How Many Legal Weed States Before We Get Federal Reform? We May Be There Already

Most states have passed some type of cannabis reform — only six consider it fully illegal. Yet, on the federal level, the marijuana prohibition has yet to be repealed.
Lawmakers continue to drag their feet, with just incremental progress taking shape in the 116th Congress.

Sources tell Benzinga that while reform may be on the horizon, there is concern that lawmakers may continue to linger on the matter despite a change in power in Washington D.C.

How Many States Does It Take?

The federal government is not obligated to act on any measure despite the views of the states. But a compelling case is being made with cannabis reform.

John Sullivan, EVP Government Affairs at Cresco Labs Inc. CRLBF, says Congress is taking action on smaller pieces of legislation, citing the SAFE Banking Act and a bill focused on research.

"It's only a matter of time and federal bandwidth for future discussion," he said.

Robert Bird, an attorney and professor of business law at the University of Connecticut, shares a similar sentiment.

"The more states legalize cannabis, the greater the pressure there will be for the federal government to follow suit," Bird says.

But while there is movement towards legalization, "there is still significant resistance to legalization both in government and members of the public," he adds.

Saphira Galoob, executive director of the National Cannabis Roundtable, says there may be enough states to push for federal reform, citing recent election results that saw five states pass reform as a recent example of the momentum.

"Cannabis initiatives succeeded in every state in which they were on the ballot, including one of the most conservative states in the union, Mississippi," Galoob says.

Other conservative states like South Carolina and Alabama are currently considering medical cannabis reform.

Senate Majority Leader Chuck Schumer's recent comments show that the new Congress is aiming to build off the momentum of the passing of the MORE Act in the House last year, Galoob explained.

"The question now is what reforms can be made law and by what legislative mechanisms over the next two years," she adds.

The Tipping Point Is Here

When discussing the number of states needed to compel Congress, Marijuana Policy Project (MPP) Vice-Chair Jeff Zucker believes the tipping point is here.

"Maybe it's 33 with medical and 15 with adult-use, because that's where we are now, and it seems the federal scales are tipping," he says. (There's scrutiny surrounding South Dakota and New Jersey adult-use legislation so the number is closer to 13). 

Jessica Billingsley, chair and CEO of cannabis tech brand Akerna Corp KERN, agrees. In her native state of Georgia, there has been a massive change in opinion.

When she started out a decade ago, some in the area called her a criminal.

"Over ten years later, I can confidently say that public attitudes and perceptions of cannabis are changing," said Billingsley.

A comparison often made regarding cannabis reform is that of same-sex marriage, which gained momentum in the early 2000s. The belief among proponents is that a state-level shift in policy compels national action.

Billingsley sees parallels in the two movements but cautions that crucial differences exist. Like marriage equality, states are moving much quicker on cannabis than the federal government.

"The reality is states are passing legislation that reflects how constituents are already living and interacting in our modern world, and the federal government is playing catch-up," Billingsley says.

Both issues are viewed as social causes, garnering an evolving public's support. That said, same-sex marriage's final determination came from the Supreme Court in the 2015 case Obergefell v. Hodges, which guaranteed same-sex couples' the right to marry.

"It is worth noting the Supreme Court effectively legalized same-sex marriage in the Obergefell v. Hodges ruling, not a measure by our legislative or executive branches, although there was support," Billingsley added.

In cannabis' case, it has not made many inroads through the Supreme Court, including the Court's October 2020 decision not to hear a case challenging the DEA's classification of cannabis.

When Could Federal Action Take Place?

The legality of cannabis likely won't occur in the Supreme Court but could soon occur in Congress.

Some believe action could come in the not too distant future.

Galoob highlighted recent activity featuring Schumer and Senators Cory Booker and Ron Ryden. Galoob adds that the trio "will soon be releasing a major cannabis reform bill in a clear signal that legislators are taking action now."

MPP's Zucker also noted an uptick in reform efforts since the Democrats gained power in the Congress and White House.

"I wouldn't be surprised to see something get through Congress this year or next," he says.

Attorney and professor Bird wasn't as sure of the timeline, with pressing issues like pandemic relief taking a top priority.

"Cannabis advocates must keep up public visibility on this issue in order to encourage lawmakers to take action," Bird advises.

Timelines may be unclear, but the gravity of reform is not. Proponents like Billingsley call the impact of stagnant reform "huge."

"There is an untapped national economy, including job creation and tax revenue, the U.S. is missing by not federally legalizing marijuana," she says, adding that the economy alone is enough to compel many to support legalization.

Still, other pressing matters like medical access and social injustice only compound the issue that much more.