Keeping Up the Fight

We strongly support Mayor Muriel Bowser’s announcement today that Initiative 71 legalizing possession of small amounts of marijuana will take effect as of tomorrow.

As Mayor Bowser said, the District’s view is that the initiative was enacted when the Board of Elections certified that the voters had overwhelmingly approved it. So Congress did not prevent the initiative from becoming law when it subsequently prohibited the District from using newly appropriated fiscal year 2015 funds to enact Initiative 71.

We also support Mayor Bowser’s view that, after this victory vindicating the will of D.C. voters, it’s time to look forward. The Council would like to enact a system for regulating legal marijuana in the District. But as D.C.’s Attorney General and the Council’s general counsel have pointed out, while Initiative 71 can proceed, fiscal year 2015 funds cannot be used to enact new legislation implementing Initiative 71–such as regulating and taxing sales in the District. In fact, the Attorney General instructed the Council that it may not even hold a hearing on such new legislation.

Now that Initiative 71 is becoming law in the District, we hope the Mayor, the Council, and the Attorney General will consider the possibility of finding another way forward on the needed additional legislation.

As we’ve said before, we think there is another way. Congress has prohibited the District only from using funds appropriated for the current fiscal year on enacting marijuana reform. That means that the District would be well within its authority to enact new legislation provided it uses funds outside Congress’s appropriation for fiscal year 2015.

The District’s contingency reserve is one such fund. Congress created the fund through an amendment to the District Charter and has separately appropriated it in other years. Congress also gave the Mayor broad discretion to access it. The fund can be used for any nonrecurring or unforeseen need arising during a given fiscal year–including an unexpected obligation created by federal law.

You may remember that in October 2013, the District relied on the contingency reserve to stay open when the federal government shut down. In fact, then-D.C. Attorney General Irv Nathan concluded that the District was on solid legal ground to spend that money in the absence of a fiscal year appropriation. And importantly, Congress accepted that approach.

We applaud Mayor Bowser for defending home rule on Initiative 71. We hope she now takes the next step of using the District’s contingency reserve to allow the Council to enact legislation fully implementing Initiative 71. Such a step would further vindicate the will of the voters and enhance democracy in the District.

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