Derided by the White House as "nothing more than a cheap political stunt," marijuana advocates' attempt to hold Office of National Drug Control Policy head John P. Walters' feet to the fire for his overt, taxpayer-funded political campaigning against drug-reform state ballot initiatives bore some small fruit this week.
Responding to a formal complaint from backers of the Nevada marijuana legalization measure that received 39 percent of the vote in November, Nevada Secretary of State Dean Heller formally charged the nation's drug czar to issue "a written response to the complaint" by January 27th.
The complaint against Walters was filed in early December by the Marijuana Policy Project (MPP), a Washington, D.C.-based nonprofit that supported the initiative. It contends that Walters was in violation of state election law that he "file a statutorily-required Report of Campaign Contributions and Expenses" after the drug czar and a score of ONDCP aides visited Nevada last July and October specifically to denounce the ballot initiative. Steve Fox, MPP's director of government relations, declares "this is kind of historic since I don't know that any state has previously asked a federal official to respond to the requirement that they file campaign finance reports." He says ONDCP tried to laugh it off, "but Nevada's secretary of state said it's not a crock."
ONDCP declined comment on Nevada's request, which was issued over the signature of Susan Bilyeu, the state's Deputy Secretary for Elections.
In its complaint, MPP also takes issue with the White House's near-ubiquitous anti-drug television ad campaign. A series of ONDCP ads that first aired during September links domestic marijuana consumption with foreign terror. During the fall election season (and on in to December), the White House funded some $48 million nationally in anti-marijuana ads. (Click here to access the ONDCP's ad gallery.)
MPP charges that ONDCP ran afoul of state law by airing these ads in Nevada but not reporting the expenditure to the state. The law in question reads: "Expenditures made within the state or made elsewhere but for use within the state, including expenditures made outside the state for printing, television and radio broadcasting, must be included in the report." In its complaint, MPP states, "it is for you to investigate whether the vast number of commercials aired by Mr. Walters and ONDCP should be considered part of the effort to defeat" the initiative.
However, Nevada is not demanding that Walters account for the ads. While acknowledging that the commercials may be considered a campaign expenditure, Nevada's Susan Bilyeu says that at this point, "the sole legal issue is whether Walters is subject to our legal jurisdiction."
Nevada's request for a response from Walter's notes that "the complaint alleges you were in the State of Nevada on a couple of occasions advocating the defeat of [the initiative]." If that's all it takes to find against Walters, he's a dead duck. The law governing disclosure of "contributions received" applies to, "every person or group of persons organized formally or informally who advocates the passage or defeat of a question."
Walter's advocacy against the measure while in Nevada is a matter of public record. During his three days traveling around the state, Walters made a series of media appearances warning that the initiative's passage would lead to Nevada becoming "a center for drug tourism." And he said the initiative would help "feed the criminal organizations that are a dangerous threat to democratic institutions in the Western Hemisphere." On Election Day itself, The Wall Street Journal published his statement that, "we're going to fight whether we win or lose in every state they [reformers] come in to from now on."
There's evidence that Walters knew he was skating on thin ice by making such statements. He told the Chicago Tribune in October: "I certainly understand the dangers of federal officials, a White House official, coming to a state and talking about a state ballot issue. We didn't use to do this."
As to Walters' prospective defense, Bruce Mirken, a spokesperson for MPP, says, "he never denied his purpose was to oppose the initiatives. If he wants to play word games about it, let him." MPP attorney Steve Fox was less sanguine, saying, "if he says he wasn't advocating defeat, we'll see what Nevada's perjury statutes say."
The state fine for noncompliance for the reporting requirement is only $5,000. Says Mirken, "while the fine is not huge, what's more important is if Nevada concludes that our complaint is valid, that Walters broke the law, is now caught and held to account."
In the midst of a hard-fought political campaign, Walters had a good strategic reason not to register with the state as seeking to influence the election. Says Kevin Zeese, president of Common Sense for Drug Policy, "should the federal government be seen as trying to influence the outcome, that would have been a real issue in the campaign. Vast portions of the state are federal land, and people don't particularly like the federal government in Nevada." MPP's Fox suggests, "he didn't file because he doesn't want people to know how many tax dollars he wasted in the campaign against the initiative."
State Assemblywoman Chris Giunchigliani (D-Clark County), who advised MPP, notes Nevadans' emphasis on states' rights, embodied in the saying: "Independent like Nevada."
ONDCP's response to Nevada is the next chapter in what marijuana proponents hope will be an enlightening saga. Deputy Secretary Bilyeu indicates that her office has spoken to ONDCP, and that the drug czar's office intends to reply. She notes, however, "it's an open question if he is subject to state law or not." If ONDCP can convincingly cite federal law that supercedes state law, Bilyeu thinks "that may be the end of it." Should ONDCP's reply not satisfy, her office will seek guidance from the state attorney general.
No matter the outcome in Nevada, MPP's Mirken concludes, "hopefully it will get them to obey the law, or at least promote an honest discussion of what federal officials can do with taxpayer money to conduct a political campaign."