Upholding Initiative 71

In the past few days, it has been widely reported that Congress has effectively overturned the initiative overwhelmingly endorsed by D.C. voters legalizing possession of small amounts of marijuana.

We think these reports are inaccurate. We also think supporters of D.C. democracy should take heart that there are good options available to District leaders for upholding the initiative.

To understand why this is so, it is important to carefully read the language of the bill passed by the House of Representatives. What it says is: “None of the funds contained in this Act may be used to enact any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution” of marijuana.

There are two reasons why this language does not overturn the initiative.

First, as Congresswoman Norton has pointed out, this language restricts the District only from enacting any law, rule, or regulation legalizing marijuana. And as she has also pointed out, through the adoption of Initiative 71, the District has already enacted the law legalizing possession. All that remains to be done is to send that initiative to Congress for its review. It is true that Congress might attempt to overturn the initiative during its review period; but the point now is that the current language does not do that.

Second, even if a majority of Congress might disagree with this reading of the language, there is a second reason why that language does not overturn the initiative.

It is this: the bill being passed now by Congress is an appropriations bill. As a result, the language in that bill does not overturn the District’s initiative; all it does is provide that “None of the funds contained in this Act may be used to enact any law, rule, or regulation” legalizing marijuana possession. The funds in the Act are those being made available to the District for fiscal year 2015. Provided the District uses none of those FY15 funds to pay for any activities regarding Initiative 71, the District can proceed with those activities.

And there is an easy way to do that: the District could simply use its reserve funds from prior years to pay for any further steps related to Initiative 71, rather than using any funds from the FY15 appropriation.

This is exactly what the District did last year during the federal shutdown when no funds were available to the District from the FY14 appropriation. As DC Appleseed recommended, the District used its reserve funds to keep the District government open, even though the federal government shut down. Significantly, then-Attorney General Irv Nathan confirmed the permissibility of this step in a legal opinion. And equally significant, Congress did not object to the District taking this step. That same step could be taken now with regard to Initiative 71.

In summary, D.C. officials have good options available for upholding democracy and the will of the people here in the District. It is way too soon to give up this fight.

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