Despite House approval of a $1.1 trillion government spending bill that includes a provision blocking the District's marijuana legalization ballot initiative, advocates say that they've still got cards to play to implement the measure approved by 70 percent of D.C. voters on Nov. 4.
The rider tucked into the 1,600-page spending bill prohibits the city from using any funds to "enact any law, rule or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance." That has opened up two loopholes, say advocates for the measure.
First, the word "enact." Earlier this week, D.C. Del. Eleanor Holmes Norton said that Initiative 71 — which would allow residents to possess up to two ounce of marijuana and grow up to six plants in their homes — was enacted upon its approval by voters, effectively nullifying the impact of the congressional rider.
"When the initiative was passed, it was already enacted. Therefore, there is nothing further for the District to do. In that case, Initiative 71… could go into effect," she said earlier this week.
Norton's interpretation has picked up adherents, including Adam Eidinger, chair of the D.C. Cannabis Campaign, which worked to place marijuana legalization on the ballot.
"I can't sit here and tell you they overturned our initiative. They didn't do that," said Eidinger on WAMU 88.5's The Politics Hour on Friday. "They are preventing us from passing future legislation such as tax and regulate, which is another way of saying stores that sell marijuana."
Opponents of the legalization initiative disagree, saying that the measure will only be fully enacted after it makes its way through the required 30-day congressional review period. Prior to the approval of the spending bill, D.C. Council Chairman Phil Mendelson said he would transit the measure to Capitol Hill in January.
Another issue is the prohibition on the use of funds to implement the initiative. While some city officials say that such a measure would tie their hands, the D.C. Appleseed Center for Law and Justice, a local think tank and advocacy group, said there is a way around it — use money left over from past fiscal years to pay to implement the initiative.
"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," said the organization on Friday.
A similar approach was used last year when the federal government shut down: While D.C. was prevented from using funds from that fiscal year to remain open, it simply used $144 million from a reserve fund to keep the city's government operating during the shutdown.
Despite both those apparent loopholes, the advocates say that the incoming D.C. Council and Mayor-elect Muriel Bowser will have to take the next step of sending the initiative to the Hill for the review period and preparing for its implementation.
That could be determined by how the D.C. attorney general interprets the rider and its impact on the initiative. According to a spokesman, the attorney general's office is currently reviewing the measure.
"I hope that's the next step: We send it to the Hill, we prepare for implementation, and if it were me, to be on the safe side, I would make sure that any dollars that got spent sending it to the Hill and preparing it for implementation... did not come out of fiscal  dollars," said Walter Smith, executive director of D.C. Appleseed.
"I certainly think we shouldn't step back. I think we should say, 'OK, we've read what you've written, we've read the law, we're about to comply with it. And that law does not preclude us taking the next steps to enforce the will of the people. And I think our elected representatives should be about the business of doing that," he added.
Speaking on The Politics Hour, Norton defiantly insisted that the 115,000 D.C. residents who voted in favor of Initiative 71 should not assume that they have been beaten by Congress.
"It's time to declare victory until they defeat us," she said.