Time is running out for cannabis banking advocates to push the SAFE Banking Act through the Senate before Democrats lose their majority in the House in January.
The bill, which would protect financial institutions that provide services to legal cannabis businesses, was dropped from the text of the fiscal 2023 National Defense Authorization Act (NDAA) on Tuesday.
The House passed the NDAA in July, with SAFE Banking included. But the cannabis measure’s fate in the Senate this year hews closely to how the chamber treated it 12 months ago, when senators also left it out of the NDAA.
Sen. Jeff Merkley of Oregon, the bill’s leading Democrat sponsor, said Wednesday he would try to get SAFE Banking attached to an omnibus spending bill ahead of a Dec. 16 deadline, according to Bloomberg.
Democrats aren’t alone in the fight. Nine Republican senators co-sponsor the bill, though Democrats need support from 10 to avoid a filibuster. On paper, Democrats may fare slightly better next session, with 51 senators in their party, meaning they’d need nine Republicans — which they have now, provided no cross-party co-sponsors change their minds.
Sen. Steve Daines of Montana, the lead Republican sponsor, on Wednesday told Bloomberg the bill’s advocates are “having conversations with House and Senate colleagues and looking to see if there’s a path forward.”
"The focus at the moment is trying to get it done before the end of the year in this Congress, and we'll see what happens after that," he told Law360. After that, "chances diminish significantly.”
Another option may be to bundle SAFE Banking with another cannabis-targeted bill. The HOPE Act, for example, would use federal grants to expunge state-level cannabis convictions.
In an interesting twist, at least two Republicans who co-sponsored SAFE Banking are speaking out strongly against attaching the bill to other legislation.
“When you get down to the last few weeks, like this, if those bills haven’t had the strength and the legs on their own to get time on the floor, the idea of attaching all of that to an omnibus that nobody gets to see before they vote on is truly offensive to me,” Sen. Cynthia Lummis, R-WY, told Bloomberg.
Shoehorning SAFE Banking into an otherwise-unrelated measure “dilutes the proper role of this place,” Sen. Kevin Cramer, R-ND, told Politico.
If last-ditch efforts this year fail, SAFE Banking could start over again in the House, where it has passed seven times. But efforts would resume without the bill’s chief author, Rep. Ed Perlmutter, D-CO, who is leaving Congress.
"We successfully elevated the issue and have everyone's attention,” Perlmutter told Law360 after SAFE Banking was left out of the NDAA. “So now we need to get it done. There is time to do it.”
Other lawmakers will pick up where Perlmutter left off. Rep. Earl Blumenauer, D-OR, co-chair of the Congressional Cannabis Caucus, said the fight to push SAFE Banking through is "not over until the final minutes of this session.”
But in leaving the text out of the NDAA, Blumenauer told Law360, "the Senate has once again dodged its responsibilities.”
Senate Minority Leader Mitch McConnell, R-KY, doesn’t see it that way. On the Senate floor Tuesday, he accused Democrats of “obstructing efforts to close out the NDAA by trying to jam in unrelated items with no relationship whatsoever to defense.”
“We’re talking about a grab bag of miscellaneous pet priorities — making our financial system more sympathetic to illegal drugs … [and] language that’s already failed to pass the Senate earlier this year,” McConnell said, according to Marijuana Moment.
SAFE Banking was left out of the America COMPETES Act, a manufacturing and innovation bill aimed at boosting the U.S.’s competitiveness with China, in June.
McConnell isn’t the only vocal opponent. Sen. Jim Inhofe, R-OK, the Armed Services Committee ranking member after whom this year’s defense bill is named, told Marijuana Moment he would “vote against my own bill” if it contained items he considered unrelated, such as cannabis banking.
The Senate’s majority leader, Chuck Schumer, D-NY, reiterated that passing SAFE Banking is “a priority,” although he has co-sponsored more comprehensive cannabis legislation.
McConnell, in a post Tuesday on the Senate Republicans’ website, called out Schumer for “trying to bog [the NDAA] down with Democrats’ obsession over marijuana policy.”
The SAFE Banking debate hasn’t necessarily been taking place in a bubble. The Independent Community Bankers of America (ICBA) and 44 state banking associations wrote Senate leaders last week, urging them to hear the SAFE Banking Act as a stand-alone bill or an amendment to other legislation by the end of the year.
“This is something, again, that’s had bipartisan support. We’ve been working with Republicans,” Schumer said, according to Marijuana Moment. “I’d like to get it done. We’ll try to discuss the best way to get it done.”
