Now that Massachusetts has joined the eight states that allow recreational marijuana sales and use, Senator Elizabeth "Trail of Tears" Warren has decided to hound FinCEN about updating its 2014 guidance to financial institutions who want to provide banking services to state-legal but federal-illegal marijuana businesses. Liz (and the eight other senators who also signed the letter) apparently believes that somehow--perhaps by waving a magic wand or reciting an incantation from the Book of Krell--FinCEN can "make it alright" for banks and credit unions to "bank" marijuana businesses. She should stop sampling the product.
Although FinCEN claims that it is "reviewing" Liz's letter, my guess is that FinCEN is reviewing it solely for the purpose of determining whether it might be better used as toilet paper or to house a joint of some smooth Colorado Blue Dream (The Mile High State having a 5-year jump on Massachusetts in perfecting smokables and edibles). Immediately following the issuance of the existing guidance in 2014, Senators Grassley and Feinstein lashed out publicly at FinCEN for their "guidance," following which coal-raking, FinCEN's director declared that the guidance had induced over 100 banks to violate federal criminal drug laws provide services to state-legal marijuana businesses, so that's it: problem solved; we're done here. I can't see FinCEN opening that can of worms, especially with the Anti-Warren about to occupy the White House and install Jeff ("Good People Don't Smoke Marijuana") Sessions as Attorney General. There is little current political upside in doing so, and much potential downside. Unless FinCEn starts scarfing down Hashies, I don't see any major change to the guidance coming as a result of Warren's request.
More important, as I discussed a couple of month's ago, the FinCEN guidance (and the US Department of Justice guidance on which it is based) states that state-legal marijuana businesses and the banks that serve them are engaged in violations of numerous federal criminal statutes. The guidance purports to provide banks "comfort" that they are no "likely" to be pursued by the federal government "at the present time" because the government has other enforcement priorities, but those priorities can change (and likely will change with the recent election results), and the guidance states that it is not a defense to prosecution. In other words, even if you follow the guidance, we reserve the right to pursue criminal action again st you and your directors, officers, and employees. Moreover, the guidance requires banks to undertake extensive and expensive (if done correctly) initial and ongoing due diligence, monitoring and reporting responsibilities that might easily be found by an unsympathetic bank regulator or US Justice Department attorney to have been breached.
Warren might have more appropriately addressed her letter to the federal bank and credit union regulators (Federal Reserve Board, FDIC, OCC, and NCUA), whose guidance might give banks a bit more comfort. Thus far, the bank regulators have mumbled about how they are "likely" to follow the FinCEN guidance. However, they've also admitted that the US Congress is the body where the solution rests. The NCUA, FRB, OCC and FDIC cannot change federal criminal laws nor (anymore than can FinCEN) give banks and credit unions any legally binding assurance that they won't be pursued criminally or through regulatory enforcement action if they choose to bank marijuana-related businesses. Thus, they cannot provide the solution.
In the end, the solution needs to come from Congress, where Senator Warren resides. Senator Warren and her cohorts might do more good for banks and credit unions who want to provide financial services to state-legal marijuana businesses by jumping on the legislative bandwagon that Colorado and Washington have been hauling for the last five years (with no success), such as co-sponsoring and helping to push in the Senate legislation like Colorado Rep. Ed Perlmutter's H.R. 2076, which has gone nowhere fast since being introduced a couple of years ago. Congress, not FinCEN, is where the solution lies. Useless publicity stunts are not going to cut it, unless your goal is to fool voters in your state into believing you are actually doing something useful, when you're just passing the buck and cleverly manipulating smoke and mirrors. If so, then you and your pals are doing a masterful job.