POT FLASHBACK

Did Drug Czar John Walters illegally campaign against a pro-marijuana
ballot initiative? Nevada's Secretary of State wants to know.

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.) http://www.mediacampaign.org/mg/

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."

Daniel Forbes is a freelance journalist who writes frequently on drug-policy issues. An archive of his work is available at The Media Awareness Project.