Senator Cory Gardner talks about the path of the STATES Act, which has been surprisingly, and perhaps ironically, cleared by the helping hand of Jeff Sessions. His rescindment of the Cole Memorandum of the Obama era tried to quash states rights on the issue of cannabis, but only led to the more simplified STATES Act. Through it, the Controlled Substances Act is essentially negated for those in accordance with state law, helping make way for progress on many of the issues surrounding cannabis for those states.
Cory Gardner: Thanks for having me.
Seth Adler: No, thank you for having me. Very much appreciate coming on in and speaking to you about The States Act.
Cory Gardner: Well happy to do it, happy to do it. Welcome to Washington, a good snowy day in the middle of a shutdown, so a lot of work that needs to get done.
Seth Adler: Maybe we'll get to the shutdown. We're here to talk about cannabis, and what is striking to me is it was about this time last year when then Attorney General Jeff Sessions rescinded The Cole Memos, and that it turns out is almost the best thing that could've happened for cannabis law reform.
Cory Gardner: It is a strange sort of historical fact that will go down, that the person who may have done more for state's rights actually is Jeff Sessions. In an effort to try to quash state's rights, he actually probably did more to embolden them than anybody else.
Seth Adler: So going back in time, in the Obama administration, Deputy Attorney General Jim Cole wrote The Cole Memos. You can hear more about those in his episodes, but essentially that was just guidance for his US Attorneys to say, "Don't pay attention to this." [crosstalk 00:01:55]
Cory Gardner: Discretion, something that they do historically when they look at the law. They look at the regulations and say, "Okay. Here's our ranking of things that we're gonna spend most of our time on, and guess what? Marijuana isn't one of those areas we're gonna spend all of our time enforcing."
Seth Adler: Mm-hmm (affirmative), and then as we just said, Attorney General Sessions rescinded those memos. I have never seen a more impassioned senator, I don't think in my time, but maybe it's because this is an issue that I'm intimately involved with ... You went out that same day onto the Senate floor and really were quite, what?
Cory Gardner: Yeah.
Seth Adler: How would you describe your emotions?
Cory Gardner: Well pissed off I guess, if I can say that.
Seth Adler: Yes you can.
Cory Gardner: I mean, I think ... Look, I'll tell you something I probably never shared before as part of the story. When The Cole Memorandum gets reversed, repealed, overturned, I immediately called Jeff Sessions and, "Need to speak to the Attorney General." I can remember I was in the basement of the Russell Senate Building when his call came in, and I'm kind of looking around in the middle of a hallway saying, "Okay, I gotta take this call, but I don't know where to go." So I ducked into the Senate barber shop, and I'm on the phone, and I'm in some room back there, with Jeff Sessions. I remember this conversation because Jeff said, the attorney general said, "Well this really isn't a big deal. It doesn't really ... I don't think anybody's gonna even notice that we did this."
Seth Adler: Really?
Cory Gardner: And I said, "Mr. Attorney General, General Sessions, with all due respect, this is a big deal. It's a big deal to Colorado. It's a big deal to the issue ... This is a big deal."
Seth Adler: Businesses, patients.
Cory Gardner: And then ... Right, businesses, patients, and the states more and more across the country that are going this direction. So it was ... That conversation just made me even more angry about what had happened. I was angry too because I felt like he had not told me the truth, that in the lead up to his confirmation he had said that there would be no change in policy, he wouldn't change directions, it wouldn't be a focus. Then all of a sudden without any kind of heads up about this, and maybe it wouldn't have made a difference even if he did give us a heads up, but all of a sudden here we have this new policy. It completely goes back on what he told me, and then a conversation where there seemed to be a level of sort of a tone deafness that it was just shocking on this.
Seth Adler: If it's not a big deal why did you do it?
Cory Gardner: Right. If it didn't mean anything, if it didn't amount to a hill of beans, then why did you make it a big issue [crosstalk 00:04:10]
Seth Adler: Why are you spending time on it? [crosstalk 00:04:11] Exactly.
Cory Gardner: So here we were, and so that day built up and built up and built up. I'd finally just had it, and went down to the floor and gave a speech on what the respect for states' rights should mean and what I thought it had meant to him during the confirmation.
Seth Adler: Right, and for his entire life, right?
Cory Gardner: Right.
Seth Adler: I mean [crosstalk 00:04:30] States' rights I understand it, comes from the right. We love the 10th Amendment on the right.
Cory Gardner: And that's just it, I mean people talk about the 9th and 10th Amendments, and here's a great chance. You can't just pick and choose your moments to do this. I mean that's the thing, and I think my history is well known too. I did not support legalization when it happened, but Colorado chose to do it. It would be even greater support for it if they moved on it today. We have something like every state but Nebraska, Wyoming, and Idaho that have done some form of legalization.
Seth Adler: Yeah. When I spoke to Governor Hickenlooper, he also did not support it to begin with, but he said, "Listen. My bosses told me what to do."
Cory Gardner: Yeah.
Seth Adler: And I'm paraphrasing, but essentially, "They're the ones that are in charge and if they vote for it, I gotta follow that as an elected official." That is what your-
Cory Gardner: That's exactly right, and like I said, if the vote were to be held today, it would pass by an even greater margin. Now we have a-
Seth Adler: Congress is really good at sticking its head in the sand.
Cory Gardner: Yeah, you've noticed.
Seth Adler: Really good at sticking its head in the sand, and so here is another issue where Congress is trying to stick its head in the sand with ... In Colorado alone, $2 billion of cash, you've got jobs that are being created, but those employees can't take their money down to the bank and deposit it. They can't get a home loan if they're working in this industry. You've got families who, you know, this medical refugee situation where they're coming in from all over, especially early on this. It may be lessened now with more and more states moving toward a medical legalization, but they were coming to Colorado, separating their families just to have access to the life changing, life saving pharmaceutical applications, CBDs.
So it just ... You saw this happen, and yet Washington's turning a blind eye to it. It's ignoring the issue and not fixing it. Former Deputy Attorney General Jim Cole did say, "I just did what I could. It would be much better for Congress to act." You mentioned a couple of conversations and you've had subsequent conversations with our President. So I would love for you to take us through those phone calls if you would, if you don't mind.
Cory Gardner: Well it just so happened that I actually was in The White House, scheduled already to be in The White House on the day that The Cole Memorandum was overturned. I think it was either that day or maybe it was the next day, but I mean it was that day, so it was that exact day-
Seth Adler: Went from the barber shop to The White House.
Cory Gardner: From the barber shop to The White House. So I'm at The White House, and it was on trade, the meeting was set up a week or two earlier on trade issues and tariffs. So we went to the meeting, and after the meeting was over I said, "Mr. President, I need to speak to you about something else that happened today." I said, "Jeff Sessions." And he just immediately, he interrupted. He immediately said, "Oh yeah, we need to undo this. He needs to stop this." It was very clear to me at that point that there was a disagreement between the president and the attorney general on this. He went a little bit further and said, "Look. I don't like this. This isn't something I support, but the cat's out of the bag and it's not going back," or the ketchup's out of the bottle, one of those great analogies.
Seth Adler: Toothpaste out of the tube, whatever.
Cory Gardner: Yeah, toothpaste out of the tube. He did something.
Seth Adler: But this was in person?
Cory Gardner: In person, in The White House. In The Oval Office. He said this and he goes, "We need to just move forward." This isn't the, I think his exact statement was, "This sounds like something my grandpa said in the 1950s."
Seth Adler: Huh.
Cory Gardner: So at that point I realized that there was an ally in the president on this, and I kept encouraging the press to ask Jeff Sessions, "Do you agree or disagree with The President on this?" You know, I don't know that anybody did, but I kept trying to push people [crosstalk 00:07:54]
Seth Adler: He might not have picked up those calls either though, right?
Cory Gardner: I kept trying to push people to it, and in subsequent conversations with the president he's never backed away from that commitment. He's always said the same thing and remained consistent, and I think understands the needs to have this federal fix.
Seth Adler: You know, in the retelling of this, this all sounds very nice, but you did put your tail on the line and you did say, "I'm not going to ... We're gonna stop these judicial nominations until I get word on this." That is bold sir.
Cory Gardner: Well, and it actually wasn't judicial nominations. It was the Department of Justice nominations, so-
Seth Adler: Excuse me.
Cory Gardner: Yeah, yeah. So we did put a hold on Department of Justice nominations, and the first conversation with the president was directly related to those holds because he called me up and said, "Cory, we've got this nominee. I really need this nominee. Can you help me?" And I said, "Well Mr. President, I'm sorry. Here's the situation." And he's like, "Okay. You've got my commitment to support the bill. You've got my commitment to support a solution on this." I said, "Well, you know what," and I said, "Well the other thing we need is of course on The Cole Memorandum itself, if you follow what Jeff Sessions has done, that's a big problem for Colorado." He says, "No. We're not gonna do that. It doesn't mean anything. We're not gonna do it." Then here we are.
Seth Adler: Huh.
Cory Gardner: So that was the commitment from the president not only on showing that he's gonna disagree with Jeff Sessions, but actually saying, "Nope, don't worry about what he's done because it won't impact Colorado," and then moving forward down for a solution.
Seth Adler: No matter who it is, to stand up to The President of The United States and say, "No I'm not going to do this unless you do that," again, is pretty bold. There are other words for that as well. It takes cajones for instance. Did you even think ... Was this cognitive or did it just occur to you?
Cory Gardner: Well I mean you knew this was gonna come, right? You knew at some point that the pressure we were putting on them, they would have to meet that pressure and that they would have to do something because we were creating a challenge for them. That's exactly why I did what I did, knowing that it was going to be ... This would be something that I could do that could be a tool in finding a solution, and that's exactly what happened. I knew when he called, I said, "Okay. I mean this is where I am and he's gonna have to know this." You stand up. You just do what's right.
Seth Adler: So right there you're already talking about essentially the verbiage that goes into The States Act.
Cory Gardner: Yeah.
Seth Adler: How did that come to be with Senator Warren?
Cory Gardner: Yeah, so we had a group meeting I think, gosh, I think we had maybe a dozen Senators. One of the bigger meetings I've ever had here. When we try to get senators together for a meeting, they come in, they may eat the free food you have out on the table, then they leave and somebody else comes in, and maybe they drink the free Pepsi you have on the table and then they leave. Then trying to get a dozen or more in the room at the same time to stay for awhile can be a trick, but we did. This meeting was probably the best attended, Republicans, Democrats. We're sitting there trying to find a solution, you know, who's gonna do what, talking Ron Wyden and Kirsten Gillibrand was there, and Maria Cantwell and Steve Daines and others were there. Senator Warren talks about this, "Hey, what about looking at this not from a standpoint of schedules or legalization, but looking at this from if a state has done it, letting the state do it?" That's kind of the genesis of how we move forward with it, and her saying that there was in line with what we had talked about with the president with. So I may have gotten a little bit of the timeline out of order, because that-
Seth Adler: I understand.
Cory Gardner: But I mean that was the conversation that we ended up having with the president about The States Act specifically.
Seth Adler: Indeed, and it is kind of brilliant, if I may, because it's essentially one line, that The Controlled Substances Act shall not apply to those who are in accordance with state law.
Cory Gardner: No, I think it's great in its simplicity, but in a town full of lobbyists, they really freak out about simple things because they look at it saying, "Well how do we justify this? Are you certain that is has the tax provisions taken care of? Are you certain that it has the banking issues taken care of?" Because they're used to having everything being prescribed. Our response is, "When it says that it no longer applies, it no longer applies, which means that yes the banking issue has been taken care of and yes the taxation issues have been taken care of." So instead of having a 60 or 70 page bill, you have just a sentence or two that gets the job done in an area that has been just a quagmire to try to get out of.
Seth Adler: Because the law is based on The Controlled Substances Act of 1970.
Cory Gardner: And then once it's not subject to The Controlled Substances Act of 1970-
Seth Adler: It's not law.
Cory Gardner: It's not law.
Seth Adler: So when there was talk about repeal and replace, you might remember that-
Cory Gardner: I remember very well.
Seth Adler: My line was we should repeal and replace The Controlled Substances Act and replace it with nothing of course.
Cory Gardner: And that's what ... So what we did here was to say, and I think it's important too to look at the politics of the place on this, because the politics of the place in the House are different than the Senate, and they were different before the election. They're certainly different after the election. As I'm trying to explain to people who want a solution hear, I said, "Look. The Senate is not in a place to pass a descheduling bill or to move forward with legalization. It's just not going to." Maybe the House could've done that before the election, maybe they can do it after the election, but it's never gonna get out of The Senate that way, so how can we have something that gets out of The Senate that allows maybe your Southern senators who may have a different constituency than you do in Oregon or Washington or Colorado to come up with a way that they can stand up and say, "Hey you know what? This is the right thing to do. I can be for this," and get beyond the filibuster majority, get above 60 votes, and make it happen.
Seth Adler: If your state hasn't done anything regarding cannabis, this law does nothing.
Cory Gardner: That's right. It's still illegal. Everything is the same as it always has been, and doing nothing is what a lot of members of Congress like, and so this bill does what many members like.
Seth Adler: So you mentioned it takes care of this, it takes care of that. You do have ... There is some verbiage on trafficking. It kind of relates to the section in The Controlled Substances Act, which is what 280E relates to, so if it no longer applies to The Controlled Substances Act, then 280E disappears essentially.
Cory Gardner: Disappears, no longer applies. Yeah, and so we have some language around section 420 of the law, which I think a lot of people understand where 420 came from. You know, in Colorado they had, I think the Department of Transportation had to change the mile marker 420. It kept getting stolen. It's now like 419.9 or something like that. But anyway, so that section of the statute is what this is from.
Seth Adler: Yeah. The one other thing though is banking. It doesn't explicitly state anything on banking.
Cory Gardner: Correct.
Seth Adler: And we did have fence in guidance, right? From treasury, released in accordance with the third Cole Memo, which was not rescinded, but that hasn't helped banking. What makes you think this kind of solves it even though considering everything we just said?
Cory Gardner: It's kind of the same principle what we just talked about, and so because it's no longer a subject of a 1970 drug control, drug substance control act, I mean all of a sudden it's no longer against the law.
Seth Adler: There is no law.
Cory Gardner: There is no law, right. So when it's no longer in violation of it, then you don't need anything else. So it's just like mowing a lawn, I mean mowing a lawn's not legally probably anywhere in the ... If you earn money from mowing the lawn, I doubt if there's a statute that says you can take that money to the bank, but it's the same thing now as this. You can take the money to the bank because it's no longer prescribed out of legal activities.
Seth Adler: Understood, and that is something that does teach good work ethic, mowing a lawn.
Cory Gardner: Mowing the lawn, that's right.
Seth Adler: Yeah, final three questions because-
Cory Gardner: I need to talk to my kids about that.
Seth Adler: There you go. Final ... How old are they?
Cory Gardner: One of them's old enough. Two are working their way, but all right, if she's listening, we need to have a conversation about that. But number two, we can talk about mowing the lawn.
Seth Adler: Final three questions because I'm getting the hook. I'll tell you what they are. I'll ask you them in order.
Cory Gardner: You bet.
Seth Adler: What's most surprised you in cannabis? What's most surprised you in life? And on the soundtrack of your life, one track, one song that's gotta be on there? So first things first, what's most surprised you in cannabis?
Cory Gardner: Oh man. I think just the business nature of it, you know? I mean this isn't some kind of a fly by night dude on the corner kind of thing. This is actually a real business that is structured that wants involvement, that wants to be regulated to the point that other businesses are. They actually want this to be brought out of whatever kind of head in the sand attitude and mainstream, so I think that's the thing that you have there.
Seth Adler: Even back in Colorado in the 1284 days, every business ... Okay, what is the law? How do I basically follow that to a T, and then exist in any other gray that there might be? This States Act eliminates the gray just to give it one more shot, one more poke.
Cory Gardner: Yeah, you got it. Eliminates the gray, you got it.
Seth Adler: That's it. What's most surprised you in life?
Cory Gardner: You know, I think just surprising me in life is just how ... What's the old saying about just showing up? The world is run by those who show up. You think about your mom or your dad saying that and you're just like, "Yeah, whatever mom," or dad or grandpa, and gosh, here's a place where if you're engaged in an issue, if you're at the table, you're gonna make things happen. So what surprises me isn't that that saying is true, what surprises me is how many people don't take advantage of it. The world really is run by those who show up, and people who aren't showing up could have huge influence and huge say if they just did it. So I guess it's a message for people to show up.
Seth Adler: Yeah. You mentioned the shutdown early on. Podcast line knows no time, but the government is shut down as we are speaking. You are the first Republican senator to say, "Okay, let's just reopen the thing please people. Let's get to work."
Cory Gardner: Yeah. Look, I've long opposed the shutdown approach. I don't think it should be used as a tool of trying to get this or that. I said that in 2013, 2014, and here again. Open the government, compromise, try to work to get what you want. Look, I think we all support border security, so get border security, but walk and chew gum at the same time.
Seth Adler: We can do more things.
Cory Gardner: It's maybe a challenge for some, but I think we can do it.
Seth Adler: We can do it. On the soundtrack of your life, one track, one song that's gotta be on there.
Cory Gardner: You know, there's a ... Don't make fun of me. There was a Phillip Phillips song. I think he was American Idol or whatever it was, I can't remember. But there's a song called Home he sang, and we used that on the campaign trail when I ran, and it just means a lot. Home, it's a special place for me where I live out in Eastern Colorado. Colorado's an incredible, beautiful place, but I think home may mean different things to different people, but it's a powerful idea.
Seth Adler: Absolutely.
Cory Gardner: I think that's what Colorado means to so many people.
Seth Adler: That's it.
Cory Gardner: Yeah.
Seth Adler: Senator Gardner, thank you so much.
Cory Gardner: Oh, starting to kick things. Thanks.
Seth Adler: Home is where the heart is, sir. Right?
Cory Gardner: You got it, you got it. Thanks for having me.
Seth Adler: And there you have Senator Cory Gardner. Very much appreciate his time, very much appreciate your time. Stay tuned.
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