GAO Green-Lights White House Interference in Elections
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."
Daniel Forbes has testified before both the U.S. Senate and the House about his work.