Cannabis Safe Harbor: Up for Grabs … or Up in Smoke?

When we announced the passage of a cannabis safe harbor bill as a 2022 legislative priority again this year, we did not expect the SAFE Banking Act to pass the House a third time this Congress and still not make it out of the Senate, but here we are, at least today.

As you may recall, in 2021, the SAFE Banking Act passed the House twice: once as a standalone, and once as an amendment to the National Defense Authorization Act (NDAA). But the Senate never scheduled a vote on the standalone, and, despite widespread support, it was stripped out of the 2021 NDAA before that bill passed the Senate.

In February 2022, the House incorporated the SAFE Banking provisions into its America Creating Opportunities for Manufacturing, Pre-Eminence in Technology and Economic Strength (COMPETES) Act of 2022 and passed it a third time. But the Senate version of COMPETES did not include the SAFE Banking provisions. House and Senate leaders convened a conference committee to resolve the two bills’ differences, and, in the negotiation process (which remains ongoing as of this writing), the SAFE Banking provisions were stripped out. House and Senate leaders are hoping to pass the compromise legislation before their August recess, but the cannabis provisions are not expected to be reinstated.

Earlier today, the primary House sponsor of SAFE Banking, Rep. Ed Perlmutter (D-CO), indicated his intent to again offer the bill as an amendment to the must-pass 2022 NDAA. The House Rules Committee is expected to consider it the week of July 11. For now, the NDAA amendment effort will likely proceed along with any legislative proposal that emerges from Senate Democrats’ internal negotiations.

Those internal negotiations have been necessitated by key Senate Democrats, including Senate Majority Leader Chuck Schumer (D-NY), who have been withholding support for SAFE Banking because they wanted it to be part of a broader package that included criminal justice reform and/or marijuana decriminalization. However, their preferred broader package lacks the votes to pass, and, as a result, their resistance to SAFE Banking as a standalone is softening.

Senate Democrats are now working on a “SAFE Banking ‘Plus’” package, which would add one or more other cannabis provisions to the existing SAFE Banking Act. They hope to identify proposals that would attract the senators of their own party who would not have supported SAFE Banking as a standalone previously.

Democratic leaders hoping to affect cannabis policy may be running out of time—in this Congress and for the next two years. The GOP is expected to regain control of the House come January, and they may regain the Senate as well. While SAFE Banking enjoys bipartisan support, members of GOP leadership are not expected to prioritize it if they regain control of either chamber.

Senate Democrats are looking at several other cannabis-related bills, addressing issues like expunging cannabis-related criminal records or allowing marijuana users to own guns, for example, which provide a menu of policy options. Discussions appear to be aimed at setting the tone for consideration of a bipartisan, bicameral bill later this year. Whether such a package would have the 60 votes needed to overcome a filibuster remains unclear.