UPDATE: SAFE Banking Act on Cusp of Markup, Advancement in Senate Banking Committee

This article was updated Sept. 22.

The Secure and Fair Enforcement (SAFE) Banking Act of 2023 (S. 1323/H.R. 2891) will be moving forward in the U.S. Senate, according to the U.S. Senate Committee on Banking, Housing, and Urban Affairs. The committee confirmed Sept. 19 that the SAFE Banking Act is scheduled for in-person markup Sept. 27.

UPDATE: Since that confirmation on the date, the committee has calendared an executive session to consider a revised version of the legislation at 9:30 a.m. Sept. 27.

The scheduled review will be the first Senate action on the bill, which has passed seven times in the U.S. House since 2019, most recently in July 2022 as an amendment to the fiscal year 2023 National Defense Authorization Act (NDAA). The latest version of the bill was introduced April 26 in Congress by a group of bipartisan House and Senate lawmakers, including Sens. Jeff Merkley, D-Ore. and Steve Daines, R-Mont., and Reps. Dave Joyce, R-Ohio, and Earl Blumenauer, D-Ore. The bill currently has 42 co-sponsors in the Senate and 72 co-sponsors in the House.

According to a U.S. Senate document, "A markup is a meeting of the committee to debate and consider amendments to a measure under consideration. The markup determines whether the measure pending before a committee will be recommended to the full Senate, and whether it should be amended in any substantive way."

The bill would create protections for banks and credit unions to provide financial services to state-sanctioned cannabis businesses, which remain illegal under federal law. According to the bill text:

“Under the bill, a federal banking regulator may not penalize a depository institution for providing banking services to a state-sanctioned marijuana business. For example, regulators may not terminate or limit the deposit or share insurance of a depository institution solely because the institution provides financial services to a state-sanctioned marijuana business. The bill also prohibits a federal banking regulator from requesting or ordering a depository institution to terminate a customer account unless (1) the regulator has determined that the depository institution is engaging in an unsafe or unsound practice or is violating a law or regulation, and (2) that determination is not based primarily on reputation risk.”

The pending markup in the Senate Banking Committee comes more than four months after the body’s members welcomed six witnesses to testify on the SAFE Banking Act in early May. During that hearing, majority member Sen. Jack Reed, D-R.I., expressed concern over language in Section 10 of the bill: “Requirements for Deposit Account Termination Requests and Orders.”

Specifically, Reed said this section makes it more difficult for federal regulators to raise the alarm about bad actors who pose significant risks to banks without “tipping off” these actors before enforcement measures. From Reed’s perspective, as he said during the May 2023 hearing, Section 10 is too broad beyond the scope of the cannabis industry, “so it could allow permit schemes or all sorts of other interesting activity to go on without an effective response by the regulator.”

The specific language of this section was added to a previous version of the SAFE Banking Act in 2019 (then as Section 13) in an effort to appease Republicans who had concerns over how the legislation would impact lending to borrowers connected to other industries, such as gun manufacturing.

Despite 11 of 23 members on the Senate Banking Committee signed on as co-sponsors for the SAFE Banking Act of 2023—including eight Democrats and three Republicans—differing viewpoints on Section 10 have largely played a role in the delay for the pending markup. But now with indications that a full committee markup could come as soon as next week, the wrangle over Section 10 no longer appears to be a deal-breaker on moving forward.

Chances of Passing

Should the Senate Banking Committee advance the SAFE Banking Act, it would be a landmark victory for the legislation, which failed to make headway in the Senate under former Majority Leader Mitch McConnell, R-Ky., and then under current Majority Leader Chuck Schumer, D-N.Y., last Congress. Notably, Schumer showed a lack of interest in the incremental reform effort throughout 2021 and most of 2022 as he sponsored a broader legalization bill, the Cannabis Administration and Opportunity Act.

The million-dollar question is: If the committee recommends the bill to the Senate for a full vote, will the SAFE Banking Act have enough support to pass as standalone legislation without a filibuster?

As Cannabis Business Times Associate Editor Tony Lange wrote in July, "Federal cannabis banking reform now has public support from nine Republicans in the Senate, enough to avoid a possible filibuster on the floor of the chamber should Democrats come together. This GOP threshold for support comes with Sen. Susan Collins, R-Maine, adding her name as a co-sponsor July 13 to the Secure and Fair Enforcement (SAFE) Banking Act. Collins also co-sponsored the 2021 SAFE Banking Act."

According to a Sept. 14 article on NBCNews.com, "Both Republicans and Democrats on the committee support the bill and expressed confidence that it would have enough support to pass the Senate when it comes up for a full vote, a step Majority Leader Chuck Schumer, D-N.Y., vowed to take as soon as this fall."

“We’ve got enough votes to get it passed,” Daines told NBC News.

But now that the SAFE Banking Act is on the cusp of advancement in the Senate, the House is no longer under Democratic control, like it was when SAFE Banking passed seven times between 2019 and 2022. In 2023, U.S. House Speaker Kevin McCarthy, R-Calif., largely controls the reins in the lower chamber this Congress.