Senator Confirms ‘SAFE Plus’ Marijuana Banking Deal Includes Gun Rights And Expungements, Saying It ‘Must Pass’ In 2023

As congressional lawmakers lament the failure to get marijuana banking legislation attached to a large-scale spending bill, one senator is giving details about what bipartisan negotiations over the so-called SAFE Plus package entailed, including “important expungement and second amendment rights provisions.”

While it has been previously reported that gun rights were included in the package in order to get buy-in from conservatives as lawmakers pushed to produce passable legislation during the lame duck session, the new comments from Sen. Jeff Merkley (D-OR) appear to be the first on-the-record confirmation from a lawmaker on the issue.

Even though key legislators agreed on the framework of the cannabis reform deal, they couldn’t push past opposition from Republican leaders who refused to allow it to be included in large-scale legislation. But Merkley, a prime sponsor of the Secure and Fair Enforcement (SAFE) Banking Act, says that “we’ve made so much progress on forging bipartisan consensus,” and he “won’t rest until we get it done.”

The comments echo points that Senate Majority Leader Chuck Schumer (D-NY) made on Tuesday, in which he also blamed Senate Minority Leader Mitch McConnell (R-KY) and Pat Toomey (R-PA) for tanking the marijuana reform as part of the omnibus appropriations legislation. McConnell’s opposition has also been cited as the reason the reform wasn’t included in the National Defense Authorization Act (NDAA) earlier this month.

But Schumer’s remarks at a briefing on Tuesday didn’t reference specifics about what lawmakers were negotiations in terms of the much-anticipated SAFE Plus. While Politico first reported that gun rights would be a feature of the legislation, and sources have told Marijuana Moment the same over recent months, no legislative language of the deal has been publicly released.

“We have a bipartisan agreement which includes tweaks to SAFE Banking and important expungement and second amendment rights provisions,” Merkley tweeted on Wednesday.

That seems to reference the bipartisan Harnessing Opportunities by Pursuing Expungement (HOPE) Act, which would incentivize states and local governments to expunge cannabis records in their jurisdictions, and the Gun Rights And Marijuana Act (GRAM) Act, which would protect Second Amendment rights for cannabis consumers by exempting people in legalized states from a federal restriction that bars any “unlawful user” of a controlled substance from owning a firearm.

The note about “tweaks to SAFE Banking” possibly referred to changes were made at the behest of the Justice Department, which sent a memo at the request of Republican senators outlining concerns about potential unintended consequences of the reform as it relates to money laundering and other issues.

Sources previously said that those DOJ concerns had been resolved, but a small group of senators still met with the department this month to seek assurances.

The “tweaks” also could’ve been related to equity-related components. Advocates has pushed for more targeted language to ensure that the bill supported equity goals and didn’t primarily stand to benefit large corporate interests.

“For those who lost loved ones in dispensary robberies, for legal cannabis businesses who can’t access the financial services they need, for communities where cannabis is legal, we can’t let politics block meaningful, commonsense public safety and cannabis legislation,” Merkley said. “I won’t stop pushing to pass the SAFE Banking Act. We pursued every legislative avenue possible this year, and our bipartisan coalition is closer than ever before to getting this to the finish line. Cannabis businesses can’t wait—we must pass it in 2023.”

Earlier this month, Merkley said that he would “keep fighting” to get the reform “passed this year,” adding that “this is not the end of the road.”

“We need to make sure that legal cannabis businesses have access to the financial services they need—operating in cash is an open door to robbery and money laundering,” he said. That’s also a point highlighted in a recent analysis that looked at the trends and motivations for crimes targeting cannabis businesses in Washington State.

A Senate source had said last week that Schumer was “making a last ditch effort” to attach the cannabis banking language to the spending bill—but the majority leader wasn’t able to get the deal done. He said the issue would need to wait until the next Congress, which will see Republicans in control of the House.

It’s clear that negotiations were sensitive around adding anything new to the spending bill, and drug policy reform suffered as a final deal was forged. In addition to the lack of SAFE Banking or SAFE Plus language, the legislation also omitted several other reform proposals that were attached to spending measures approved in the House and Senate earlier this year. The final bill also maintains a rider that blocks Washington, D.C. from implementing a system of regulated cannabis commerce—another major setback for advocates.

Like Merkley and Schumer, most advocates will now look ahead to 2023 and the possibility of advancing the reform in a divided Congress.

Senate Banking Committee Chairman Sherrod Brown (D-OH) had signaled that he viewed cannabis banking as a likely 2023 issue, though a staffer said last week that he was still be open to passing it through the spending package if it contained broader provisions.

Rep. Patrick McHenry (R-NC), who will serve as chairman of the House Financial Services Committee in the next Congress, recently indicated that he similarly feels the issue will need to be decided after the lame duck. The congressman said that he remains opposed to SAFE Banking, but he left the door open to advancing it if that’s the will of his Republican colleagues.

“What I’ve pledged is having an open process. I told my members my view of it,” he said. “Members are able to come to their own conclusion about the bill. It’s so variable state by state.”

For his part, Sen. Cory Booker (D-NJ) has also pinned blame on McConnell, saying that his vocal opposition to cannabis reform has had a chilling effect of GOP members who might otherwise be amenable to passing legislation that contains SAFE Banking language.

“They’re dead set on anything in marijuana,” he said, referring to Republican leadership. “That to me is the obstacle.”

“The caucus is clearly divided but the people in power in their caucus are clearly against doing anything on marijuana,” he added.

Photo courtesy of Brian Shamblen.