BUYING INITIATIVES

A House committee is marking up a bill on May 22 that could strike at
the heart of ballot initiatives nationwide, significantly undermining
the efforts of drug policy reformers.

A little-known segment of a bill reauthorizing the mission of the
nation's anti-drug agency could give the drug czar authority to use
taxpayer dollars to pay for media campaigns directly targeting state
ballot measures.

If the bill passes, and agency chief John Walters uses public funds to
hammer initiatives the administration opposes, it would run counter to
the whole purpose of ballot initiatives, establish a disturbing
precedent for federal electioneering and hobble advocates pushing for
saner alternatives to the War on Drugs.

The Office of National Drug Control Policy already advertises
extensively, but is currently not allowed, at least not technically,
to campaign specific initiatives that would soften the punitive
federal stance on drugs on the airwaves.

While the drug czar's mission is to "take such actions as necessary to
oppose any attempt to legalize the use of a substance (in any form)"
that is a Schedule 1 drug such as marijuana, the portion of ONDCP law
that governs media prohibits advertising "for partisan political purposes."

The new changes would bring media under the former mission, prior
strictures on partisan political purposes be damned.

Moreover, the ONDCP would no longer have to identify itself as the
sponsor of the messages, reversing an FCC ruling and making the ads
potentially much more effective as propaganda tools.

That is, the legislation specifically exempts the media campaign from
the Communications Act of 1934, tossing aside the principle that, as
the FCC ruled in 2000 regarding anti-drug messages that the White
House basically paid TV networks to insert into shows, viewers "are
entitled to know by whom they are being persuaded."

ONDCP head John Walters could begin using whatever portion he sees fit
of over $2 billion in total media time and space to try to swing state
and local drug-reform ballot elections starting as early as this fall.
Should the reauthorization pass in its current form, Walters could
dish out public funds to oppose ballot measures on issues from medical
marijuana (already passed in nine states, eight by ballot initiatives)
to marijuana legalization -- a ballot measure Walters himself
campaigned against in Nevada last year.

The issue unites liberals and conservatives. Rep. Henry Waxman
(D-Calif.) finds the legislation worrisome. "The media campaign should
be used for its intended purpose in reducing demand for illegal drugs
among youth," he said. "It should not be used to influence elections
on ballot initiatives or candidates for public office, or to influence
the consideration of legislation.

Tim Lynch, director of the Cato Institute's Project on Criminal
Justice, agrees. "That ONDCP is trying to deprive voters and taxpayers
of knowledge of what they're doing is bizarre and disturbing," he
said. "Now the federal government will put its finger on the scale of
a political question.

And they're trying to hide that because if the public becomes aware,
it'll cause a real backlash."

Along with freeing the White House's hand, the reauthorization would
add a couple of cards to its current hand, since the reauthorization
boosts FY 2004's spending to $195 million, up from FY 2003's $150
million. That's followed by another $195 in FY 2005, and $210 million
slated for each of the following three years. The program's projected
five year cost now totals $1.02 billion, a nifty increase over the
program's initial five-year funding of $930 million.

That means ONDCP could run hundreds of millions of dollars of stealth
advertising to swing elections, using taxpayer-funded messages to sway
the votes of those who pay for them. "These new provisions are a
blatant attempt to... put the entire media campaign in [Walter's]
arsenal against the drug-reform movement," says Steve Fox, director of
government relations at the Marijuana Policy Project, the sponsor of
the Nevada marijuana legalization initiative.

House Committee on Government Reform press secretary David Marin, a
Republican staffer, insists the drug czar has long had the authority
to "use the media campaign to oppose the legalization of drugs." He
acknowledges that some might interpret the bill's language otherwise.
"Nothing in the language allows the media campaign to be politicized,"
he says.

Though one might imagine such a sea change in how the government seeks
to influence citizens' thinking would be pondered long and carefully,
in fact H.R. 2086 -- which charts the course for ONDCP's entire
operation, not just the media campaign -- was introduced May 14 and
voted out of the Criminal Justice subcommittee by voice vote the next
day. And why not, since it was co-sponsored by subcommittee chairman
Mark Souder (R-Ind.) along with the full Government Reform committee's
chairman, Tom Davis (R-Va.). One of Souder's claims to fame is the
Higher Education Act provision that rules out federal student loans
for any college student convicted of possessing even a single joint.

Regarding whether the proposed use of government funds to impact
initiatives is legal or not, as Gary D. Bass, executive director of
government watchdog OMB Watch, put it, "The bottom line is Congress
can do whatever it wants." Bass explained that initiatives and
referenda are, technically speaking, legislative activity, and federal
agencies and executive branch departments are normally prohibited from
using federal funds to influence them without legislation permitting
otherwise. H.R. 2086, of course, is just such legislation.

Bass could think of one real-world example of such legislation: the
use of federal funds, by statute, to both lobby and litigate on behalf
of the disabled.

But when citing the example of medical marijuana, Bass said, "I think
it's quite unusual in the context of an ideological point of view -- a
policy expressing the perspective of this administration. It would be
most unusual for Congress to authorize government money to advocate a
position one way or the other."

Having been made aware of the questionable provisions in the law, a
committee minority staffer said the Dems would probably introduce
amendments on May 22 addressing them; Rep. Henry Waxman (D-Calif.),
the Government Reform committee's ranking minority member, will also
likely join that effort.

With the Republicans controlling the committee 24 to 19 (with one
Independent), it remains to be seen if such an amendment stands a chance.

Whether a government agency can use public funds to directly weigh on
referenda and ballot initiatives should be a decision that Congress
deliberates openly and candidly.

When a back door is opened for an agency to quietly slip through and
challenge historical precedents on federal electioneering, someone has
to blow the whistle.

It's disturbing that the bill has gotten this far without a voice of
protest: This bill should be halted and discussed, and should not
breeze through the markup process.