GAO Green-Lights White House Interference in Elections

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With two federal watchdog agencies freeing the
White House drug czar to overtly influence state ballot initiatives,
the Senate is poised to reauthorize this anti-democratic exercise
for the next five years – the wheels greased by a ten-year
total of $4 billion in taxpayer-funded advertising designed to sway
the votes of those who pay for it.

The General
Accounting Office recently declared the Bush administration’s $22-million
multimedia ad campaign touting new Medicare drug benefits to be
marred by “omissions and other weaknesses” though not downright
illegal. The GAO has also agreed to examine whether the administration’s
video news releases with fake reporters promoting the Medicare changes
violate laws against government “covert propaganda.”

But
in the flap over what Democrats charge is the administration using
public resources to heighten the president’s appeal, a recent GAO
ruling permitting outright electioneering by the White House Office
of National Drug Control Policy has escaped notice.

The
ONDCP reauthorization bill that has passed the House but stalled
in the Senate is an opportunity to unravel a contradictory tangle.
Congress needs to square the contradiction between ONDCP’s statutory
responsibility to advocate a partisan political view – that is,
to oppose state drug reform initiatives – versus the prohibition
on federal officials using public resources to influence the outcome
of an election.

The
need for congressional resolution is heightened since, echoing a
prior ruling by the U.S. Office of Special Counsel, the GAO has
granted the White House drug czar full license to try to influence
the vote on state ballot initiatives, amendments and referenda.
On March 10th, the GAO informed John P. Walters he can campaign
at will under ONDCP’s congressional mandate of “taking such actions
as necessary to oppose any attempt to legalize” drugs.

Compared
to Walters at least, Clinton drug czar Barry R. McCaffrey trod comparatively
lightly as several western states passed medical marijuana initiatives.
Despite fathering ONDCP’s media campaign – now slated for a
total value over ten years of some $4 billion – as a direct
response to those initiatives, McCaffrey did seem to recognize some
limit on his overt anti-initiative campaigning. As Walters himself
told the Chicago Tribune last year, “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.”

But
neither his predecessor’s shred of reticence nor his own rhetorical
appreciation of the limits on White House electioneering kept Walters
from vowing to the Wall Street Journal, “We’re going to fight
whether we win or lose in every state they [reformers] come in to
from now on.”

By
the GAO’s lights, Walters can use tax dollars to loose whatever
fictions he wishes upon the land since it saw no need “to examine
the accuracy” of an ONDCP pre-election letter to prosecutors nationwide
calling on them to oppose what the letter termed “campaigns to normalize
and ultimately legalize the use of marijuana.” In accompanying material,
ONDCP made reference to “state initiatives” and the need for prosecutors
to dispel the alleged myths that support their passage.

The
GAO decision came in reply to a complaint from Rep. Ron Paul (R-TX)
regarding ONDCP’s efforts in 2002 to sway voters in several states,
including Nevadans deciding on whether to regulate and distribute
marijuana.

The
ONDCP letter to the nation’s local prosecutors, written by deputy
director Scott Burns, asked them to “take a stand publicly” against
“well-financed and deceptive [legalization] campaigns.” Topped by
a picture of the White House and the bold heading: “Executive Office
of the President,” Burns’ letter no doubt attracted attention in
many a local district attorney’s office. An accompanying letter
from the then president of the National District Attorneys Association,
Dan M. Alsobrooks of Tennessee, urged his fellow prosecutors “to
consider ways that you can bring this message to your communities.”

The
Burns letter ran afoul, Rep. Paul asserted, of the federal prohibition
on spending funds on “publicity or propaganda.” Despite the common
pejorative connotation, propaganda, according to my dictionary,
means simply: “ideas, facts or allegations spread deliberately to
further one’s cause or to damage an opposing cause.”

But,
the GAO ruled, this prohibition did not apply since it concerns
only “legislation pending before Congress.” Nor does it affect “an
agency’s legitimate informational activities.” The GAO declared
further that Burns’s letter is not covered by any prohibition on
partisan activities “given that they were made in furtherance of
ONDCP’s statutory responsibilities.” Yet the term partisan is by
no means confined to donkeys and elephants. It means simply, that
same dictionary says: “a firm adherent to a party, faction, cause
or person.” The fierce political wrangle over drug policy is nothing
if not a partisan cause – on both sides of the issue.

As
to that complementary Office of Special Counsel ruling, in May 2003
it declared that since state ballot initiatives don’t elect individuals
to office and aren’t formally associated with a particular political
party, the normal Hatch Act restrictions on using an official position
for electioneering don’t apply to the drug czar when he travels
the country denouncing initiatives. This despite the law prohibiting
the use of “official authority or influence for the purpose of interfering
with or affecting the result of an election.”

In
fact, OSC itself referenced what it termed Walters’ “efforts to
defeat ballot initiatives seeking to legalize marijuana.” If that
doesn’t brand his efforts as partisan, words have no meaning. Twisting
logic further on its head, OSC stated that since initiatives result
in no one assuming office, they somehow aren’t elections – all the
thousands of people who travel to the polls to cast ballots notwithstanding.

OSC
was responding to a complaint from the Nevada ballot measure’s sponsor,
the D.C.-based advocacy group, the Marijuana Policy Project. It
complained, in part, about the three days Walters spent barnstorming
the state blasting the initiative with such statements as it would
help “feed the criminal organizations that are a dangerous threat
to democratic institutions in the Western Hemisphere.” (See below
on the huge ONDCP ad-buy that equated smoking pot with actually
killing firemen! – a group ineluctably linked to the war on terror.)

Walters’
anti-initiative campaign in Nevada even led the state’s attorney
general, Brian Sandoval, to declare him guilty of “excessive federal
intervention.” Sandoval added that the White House’s campaign was
“particularly disturbing because it sought to influence the outcome
of the Nevada election.”

But
Walters had Congress’s imprimatur to do what he pleased (fling five-dollar
bills from a helicopter perched over the polls?) to oppose legalization,
so Sandoval figured there was nothing he could do – not even force
Walters to file the campaign reports that would reveal how much
his Nevada jaunts had cost the nation’s taxpayers.

As
the line between publicly funded social marketing and electioneering
blurs, Congress should resolve the inherent contradiction between
laws against both propaganda and partisan political activity on
the one hand and, on the other, an agency’s statutory responsibilities.
It’s a knotty problem since the latter, said the GAO, “could include
the making of advocacy statements in opposition to legalization
efforts.”

Though
it’ll take concerted effort, this legislative Gordian knot should
be loosed as the question of federal interference with state ballot
questions isn’t fading in importance. Forget voters booting Grey
Davis from office in California when they wearied of his pallid
efforts, though the process was meant as a safeguard against malfeasance.
MPP plans on pushing three ballot measures this November: in Arkansas,
Montana and another, more modest attempt at marijuana regulation
and distribution in Nevada.

As
politicians of all stripes seek to duck such controversial issues
as gay marriage by declaring them up to the states to decide, does
the country really want the federal government spending tax money
running TV ads that, in the guise of modeling what it deems correct
behavior, can influence elections?

Consider
the drug czar’s 2003 Super Bowl ad that presented a young teenager
having her baby as the only possible outcome after reefer madness – not some wily boy – had left her pregnant. Her parents, the ad
intones, are soon to be “the youngest grandparents in town.” That
is, “There will be an addition to their family soon.” Joseph R.
Giganti, a spokesman for the American Life League, told me after
it aired, “Without question, there is a very strong but subtle pro-life
statement presented in this commercial.”

Certainly
buried in some past or future appropriations bill language can be
found requiring the Department of Health and Human Services to promote
healthy families. So what’s to prevent HHS from weighing in with
an ad on the preferability of children being raised by a mother
and a father just as voters ponder an amendment outlawing gay marriage?
It’s no longer a moot point given that Georgia voters will decide
whether to ban gay marriage there in November.

Of
course, the official posture would be that such an ad would have
no more to do with any marriage amendment than did the rash of anti-marijuana
ads that voters saw in the fall of 2002 have anything to do with
drug-policy initiatives. Yet ONDCP’s self-parodyingly extreme, pre-election
ads blamed pot for: some stoner idly shooting a friend or running
down a kid on a bicycle on up to a terrorist bombing a restaurant
or slaughtering a family of innocents – everything but kidnapping
the Lindbergh baby.

I
discuss the marked pre-election increase in the ads below. But consider
the ads’ attempt to smear pot-use with terrorism – a tactic
arguably redolent of fascism given that the White House used the
current embodiment of evil incarnate (bomb a restaurant, indeed!)
to try to turn elections. Then consider this White House line in
light of the address by ONDCP Deputy Director Mary Ann Solberg to
an anti-initiative strategy session at the Drug Enforcement Agency
office in Detroit in late August 2002 just as the election season
kicked into gear. As
I’ve previously disclosed
, according to the invitation printed
on DEA letterhead, the meeting would “provide insight on successful
strategies to combat legalization.” [sic] The invitation added that
participants would discuss how to “share their ideas and strategies
and possibly combine resources in combating” the initiatives.

One
participant, Judge Brian W. MacKenzie, a District Judge in Michigan’s
52nd District, told me that Solberg’s address to some 50 cops, judges,
prosecutors and private drug warriors focused almost entirely on
the new, nationwide anti-marijuana ad campaign ONDCP would launch
as voters started paying attention.

And
thus the ONDCP “Marijuana Initiative” was born. According to a University
of Pennsylvania study of the White House ads issued last December,
“weekly parent-targeted general market GRPs” – that is, gross rating
points measuring an ad campaign’s exposure – had fallen to just
about nothing in mid-August 2002, but then shot up sharply to as
high as the equivalent of four exposures per week in late October
just before Election Day. The measure then plunged to the equivalent
of under a half-exposure per week after Election Day. Fully half
of the ONDCP ad buy is aimed at “adult influencers,” otherwise known
as voters. An ONDCP 2002 pre-election memo stated its intent to
obtain a total value of $96 million in advertising during and just
after the election season, with a particular focus on marijuana.

(I
say: total value since Congress mandates all ONDCP ad buys
at fifty cents on the dollar – take it or leave it. This provision
is what led the networks and ONDCP to agree to substitute White
House-vetted, anti-drug scripts in sitcoms and dramas for ad time
the networks owed ONDCP, as I revealed in 2000.)

Though
all this social marketing is ostensibly supposed to keep kids from
getting into trouble with drugs, try pot once, and the White House
apparently deems you beyond hope – or at least evaluation.
The Penn study noted that, “For youth, analyses of Campaign effects
are limited to 12- to 18-year-olds who report never having tried
marijuana.” It seems the government doesn’t want to know if experience
trumps illusion once that single joint has passed those impressionable
adolescent lips. Perhaps the issue is moot since Penn has consistently
found little evidence that the ads do anything to keep kids off
drugs – and may actually increase marijuana initiation among
some subgroups of teens.

Not
that this failure affects appropriations levels. Passed by the House,
the bill reauthorizing ONDCP until 2008 awaits action by the Senate
Judiciary Committee. After declining to $150 million in FY 2003,
the House wants to boost spending back to prior levels and above,
calling for $195 million annually over the next two years and $210
million for each of the subsequent three years. With that 50-cent
on the dollar requirement, that’s more than $2 billion in drug-war
status quo reinforcement, on top of the first five year’s total
that also approached nearly $2 billion.

Alarmingly,
the bill’s original language would have allowed ONDCP to use the
ads to defeat initiatives or even congressional candidates that
opposed White House policies. Democrats succeeded in getting this
language excised in the House, so – pending Senate action and then
reconciliation of any House/Senate differences – the ads theoretically
won’t be permitted to delve into “express advocacy.” And, following
the principle dating to the 1920s that viewers have the right to
know by whom they’re being persuaded, language requiring the government
to identify itself as the sponsor of the ads has to be cemented
into the reauthorization. That’s also pending.

Yet
all the old dodges regarding the deliberately misinterpreted terms:
election, propaganda and partisan will still apply. And Congress
still needs to write final language defining ONDCP’s statutory responsibility
to interfere – or not – in state elections. Will that mandate still
trump all other legislation governing officials’ electioneering?

After
all, prior authorization bills sported the fig leaf of a prohibition
on the ONDCP ads being tied to elections or legislation. Never mind
that Barry McCaffrey, as documents that surfaced in a lawsuit brought
by California doctors indicate, initiated the whole taxpayer-funded
media campaign in direct response to passage of the first medical-use
initiatives in 1996. In a meeting he convened nine days later, McCaffrey,
other White House officials, representatives of the DEA, FBI, Justice,
HHS, Treasury and private drug warriors discussed the need for taxpayer-funded
propaganda to thwart potential initiatives in the other 48 states
and perhaps even roll back the two that had passed. And,
by lightning speed by Washington’s standards, the drug czar’s ad
campaign was born.

Now
the Senate is pondering reauthorizing both the media campaign and
ONDCP itself with few strictures on overt politicking. So the czar
and his entourage can continue traipsing the country at will swaying
the votes of those paying for his trip, the way paved by another
$2 billion in total ad time and space trumpeting – not the status
quo – but actually an ever-harsher war on drugs. As I’ll discuss
elsewhere.

That
fig leaf, recall, didn’t prevent the huge 2002 pre-election spike
in TV advertising equating pot use with terrorism. It didn’t stop
ONDCP deputy director Mary Ann Solberg from discussing those very
ads at an anti-initiative strategy session, her listeners serious
folks – many with badges and guns – with no time for non-utilitarian,
theoretical discourse. Nor did any other gossamer prohibitions prevent
the drug czar from making his first anti-initiative campaign swing
to Nevada a couple of weeks ago where he blasted the marijuana initiative
likely to grace Nevada’s ballot this November as “foolhardy,” “silly”
and “irresponsible.”

April
26, 2004

Daniel
Forbes [send him mail] has
testified before both the U.S. Senate and the House about his work.

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