In pot deal with Cuomo, the Legislature has the power

New York is poised to legalize recreational marijuana for people over 21, with lawmakers and Gov. Andrew Cuomo having finally reached a three-way agreement on what legislation will look like. Now that the dust has settled after three years of back and forth, lawmakers seem to have controlled the last leg of the negotiations. It’s a notable example of changing power dynamics in Albany with new Democratic supermajorities in the state Legislature and scandals dogging the governor.

For the past several years, Cuomo has said that legalization of marijuana would get done in the budget. And for the past two years, that failed, with Cuomo removing the language shortly before the budgets passed. He would say it was too heavy a lift, that a deal with lawmakers couldn’t be reached and that the support in the state Senate simply wasn’t there. Once marijuana legalization was absent from the budget, Cuomo effectively washed his hands of negotiations, leaving it up to lawmakers to figure out a deal among members. “He’d been paying lip service, but he hadn't really been doing it,” said one Democratic Albany insider who requested anonymity to talk candidly about the governor. “If Andrew Cuomo wanted to pass cannabis in 2019 or 2020, he probably could have. But he never really committed to it.”

The state Legislature has proposed legislation to legalize recreational marijuana since 2013, but has never been able to pass it as a standalone bill, first because of Republican control of the state Senate and more recently because lawmakers were just a few votes short. Now, the final deal – reached outside the budget process Cuomo controls – reflects far more of the original legislative proposal than what Cuomo proposed this year as part of his executive budget. While the agreement was three-way, many legislative priorities ultimately made it in over the governor’s plans. “Crystal and I held strong on the things that really matter to us, so it did become the question of, was he going to be willing to say yes or whether we were going to walk away,” state Sen. Liz Krueger, sponsor of the bill, told City & State. “I do think that a lesson here was if you're willing to play hardball for long enough, you can get more of what you wanted done.”

After calling marijuana a “gateway drug” as recently as 2014, Cuomo offered his first legalization proposal as part of his 2019 executive budget, marking the start of serious negotiations over legalization. His proposal had a number of key differences with the Legislature’s previously introduced Marijuana Regulation and Taxation Act, or MRTA. Perhaps the biggest difference was the use of tax revenue – Cuomo wanted to keep it flexible and under his control. Krueger and Assembly Majority Leader Crystal Peoples-Stokes wanted 50% of tax revenue set aside for community reinvestment grants. Even when the lawmakers introduced new versions of the bills to more closely mirror Cuomo’s regulatory structure with the creation of an Office of Cannabis Management, the underlying differences remained.

In 2019, Cuomo expressed optimism about getting it done in the budget, but ultimately removed it before the budget passed because he and the Legislature hadn’t reached a deal. Although he said he hoped lawmakers would get it done that year, he expressed doubt. Later that year, Cuomo effectively laid the failures at the feet of the state Senate for not drumming up enough support. “I don’t think it is feasible at this point," Cuomo said in June 2019. "I don’t think it matters how much I push in 11 days. I think when the Senate says they don’t have the votes, I take them at their word." At the time, Krueger told The Buffalo News that “full-throated support” from the governor would help convince the last wayward senators needed for pushing legalization over the finish line. That support didn’t come.

Cuomo had a similar tune last year: Get it done in the budget, or it won’t get passed. He once again dropped it from the budget, and left it in the hands of the Legislature. Once again, the bill didn’t pass. But the dynamics changed this year with new supermajorities in both chambers of the state Legislature. Multiple scandals facing the governor further weakened Cuomo’s negotiating position. “Andrew Cuomo is a guy who doesn't like to compromise,” said the Albany insider. “So the mere fact that anybody's compromising is automatically different than the previous 10 years he's been governor.” After years of being told to figure it out themselves, the Legislature was finally in a position to do that. 

Many legislative priorities made it into the deal, which turned out incredibly similar to the version of the MRTA introduced earlier this year used as the base for the talks. A large percentage of tax revenue will be set aside for community reinvestment grants. A social equity plan and incubator program will be established to help people harmed by marijuana enforcement and others enter the new legal market, and a goal was set for 50% of licenses to go to social and economic equity applicants.

Legislative leaders would be able to appoint two of the five members of the Cannabis Control Board, which will set industry regulations, and the state Senate would confirm a chairperson appointed by the governor. Cuomo had proposed that he would have unilateral control over all appointments with no state Senate confirmation. The Office of Cannabis Management would also include a Cannabis Advisory Board, which in part will administer the community grants, and a chief equity officer, who would ensure that the social equity plan actually meets its goals. Neither were included in the governor’s proposal. “It comes down to the fact that there were so many problematic aspects to (Cuomo’s) proposal that I'm really grateful and really proud of Sen. Krueger and Majority Leader Peoples-Stokes for being clear and holding the line on so many of these provisions,” said Melissa Moore, state director of the Drug Policy Alliance. “In the final negotiations and the final conversations, they didn't blink.”

Cuomo had proposed allowing adults to carry up to 1 ounce of pot. The final deal reflects lawmakers’ proposal of 3 ounces. Cuomo never proposed home cultivation, and his most recent proposal did not include provisions for lounge-like locations to use marijuana. The final deal includes both. Lawmakers and advocates pushed for automatic expungement for past marijuana offenses that would no longer be illegal and lesser penalties than the governor was proposing for future crimes. Their language made it into the final deal. “When we started this year, we had a bill that was heavily, ‘Here's the make or break issues,’” Krueger said. “‘If you can live with us on these, we've given you the things you asked for,’ and (the governor) was much more open to getting it done than in previous years.”

Cuomo’s willingness to agree to a deal that wasn’t based around his own proposal struck some observers as significant, and indicative of Cuomo’s weakening position amid his many scandals and a unified Legislature. “Every year he's been an absolute roadblock, a very aggressive roadblock, to legalization,” said Jawanza Williams, director of organizing of the progressive advocacy group VOCAL-NY. “This year I think the reason why he wasn't able to mount that kind of fight was because so many eyes were on the governor.” Williams said he also saw it as an example of the Legislature asserting its power as an equal branch of government. “I think that what we're seeing here, in this language, is that the Legislature – and therefore by proxy the people who are fighting for marijuana justice – we were able to challenge Gov. Cuomo’s power,” Williams said.

Dutchess County Executive Marc Molinaro, president of the New York State County Executives Association and former Republican gubernatorial candidate, said the pot deal exemplifies changing power dynamics in Albany. “The Legislature is asserting a role on a public policy matter that they have every right to assert,” Molinaro said. “This bill does seem to shift the dynamic a little bit, and I give (the Legislature) credit for that.” He noted that those power dynamics have shifted rapidly in recent weeks, let alone from where they stood several years ago when Cuomo first said he wanted to get legalization done. “This particular bill wasn't driven by the administration, and the governor has done a remarkably good job over the last 13 years of leveraging people against one another,” Molinaro said.

The final deal did involve some compromises, including provisions to increase the number of drug recognition officers to address impaired driving and the creation of a study on devices to detect marijiana impairment on the road, which were parts of the governor’s proposal. The tax structure is not what lawmakers or the governor originally proposed, and only 40% of tax revenue will go into the community grants reinvestment fund as opposed to 50%. 

But Peoples-Stokes said she was still pleased with the outcome, which so closely mirrored the legislation she has long been fighting for. “To be honest with you, I started at 50 (percent) just because you have to negotiate,” Peoples-Stokes told City & State. “Forty percent is good. I think it will be a tremendous advantage to the multiple numbers of people who have been impacted for multiple generations.” The very fact that the percentage structure made it in, as opposed to Cuomo’s proposal made for the first time this year to invest the set amount of $100 million, is seen as a victory by advocates. “The sponsors in our campaign have always been calling for significant reinvestment in communities, and I think at the level of 40% establishes an absolutely watershed precedent,” Moore said. She added that the impaired driving study as well would be handled by a university, an improvement over allowing law enforcement in part administering a pilot program as in the governor’s version.

Although the governor seemed to have folded in some significant and uncharacteristic ways on marijuana legalization, his administration would not comment on the role he ultimately had in the negotiations, nor the amount of influence he was able to exert over the talks. Cuomo said in a statement announcing the deal that he plans to sign the legislation once it passes. “It was a three-way agreement that was the result of three years of negotiation,” said Rich Azzopardi, senior adviser to the governor. “We’re not focused on palace intrigue during the pandemic.”