NEW YORK (MainStreet) On Friday afternoon, the Obama administration released a roadmap for banks doing business with marijuana sellers. These guidelines will help banks to provide services for dispensaries in states that have legalized marijuana without breaking federal law.
So far two states have approved the sale and use of recreational marijuana, Colorado and Washington, but the drug remains illegal under federal law. This has created a very real problem for banks and businesses since even though the local head shop might be legal in Boulder, in the eyes of the federal government it's a criminal enterprise along with any bank that takes its money.
This has led to a growing industry in both states that is stuck operating cash-only, a situation that creates very real regulatory, criminal and tax related issues.
"It's become apparent that as they're trying to say, 'We need these businesses to be regulated and acting correctly,' the banking issue stands out like a sore thumb," said Jeff Gard, a partner at the Gard & Bond law firm who specializes in marijuana law. "And the reason is that even though these businesses may be acting in full compliance with local laws, they can't actually bank because the banking industry has not unreasonable concerns."
Laws such as the Bank Secrecy Act and the money laundering statutes make banking for drug dealers a potentially serious felony. The purpose is to push dealers to the fringes and make it harder for them to use clean money, but these laws have also created a unique situation as more and more states pass local drug laws in conflict with federal ones. Banks want to avoid federal issues of criminal conspiracy and financial crimes, so they refuse to do business with legal, local dealers.
Friday's memo is an attempt to address that. The document sets forth the Justice Department's priorities with regards to marijuana enforcement, specifically what kinds of businesses and issues it will target moving forward. Correspondingly, everyone else will fly under the radar, and banks will know whom to do business with and whom to avoid.
Although the memo, and a partner guidance from the treasury department, go into some detail, the main thrust of both focuses on good faith. Businesses and bankers that make a good faith effort to comply with local law will be ignored, those who don't could face prosecution.
Although Treasury officials describe this as a way to move the marijuana industry out of the shadows, Gard remains skeptical.
"It [the guidance] starts off with, 'Hey businesses, here's who were going to go after.' Then it says, 'Hey banks, here are the marijuana businesses that we're going to go after, you don't want to be associated with them,'" Gard said. "But I think banks are inherently conservative institutions when it comes to these kind of issues. I don't think that they are going to change their policies based on this memorandum."
Gard pointed out that these memos only offer guidelines for federal priorities. They don't make banking with marijuana dispensaries legal or create an official safe harbor because no executive agency has the authority to do so. Only Congress can change decriminalize an issue.
Instead these memos announce where the Departments of Justice and Treasury will put their resources. Federal law enforcement has certain priorities, and according to Friday's guidelines prosecuting locally legal activity isn't on that list.
It's unlikely, though, that banks will take even the small risk of serious criminal prosecution off paper assurances that the government will turn a blind eye, Gard said. (It's important to note the difference between criminal prosecution by the Department of Justice and civil suits brought by the Securities and Exchange Commission: the former can lead to jail time for executives, the latter involves fines paid out of company coffers.)
Instead, this might be an effort to get movement going in Congress. Whether or not it actually inspires any banks to open accounts for local marijuana dealers, it signals that the Obama administration supports returning this issue to the states.
"If Obama asks, Congress says no," Gard said. "If banks ask, I think Congress might say yes. And I think that's really what this memorandum is designed to do, to provide a sense that if you do this we will support you."
"My hope," he added, "is that the banks will see this as an opportunity to make their own luck and put their lobbying efforts and legislative dollars towards this idea. And that's what the purpose of this memo is, I think, more than anything."
Written for MainStreet by Eric Reed, a freelance journalist who writes frequently on the subjects of career and travel. You can read more of his work at his website www.wanderinglawyer.com.