It has been nearly six years since Colorado Representative Ed Perlmutter began his pursuit of pushing Congress to entertain legislation that would allow banks to provide services to marijuana industry operators without risking penalties from the federal government. In 2013, Ed Perlmutter introduced to the House the Secure and Fair Enforcement Banking Act of 2013 (SAFE Banking Act), which was the first attempt to remove financial institutions’ liability and potential subjection to forfeiture for working with marijuana-related businesses operating under state laws. Mr. Perlmutter has introduced versions of the SAFE Banking Act religiously since 2013, but none of his efforts have been to any avail.
On March 7, 2019, Representative Perlmutter, with Representative Denny Heck (D-WA) by his side, gave it another shot and reintroduced the SAFE Banking Act of 2019. SAFE 2019 carried the support of a bipartisan coalition of more than 100 co-sponsors. That same day, SAFE 2019 was referred to the Committee on Financial Services and also to the Committee on the Judiciary. To date, SAFE 2019 has over 140 cosponsors.
A number of different government entities have spoken out in direct opposition of the vote, most of the concerns resting in contentions of SAFE 2019’s prematurity. National Fraternal Order of Police (NFOP) National President Chuck Canterbury and Executive Director James O. Pasco, Jr. wrote to Chairman Rodney Frelinghuysen and Ranking Member Nita Lowey of the Committee on Appropriations advising the Committee Members that the two NFOP members were strongly opposed to allowing the marijuana industry full access to the American banking system.
Another example of strong opposition to SAFE 2019 is a move by Senior House Republicans Patrick McHenry (R-N.C.) and Blaine Luetkemeyer (R-Mo), who sent a letter on March 21, 2019, to Financial Services Committee Chairwoman Maxine Waters (D-Calif.) indicating there were too many questions unanswered. They urged Ms. Waters to delay the vote on SAFE 2019. Some of Mr. McHenry and Mr. Luetkemeyer’s main concerns center in on what the anti-money laundering regulation enforcement means will be, whether insurers and investment companies would be impacted by SAFE 2019, and how law enforcement would be affected.
A congressional committee was scheduled to vote on SAFE 2019 on March 26, 2019, and the result was favorable to the Bill coming out of the House financial Services Committee in a 45-15 vote. It is now up to the Speaker of House, Nancy Pelosi, to decide whether and when she will bring the Bill to the floor or not for a vote, but it is safe to assume she will, given the momentum behind the Bill. The unfortunate reality is, however, that the House is just one hurdle this Bill must pass to make its way into law.
In 2014, the House had adopted an amendment to prevent the Department of Treasury from punishing banks that work with cannabis businesses. Even though this measure was approved by a House Floor vote of 231 to 192, it received no action in the Senate and therefore was not enacted into law.
To become law, a companion act to SAFE 2019 would need to be filed in the Senate for the current Congress, which has yet to occur and remains unpromising. There is no consensus opinion among Republican Senators on this issue, and many senators, including Senate Majority Leader Mitch McConnell, appear unlikely to vote on any kind of bill that would divide the caucus. Mr. McConnell has made it clear he does not endorse the legalization of marijuana, and many of our republican congressmembers view SAFE 2019 as a step in that direction. Additionally, last year Mr. McConnell voted against a measure proposed by Colorado Senator Cory Gardner that would have essentially done the same thing as SAFE 2019.
Marijuana comes last on Mr. McConnell’s agenda, with his priorities resting in issues involving additional tax reform, deregulations, and getting more judges confirmed, leaving little time on the legislative calendar to absorb committee work on marijuana banking issues before the election cycle. The Senate has its hands tied with its efforts focused on moving nominations before the 2020 elections. Each nominee gets thirty hours to debate on the Senate floor unless consent is granted to move nominations more quickly. U.S. Senator Chuck Schumer has been adamant that each nominee gets the full thirty hours, and Senate Rules allow for only one thing to be heard at a time on the Floor. According to a former senior senate counsel, with just around 18 months before the next elections, “the McConnell staff are working very hard to confirm as many judges as they can. Not on making it easier to sell marijuana.”
If the Bill passes through the House Floor, then it will likely be referred to the Senate Banking Committee. The former senior senate counsel indicated that the Chairman on the Senate Banking Committee, Senator Crapo, stated the Committee was “unlikely to formally engage this issue, from a Committee perspective.” Mike Crapo is from Idaho—one of three states in our country that has not made a single change to marijuana laws in any way, including decriminalization. Without action by the Banking Committee, such as a hearing, legislative markups, and a Committee vote, the Senate counterpart to SAFE 2019 will never make it ways onto the Senate Floor, and SAFE 2019 will likely sit on the desks of the Senate Banking Committee and nothing will be done with it.
The unfortunate reality about SAFE 2019 is that this congressional action alone would not be enough to resolve all the conflicts between federal and state law surrounding cannabis operations, even with regards to banking. The language of SAFE 2019 does not remove marijuana from Schedule I of the Controlled Substances Act. Only efforts directed toward legalization could resolve all the conflicts, which is regrettably not in legal cannabis’s near future.
Charles Feldmann is a founding partner of Feldmann Nagel Cantafio Margulis, PLLC and head of the law firm’s international cannabis team. He uses his past experience as a Marine Corps federal prosecutor, DEA Drug Task Force commander and Colorado state narcotics prosecutor to assist his clients in establishing strict regulatory compliance protocols at the state, federal and international levels. Read his full bio at MJBusinessAttorneys.com.