Four states plus the District of Columbia have legalized recreational marijuana and 23 states allow medical marijuana. Several other states may follow suit later this year. However, all marijuana use remains illegal under federal law, where the Drug Enforcement Agency classifies it as a Schedule I drug, the strictest category for what are deemed the most dangerous drugs in the Controlled Substance Act.
This poses a problem for legally-operating marijuana businesses in those states, which have often found themselves denied access to the banking system for fear on the banks’ part of federal prosecution. The Marijuana Businesses Access to Banking Act -- S. 1726 and H.R. 2076 -- aims to change that.
The bills’ sponsors in the Senate and House represent two states that have legalized recreational marijuana use: Sen. Jeff Merkley (D-OR) and Rep. Ed Perlmutter (D-CO7). The bill would prevent federal banking regulators from penalizing or prohibiting a bank that provides financial services to legal marijuana businesses. While a private bank could choose whether or not to do business with such organizations, none of the four government agencies dealing with regulation of banks could ban or punish banks that do. (Those four agencies are the Consumer Financial Protection Bureau, Federal Deposit Insurance Corporation, Federal Reserve Board, and Office of the Comptroller of the Currency.)
The House passed a similar amendment to a bill by 231-192 during the last Congress in 2014, which would have prevented treasury and securities regulators from penalizing financial institutions that do businesses with legal marijuana businesses. However, the bill which the amendment was attached to never received a vote in the Senate.
The sponsors defend their bill primarily by citing public safety concerns. “Forcing businessmen and businesswomen who are operating legally under Oregon state law to shuttle around gym bags full of cash is an invitation to crime and malfeasance. That must end,” said Merkley. The people of Oregon have spoken, and the federal government should make sure that legal marijuana businesses can operate properly within our banking system. It’s time to let banks serve these legal businesses without fearing devastating reprisals from the federal government.”
“First and foremost this is an issue of public safety. Not only are the proprietors at risk, but the employees and customers are also at risk of serious and violent crimes,” said Perlmutter. “It is estimated that 40 percent of the marijuana-related businesses in Colorado are unbanked. This means hundreds of millions of dollars in cash are moving around the streets of Colorado.”
The argument on the other side is that banks shouldn’t be engaging in businesses that are technically illegal under federal law, regardless of what the state law says.
A similar amendment passed a Senate committee 16-14 in July.