The D.C. Council is holding its first-ever public hearing on a bill to legalize marijuana sales on Friday, kickstarting a process that many city officials, lawmakers, and advocates have been awaiting for years. (There’s more than 100 people expected to testify.) And unlike many marquee issues that get debated in the Wilson Building, there’s widespread support from Mayor Muriel Bowser down through the council to create a legal marijuana marketplace like the ones that have popped up in more than a dozen states.

Currently, D.C. is in something of a gray area when it comes to legal weed. Back in 2014, voters approved Initiative 71, which legalized personal use, possession, and home cultivation — but not sales. There is a healthy market of “gifting” stores and services — Initiative 71 also lets people give away small amounts of marijuana — though city officials insist they aren’t legal and have tried to shut them down.

Despite the overall support and enthusiasm for legalizing sales, there’s plenty of questions and obstacles that could bog the process down. Whether it’s how to best ensure that any new industry can benefit residents who were most impacted by the war on drugs or looming and persistent opposition from Republicans on Capitol Hill, actually legalizing marijuana sales in the nation’s capital will be a lift — and possibly a much longer one.

Here’s some of the major issues that local lawmakers and officials will have to contend with.

Republican resistance on Capitol Hill

While it’s certainly notable that the council is starting to debate legalizing marijuana sales, the reality is that it’s not up to the council whether marijuana sales will ultimately be legalized. At least not yet.

Hanging over today’s proceedings will be the six-year-old congressional prohibition on D.C. legalizing sales — imposed after voters legalized personal use, possession, and home cultivation in 2014. Despite Democrats being in control of both house of Congress — and already having moved to repeal what’s known as the Harris Rider — it’s still unclear if and when the ban will actually be removed. (It’s worth noting that President Biden didn’t originally take the Harris Rider out of his budget proposal earlier this year.)

Back in October, Sen. Richard Shelby (R-Ala.) made clear that Senate Republicans are willing to put up a fight over Democrats’ move to repeal a number of social policy riders in the federal budget. While he specifically mentions the riders that prohibits the use of taxpayer funds to finance abortions (both in the U.S. and D.C. specifically), Republicans could also insist on keeping the Harris Rider in place.

While the earliest the rider could be lifted is December, there are already hints that that may not come to pass. Earlier this week, Rep. Rosa L. DeLauro (D-Conn.), who chairs the House Appropriations Committee, said that Republicans are insisting that Democrats step back on some policy issues before budget negotiations begin. While it remains to be seen what develops, it could mean the status quo — the Harris Rider — remains in place until some point next year.

That wouldn’t stop local lawmakers from debating and even voting on a bill to legalize marijuana sales, but it would prevent Mayor Muriel Bowser from signing it into law. And even if she eventually was able to, there’s another risk on the horizon: if Republicans take control of the House again in 2023, they could again reimpose restrictions on D.C. legalizing marijuana.

There’s certainly a lot of moving parts, not to mention plenty of unknowns before D.C. can move from wanting to legalize marijuana sales to actually being able to do so. And it isn’t the first time Congress meddled in local marijuana decisions: after D.C. voters overwhelmingly approved legalizing marijuana for medicinal purposes in 1998, congressional Republicans blocked the measure from taking effect for more than a decade.

Regardless, D.C. Del. Eleanor Holmes Norton said Thursday she would continue pushing to repeal the Harris Rider. “I will always fight to remove each and every rider because D.C. should have full control over how it chooses to spend local funds. Anything less is unacceptable,” she said.

Gifting stores and services

If you didn’t know otherwise, you may well think marijuana sales are already legal in D.C. There are already brick and mortar stores and convenient delivery services that will get you marijuana in just about any form, after all. But those exist in a gray area of the law, and whether they’re allowed to transition into a future legal market is a tricky question lawmakers will have to answer.

The stores and delivery services exist because of a small provision in Initiative 71, the 2014 ballot initiative that legalized marijuana possession, which permits anyone to give someone else a small amount of marijuana. Clever entrepreneurs have worked that into a full business model — most of these “gifting” stores and services will sell you an expensive sticker or item of clothing, and give you the marijuana of your choice as a gift.

City officials say these gifting schemes are illegal, and D.C. police have raided them. (Ironically, D.C. officials say Congress is partly to blame for this gray market since the city hasn’t been able to legalize sales.) The issue came to a head in the D.C. Council earlier this month, when Chairman Phil Mendelson tried to ramp up civil enforcement against the stores and services. The attempt stirred immediate and organized opposition from the vendors — some of which now have lawyers and lobbyists — who said they represented a recreational marijuana industry in the making, and one that includes healthy representation from Black Washingtonians. Mendelson ultimately relented, though not before pledging to raise the issue again.

Many of the vendors are expected to testify on Friday, but it remains to be seen how lawmakers respond to what’s essentially an unlicensed marketplace that already exists. Many of the vendors want to be given a path towards the legal market once it’s created. D.C. Marijuana Justice, the group that spearheaded Initiative 71 and its original gifting provision, has another idea: they’re asking the council to create special licenses for marijuana-related cottage industries and growers that would allow them to sell wholesale to retailers, manufacturers, and at farmers’ markets.

“Combining criminal justice reforms and economic innovation, the amendment would guarantee D.C. implements a profitable, equitable, affordable and transparent system of adult-use cannabis sales, testing and cultivation,” says Nikolas Schiller, the proposal’s author and co-author of Initiative 71.

Equity

More than a dozen states have legalized marijuana sales, and one prevailing theme is that there’s a lot of money to be had. Another theme, though, is that much of that money has gone to white business owners and conglomerates, not the Black and Latino residents who were historically and disproportionately targeted by the war on drugs. In response, more lawmakers have started developing ways to factor equity into legal marijuana.

That’s been the case regionally. In D.C., Maryland, and Virginia, marijuana legalization measures that have been proposed or are making their way through the legislative process would require automatic expungement of records for certain marijuana-related arrests and convictions, set aside growing and sales licenses for communities most impacted by the criminalization of cannabis, and mandate that a certain percentage of revenue from sales be reinvested in those communities.

In a bill introduced by Bowser earlier this year, residents with a prior marijuana conviction would get preference points when applying for a new licenses to sell or grow, and those who have lived in wards 7 or 8 for the preceding five years would get exclusive right to run marijuana delivery businesses. 

A competing bill introduced by Mendelson would set up a Cannabis Equity and Opportunity Fund to help fund marijuana businesses run by residents of areas with high levels of poverty or drug arrests. It also would establish a Community Reinvestment Program Fund to help pay for homeless services, economic development, and other programs in low-income neighborhoods.

Of course, talking about equity in marijuana is easier than successfully securing it. (For a nearby example, consider Maryland’s initial missteps in making sure its medical marijuana industry was diverse.) D.C. history is replete with examples of well-meaning efforts to make sure government contracts go to local businesses — and creative attempts to get around them. Legal marijuana sales in the states that have approved them have attracted large multi-state businesses and conglomerates; it’s likely those same ones would want a foothold in D.C.

What’s next?

Friday’s hearing is just that — a forum for the public to weigh in on how marijuana should be legalized. After that, lawmakers and their staffs will fine tune the bill in hopes of getting it to a full council vote — though there’s no expected timeline on when that could happen. But even if it does happen, whether Bowser can sign a final bill comes to down to whether Congress lifts the Harris Rider or not.