Advocates have started talking about a new strategy to bypass the 60 votes needed to pass marijuana legalization in the Senate.

Senate Majority Leader Chuck Schumer seems open to the idea of attaching the issue to a must-pass budget reconciliation bill. This option would only need a simple majority to pass.

Unfortunately, it is a complicated process. Even with Democrats controlling the chamber, the full support of all Democrat legislatures might not be there to enact comprehensive reform.

In a press conference last week Schumer, who is leading the legalization push, didn’t rule out the possibility of using budget reconciliation.

The Drug Policy Alliance Director of the office of national affairs, Maritza Perez, thinks there is only one way to pass legislation. “The way we see it, a must-pass bill is the only vehicle that can ensure we pass a marijuana justice bill in this Senate,” said Perez.

Chris Lindsey, director of government relations for the Marijuana Policy Project, is fully behind Senate leader Chuck Schumer. Saying, “We have no doubt he is looking at all vehicles that can accomplish reform”.

The Process for Reconciliation

As some believe the reconciliation route is the best option, they might not fully understand how complex the legislative process truly is. There are a series of rules that limit the type of measures that can be enacted under the procedure.

For example, the Byrd rule determines if a given proposal is an “extraneous matter” that is not pertinent to the budget process. There are multiple standards used to make such a determination. One of which is whether the legislation will add to the deficit beyond a 10-year “budget window”.

Now if any senator were opposed to legalization and wanted to block it from being included in the package based on the Byrd rule, they would need to raise a point of order. Next, the Senate Parliamentarian will decide, along with the presiding officer of the chamber. If they deem the language in violation of the Byrd rule, it will be stricken from the reconciliation bill.

More Hurdles Ahead

Assuming that the legalization measure for marijuana survives a Byrd challenge, it may face another challenge. Any member can introduce an amendment, and they all must be considered on the floor. This process is known as “vote-a-rama.”

Again, if any senator opposes the marijuana reform, they could force a vote on an amendment calling for the legalization language to be stripped. This would require a simple majority to defeat it.

With Democrats in control of the majority, this shouldn’t be a problem. But some members of the party have said they are not on board with federal legalization. So, in theory without total Democrat support, the legalization language could be stripped.

Sen. Jeanne Shaheen (D), and Sen. Jon Tester (D), are both against federal legalization. Sens. Joe Manchin (D), Bob Casey (D), and Mark Kelly (D) are all undecided on the issue of federal legalization. So, right off the bat, Sen. Schumer is potentially down five members of his own party. Losing any single one of these lawmakers would jeopardize the bill even if they only need 50 votes.

Every Democrat that does not vote in favor of legalization, Schumer would have to pick up a Republican to get back to 50. Sen. Rand Paul (R) supports cannabis reform so he could be one of the possible votes for this session. 

If senators make the move to incorporate legalization into a budget package via reconciliation, things could quickly get messy. But given the other route for 60-votes to end a filibuster, it might be their only option for success.

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