulated medical cannabis dispensaries in 2011.

She also stayed away from the Prop. 64 legalization campaign in 2016.

Historic Harris?

In all, Harris proved to be neither advocate nor enemy of marijuana – which, most observers point out, was about as good as can be expected from a law enforcement official a decade ago.

“We’re all aware that was her job,” said Michelle Rutter Friberg, director of government relations for the National Cannabis Industry Association (NCIA), which lobbies primarily for small and medium-sized plant-touching businesses.

“There’s certainly been a very clear evolution, and now she’s not just an advocate but an outspoken one.”

During a relatively quiet few years as vice president, Harris stumped for Biden’s generational advances in marijuana reform.

She was out front on the Biden administration’s pardons for former federal marijuana offenders as well as the October 2022 executive order that culminated in the Justice Department’s proposal this spring to move marijuana from Schedule 1 to Schedule 3 of the Controlled Substances Act.

“She’s actually gone further than (Biden),” said Bryan Barash, vice president of external affairs and deputy general counsel at Dutchie, an Oregon-based online cannabis sales platform.

“She’s said, ‘We can’t stop until there’s full legalization,’ which he has never said.”

In other words, Harris has the best record on marijuana reform of any major presidential candidate, including Biden.

“That is historic, that is noteworthy, and that is something that the industry is excited about right now,” Culver added. “Many in the industry will be supporting her directly.”

“I would go further,” said Andrew Kline, former counsel for the Justice Department and a Denver-based partner at the Perkins Coie law firm.

“Anyone who cares about this issue should be voting for Democrats up and down the ballot – and for Kamala Harris in particular,” Kline said.

“Going forward, there is not much beyond triggering the administrative rescheduling process that a president can do.

“Biden has done more on this issue than any president has ever done in the history of mankind, but Kamala has been out front on this issue longer than I’ve been in the industry.”

Trump’s cannabis views

Compared to the “optimism” that marijuana industry interests feel for a Harris presidency, the vibe for a second Trump term is “uncertainty.”

Despite early fears of federal action – fueled by Trump’s appointment of Sessions, who rescinded the Obama-era Cole Memo that granted many cannabis businesses a sense of security – Trump’s first term in office saw the opening of major adult-use markets such as California, Illinois and Massachusetts, as well as recreational marijuana legalization via the Legislature in his home state of New York.

Amid the industry expansion, Trump did very little.

In all, advocates agree, Trump’s marijuana policy might best be classified as beneficial neglect.

He didn’t offer any help – the opposition to major reform in Congress remains the Republican caucus – but neither did the Trump administration use its power to make things more difficult for state-regulated operators.

“He appointed an attorney general who made a show of repealing the Cole Memo and then, in terms of actual policy, continued to follow the Cole Memo,” Dutchie’s Barash said.

“That’s a far cry from, ‘Cannabis is horrible, and we should stop it at all costs.’”

But what would a Trump administration do starting in 2025?

Pro-business beliefs

Most cannabis interests are banking on the business acumen of the former star of “The Apprentice” reality-TV show applying to the billion-dollar opportunities in marijuana.

“The Trump administration is pro-business and focuses on seeking new revenue streams with minimal regulations,” said Michael Teller, chief operating officer of The Panther Group, an Atlanta-based advisory firm that assists cannabis companies seeking capital.

“While his base is not as pro-cannabis as the Democrats’, there is still support,” Teller added.

But these are educated assumptions, and that’s about all the industry has to work with.

Recent developments offer little indication of Republican priorities.

Beyond a speech from Florida Gov. Ron DeSantis bashing a marijuana multistate operator-funded adult-use legalization measure in the Sunshine State, cannabis barely was mentioned at the Republican National Convention in Wisconsin in July.

Trump might have put some marijuana legalization supporters at ease with an Aug. 31 post on Truth Social that appeared to indicate acceptance, if not approval, of Florida’s Amendment 3 ballot measure to legalize recreational cannabis in the state.

Adult-use legalization “will happen through the approval of the Voters, so it should be done correctly,” Trump said in the post.

“We need the (Florida) State Legislature  to responsibly create laws that prohibit the use of it in public spaces, so we do not smell marijuana everywhere we go, like we do in many  of the Democrat run Cities.”

Trump added that “no one should grieve a loved one because they died from fentanyl laced marijuana.”

Vance at a glance

U.S. Sen. JD Vance, an Ohio Republican and Trump’s pick for his vice president, similarly offers very few recorded opinions about regulated marijuana.

A protege of libertarian Silicon Valley magnate Peter Thiel, who backed California’s adult-use legalization, Vance did spend time as an investment banker in liberal San Francisco.

But since winning office in his home state of Ohio, the Yale Law School graduate has studiously avoided staking out a position on marijuana.

He did offer a passing comment during a 2022 campaign debate suggesting a link between cannabis use and violence.

However, while on Capitol Hill, Vance has perched firmly on the fence, sliding off for brief interludes to oppose reform.

In the months leading up to adult-use legalization in Ohio in fall 2023, Vance dodged questions from local media trying to pin him down on the issue.

The rest of the state’s Republican establishment, including Gov. Mike DeWine, were largely opposed.

After Ohio voters legalized adult-use marijuana, Vance took a similarly nebulous “neither here nor there” position, saying the will of the voters should be respected.

In Washington, D.C., however, Vance voted against advancing federal banking reform in September 2023, later questioning the need for legislation such as the SAFER Banking Act.

Vance’s position is in stark contrast to his colleague in the Ohio delegation, U.S. Rep. David Joyce, a moderate Republican and leading GOP advocate for marijuana reform, including banking protections.

Uncertainty unneeded

Among the cannabis industry’s chief fears for a Trump presidency is executive-branch action to unwind Biden’s marijuana rescheduling process.

That could happen now that the Drug Enforcement Administration has delayed a rescheduling hearing until after the November election.

Meanwhile, it’s speculated that the executive branch could be imbued with new powers to overrule rescheduling based on a U.S. Supreme Court decision in June.

This guessing game – even if the Trump administration ultimately does nothing – could be enough to sow doubt among cannabis investors and entrepreneurs, which could lead to dour outcomes for marijuana businesses teetering on the brink of profitability or bankruptcy.

“That uncertainty is what the industry does not need,” the NCIA’s Friberg said.

“We’ve had uncertainty since Day One. We’re looking for some stability.”

“I don’t want us to be in the same position when Trump took office (in 2017), with everyone in this industry up in arms and when businesses felt threatened,” agreed Shanita Penny, a senior vice president at Washington, D.C.-based lobbying firm Forbes Tate Partners and senior adviser to the Coalition for Cannabis Policy, Education and Regulation.

Knowns and unknowns

In terms of marijuana legalization and broader cannabis reforms, the major presidential candidates can be reduced to a known quantity and a question mark.

Trump almost certainly won’t impair the continued spread of regulated marijuana markets across the United States, and his will to roll back popular Biden-era marijuana reforms is questionable at best.

At the same time, there’s little to indicate he’ll push Congress to pass federal reform schemes, particularly proposals packaged with social equity conditions.

In stark contrast, Harris is poised to use the nation’s highest office to drag marijuana policy into the 21^st century.

“This is the first time we’ve ever had a pro-legalization candidate on the presidential stage,” the U.S. Cannabis Council’s Culver said.

“If Harris wins, she’s going to be able to take the ball that Joe Biden got rolling.”

Chris Roberts can be reached at chris.roberts@mjbizdaily.com.