United States: Changes Ahead For Marijuana Banking? STATES Act Proposed In Congress

The subject of marijuana and banking has garnered more and more attention as an increasing number of States decriminalize or legalize its use, medicinally and recreationally.  Still, no matter what State law might say about the matter, a wide array of commercial and banking activity remains criminal insofar as it is connected with marijuana.  This a consequence of federal laws including the Controlled Substances Act, money laundering statutes, the unlicensed money transmitter statute, and the Bank Secrecy Act.  Of course, there are also inchoate crimes in connection therewith. 

The U.S. Attorneys of the ninety-four federal districts have been advised to weigh the charging of such violations under the DOJ's well-established Principles of Federal Prosecution.  It is not clear how charging decisions would be made with respect to financial institutions that service the marijuana trade in States where it is permitted under State law; however, this question has grown more pronounced: Will Congress act to accommodate States' differing policies toward marijuana?

The Proposed STATES Act

Several members of Congress have proposed such an accommodating approach through the "Strengthening the Tenth Amendment Through Entrusting States Act" (the "STATES Act"), S. 3032; H.R. 6043.

If enacted, this legislation would generally withdraw the Controlled Substance Act's application to persons manufacturing, producing, possessing, distributing, dispensing, administering, or delivering marijuana if doing so in compliance with applicable State law or applicable Tribal law (if within a federally-recognized Tribal jurisdiction located within a State that, itself, permits such marijuana activity).

The STATES Act would also remove "industrial hemp (as defined in . . . the Agricultural Act of 2014" from the Controlled Substance Act's coverage.

Certain applications of the Controlled Substances would remain with respect to marijuana, such as those related to transportation safety and non-medicinal distribution to persons under twenty-one years of age.

Range of Support

At this stage, there are indications of bipartisan support for the STATES Act.

Senator Elizabeth Warren (D-Mass.) sponsored and introduced S. 3032.  Original cosponsors included Sen. Cory Gardner (R-Colo.), Sen. Rand Paul (R-Ky.), Sen. Catherine Cortez Masto (D-Nev.), Sen. Lisa Murkowski (R-Alaska), Sen. Cory A. Booker (D-N.J.), and Sen. Michael F. Bennett (D-Colo.).  Two senators have since joined their ranks: Sen. Jeff Flake (R-Ariz.) and Sen. Amy Klobuchar (D-Minn.).

The House bill was sponsored and introduced by Rep. David P. Joyce (R-Ohio), and the original cosponsors included Rep. Earl Blumenauer (D-Ore.), Rep. Carlos Curbelo (R-Fla.), Rep. Jared Polis (D-Colo.), Rep. Ken Buck (R-Colo.), Rep. Barbara Lee (D-Cal.), Rep. Walter B. Jones, Jr. (R-N.C.), Rep. Rod Blum (R-Iowa), Rep. Diana DeGette (D-Colo.), Rep. Steve Cohen (D-Tenn.), Rep. Matt Gaetz (R-Fla.), Rep. Eleanor Holmes Norton (D-D.C.), Rep. Tom McClintock (R-Cal.), Rep. Luis J. Correa (D-Cal.), Rep. Jason Lewis (R-Minn.), Rep. Ro Khanna (D-Cal.).  Having since added their names are Rep. Justin Amash (R-Mich.), Rep. Charlie Crist (D-Fla.), Rep. Dana Rohrabacher (R-Cal.), Rep. Dina Titus (D-Nev.), Rep. Mike Coffman (R-Colo.), Rep. Jacky Rosen (D-Nev.), Rep. Thomas Massie (R-Ky.), and Rep. Ed Perlmutter (D-Colo.).

Further, President Trump has indicated that he will sign the STATES Act if passed by Congress.  The day after the bills were introduced, President Trump was asked, "Do you support Senator Gardner's marijuana federalism bill?"  He answered, "I really do.  I support Senator Gardner.  I know exactly what he's doing.  We're looking at it.  But I probably will end up supporting that, yes."

Current Status

After introduction, H.R. 6043 was "[r]eferred to the Committee on the Judiciary, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned."  It remains in committee.

No action has been taken on S. 3032 since its introduction.

Other Bills Pending

The STATES Act is not the only legislation pending in Congress which may affect marijuana banking.

Addressed most directly to the issue of marijuana and banking is the proposed "Secure and Fair Enforcement Banking Act" or "SAFE Act," S. 1152 (sponsored by Sen. Jeff Merkley [D-Ore.]); H.R. 2215 sponsored by Rep. Ed Perlmutter [D-Colo.]).  Other pending bills of note include the "Respect State Marijuana Laws Act," H.R. 975 (sponsored by Rep. Dana Rohrabacher [R-Cal.]), the "Ending Federal Marijuana Prohibition Act," H.R. 1227 (sponsored by Rep. Thomas A. Garrett, Jr. [R-Va.]), the "Regulate Marijuana Like Alcohol Act," H.R. 1841 (sponsored by Rep. Jared Polis [D-Colo.]), the "Responsibly Addressing the Marijuana Policy Gap Act," S. 780 (sponsored by Sen. Ron Wyden [D-Ore.]); H.R. 1824 (sponsored by Rep. Earl Blumenauer [D-Ore.]), the "Marijuana Justice Act," S. 1689 (sponsored by Sen. Cory A. Booker [D-N.J.]); H.R. 4815 (sponsored by Rep. Barbara Lee [D-Cal.]), and the "Marijuana Freedom and Opportunity Act," S. 3174 (sponsored by Sen. Charles E. Schumer [D-N.Y.]).  And there are others.

To date, no votes have been held on these bills.  They remain in committee.

It will remain to be seen how the STATES Act, and other bills affecting marijuana banking, may fare in the 115th Congress.  We will monitor for further developments.

The Troutman Sanders' Consumer Financial Services Law Monitor blog offers timely updates regarding the financial services industry to inform you of recent changes in the law, upcoming regulatory deadlines and significant judicial opinions that may impact your business. To view the blog, click here

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