Bradley Arant Boult Cummings LLP
  October 6, 2020 - United States of America

Cannabis and the Candidates: Joe Biden Cannabis and the Candidates: Joe Biden

This is the first article in a three-part series focused on the intersection of the 2020 presidential election and cannabis policy in the United States. Each article will focus on the specific presidential candidates of the two major parties and the eventual winner. Check back in two weeks for the next entry in this series.

The 2020 U.S. presidential election is underway, with many voters already casting their ballots under unprecedented circumstances. One of the many consequences of the country’s focus on the COVID-19 pandemic is that voters have not had the opportunity to hear from the candidates for president and vice president on the range of issues to which voters have grown accustomed during election years. Cannabis issues, at both the federal and state level, are no exception, garnering virtually no discussion from the candidates in the last six months.

Cannabis, however, remains an important issue at various levels of government, as evidenced by the myriad pending proposals in Congress and the five states considering legalizing medical or adult-use (often called “recreational”) cannabis this November. So that begs the question: What does a Joe Biden presidency look like for cannabis policy?

The answer is not as simple as it might seem, or as it might have been if another candidate secured the Democratic nomination. And finding that answers requires an examination of the electorate, the Democratic Party, and the candidate. 

The general population appears to support some measure of cannabis reform. Polling of American adults shows majority support for the legalization of cannabis for either medical or adult use. Legalization receives majority support in both parties – nearly four in five Democrats, and more than half of Republicans, support legalization. This bipartisan support, in an increasingly polarized political landscape, should provide some assurances to the Democratic Party and Joe Biden that cannabis reform will have the support of the populace.

Given this surge in popular support, one might assume the Democratic National Committee (DNC) platform would expressly support meaningful cannabis reform. But cannabis reform has largely taken a backseat in the DNC platform this election cycle. While the DNC’s 2016 platform championed a “reasoned pathway to future legalization,” DNC members voted to strike language from the platform regarding legalization in the 2020 platform – instead focusing on federal recreational decriminalization, legalized medical use, and allowing states to set their own rules and regulations. The 2020 platform tracks the recommendations made by the Biden-Sanders Unity Task Force organized by former Vice President Biden and Sen. Bernie Sanders, and more broadly reflects the measured approach Biden appears to be taking take toward broad-scale recreational legalization.

And for Biden’s personal opinion? He was far from the most pro-cannabis Democrat that was running for president this cycle. During his long tenure in the Senate, he championed several pieces of “tough on crime” legislation. For example, in 1986, Biden introduced the Comprehensive Narcotics Control Act, which sought to establish a cabinet-level office to coordinate the federal government’s drug enforcement policies, and in 1993, Biden sponsored the Violent Crime Control and Law Enforcement Act, a pre-cursor to the 1994 Crime Bill. With this track record, one might reasonably conclude that a Biden presidency would take a dim view of the cannabis industry.

That may not be entirely fair, however, as a substantial portion of people who now support a liberalized cannabis policy were opposed to it decades ago.  Indeed, the Biden campaign’s policy position seems to be in line with the Democratic Party platform. Biden has publicly supported decriminalizing cannabis possession, legalizing medical cannabis, expunging prior cannabis convictions, and allowing states to make their own laws/regulations on the subject. He has gone as far to say that mandatory drug treatment should be used instead of jail or prison time, which may signal that decriminalization is not actually on the table.

If Biden were elected it seems unlikely that broad scale recreational cannabis legalization, one of the only issues in U.S. politics to receive bi-partisan support, would soon follow in the short term. A Biden administration appears more likely to seek to reschedule THC, cannabis’s psychoactive compound, to a lower drug schedule. Moving THC to a lower level would provide the the pharmaceutical industry with the opportunity to use THC in drugs but would keep it a controlled substance. There would also likely be an attempt to expunge federal cannabis convictions.

In sum, despite Biden’s history of supporting “tough on crime” legislation, he has indicated a willingness to legalize medical cannabis, decriminalize cannabis possession, and support states that choose to pass their own cannabis legislation. What a President Joe Biden will actually do with regards to cannabis is to be determined, and it depends on a variety of social and political factors, not the least of which is what Congress looks like after the election.

Check back in two weeks for part two of this series, as we examine cannabis under a second term of President Donald Trump.

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Bradley lawyers have the breadth of experience to provide full-service representation to our cannabis clients, including litigation, if necessary. As strategic advisors, we give each client the practical counsel they need to make the best decisions for their businesses.

Bradley’s Cannabis Industry team is a leading voice in the cannabis sector. Our attorneys have presented on cannabis issues at conferences around the country and have been quoted in an array of legal and mainstream publications, from the National Law Journal, Law360 and the Westlaw Journal to the Atlanta Journal-Constitution, the Associated Press, and ABC News.

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