by Hilary Bricken, Principal at Harris Bricken

The year 2021 was an emotional roller coaster for marijuana banking. It culminated in the death of the Secure and Fair Enforcement (SAFE) Banking Act in the Senate, when it didn’t make it into the National Defense Authorization Act (“NDAA”). As a result, licensed cannabis businesses are left hanging high and dry (again) on broad access to marijuana banking.

The maddening issue is that the SAFE Banking Act passed the House no less than fivetimes over the past three years. Worse, Democrats control Congress and the White House, and top Democrats in the Senate killed the bill this last time for essentially political reasons.

Representative Ed Perlmutter (from Colorado), the main sponsor of the SAFE Banking Act, vowed to file an amendment to the NDAA to re-include the SAFE Banking Act. He ultimately backed off though where such a move could have derailed the passage of the NDAA altogether.

Now, because of Rep. Perlmutter’s efforts, the SAFE Banking Act is back from the dead as an attachment to the 2022 America Creating Opportunities to Meaningfully Promote Excellence in Technology (“COMPETES“) Act. COMPETES is another spending bill focused on making “our supply chains stronger” and ensuring that we can compete with China in a variety of industrial and technological sectors. Rep. Perlmutter is retiring from Congress after this session, so I hope this is his biggest push of all to get marijuana banking fully online at the federal level.

The problem however, is this: the SAFE Banking language would eventually go back to the Senate for consideration (it’s already preliminarily cleared the House for inclusion). Key Senate Democrats who claim to support cannabis legalization have taken the position that chipping away at federal prohibition with piecemeal legislation like SAFE Banking (or singular tax reform) isn’t the way to proceed here.

In the end, it’s highly likely that SAFE Banking will die again. Whether that’s because of certain ego-driven Democrats or because the GOP rolls the Democrats in the mid-terms, no one can really say. The hope I have remains with the States Reform Act, which would solve the banking issue in one fell swoop via broad legalization.

Stay tuned.

Re-published with the permission of Harris Bricken and The Canna Law Blog