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H.R. 2076 (114th): Marijuana Businesses Access to Banking Act of 2015

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.

Last updated Jan 30, 2016. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Apr 28, 2015.

Marijuana Businesses Access to Banking Act of 2015

This bill provides a safe harbor for depository institutions providing financial services to a marijuana-related legitimate business insofar as it prohibits a federal banking regulator from: (1) terminating or limiting the deposit or share insurance of a depository institution solely because it provides financial services to a marijuana-related legitimate business; or (2) prohibiting, penalizing, or otherwise discouraging a depository institution from offering such services.

A federal banking regulator may neither recommend, motivate, provide incentives, nor encourage a depository institution to refuse to offer financial services to an individual, nor downgrade or cancel financial services offered to an individual, solely because the individual: (1) is a manufacturer, producer, owner or operator of a marijuana-related legitimate business; or (2) the depository institution was not aware that the individual is the owner or operator of a marijuana-related legitimate business.

A federal banking regulator may not take any adverse or corrective supervisory action, solely because of the business involved, on a loan made to an owner or operator of: (1) a marijuana-related legitimate business, or (2) real estate or equipment that is leased to a marijuana-related legitimate business.

Immunity from federal criminal prosecution or investigation is granted, subject to certain conditions, to a depository institution that provides financial services to a marijuana-related legitimate business in a state or one of its political subdivisions that allows the cultivation, production, manufacture, sale, transportation, display, dispensing, distribution, or purchase of marijuana. Neither the depository institution nor its officers, directors, nor employees may be held liable under federal law or regulation solely for providing such financial services or further investing income derived from those services.

The Department of the Treasury must require any suspicious activity report filed by a financial institution regarding a marijuana-based business to comply with specified guidance of the Financial Crimes Enforcement Network.