Publication Date

2014

Abstract

Although marijuana is illegal under federal law, twenty-three states have legalized some marijuana use. The state-legal marijuana industry is flourishing, but marijuana-related businesses report diffi- culty accessing banking services. Because financial institutions will not allow marijuana-related businesses to open accounts, the mari- juana industry largely operates on a cash-only basis-a situation that attracts thieves and tax cheats. This Article explores the root of the marijuana banking problem as well as possible solutions. It explains that although the United States' dual banking system comprises both federal- and state- chartered institutions, when it comes to marijuana banking, federal regulation is pervasive and controlling. Marijuana banking access cannot be solved by the states acting alone for two reasons. First, marijuana is illegal under federal law. Second, federal law enforcement and federal financial regulators have significant power to punish institutions that do not comply with federal law. Unless Congress acts to remove one or both of these barriers, most financial institutions will not provide services to the marijuana industry. But marijuana banking requires more than just congressional action. It requires that federal financial regulators set clear and achievable due diligence requirements for institutions with marijuana-business customers. As long as financial institutions risk federal punishment for any mari- juana business customer's misstep, institutions will not provide marijuana banking.

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