On Tuesday voters in Columbia, Mo., rejected a decriminalization measure on marijuana by roughly 60 percent to 40 percent. The fact that the statute failed was hardly surprising; voters in other states defeated similar measures last year. What was unusual was the appearance of a high-ranking White House official in Columbia before the vote on the initiative, which would have allowed patients using medical marijuana to carry up to 35 grams of the drug with no penalty and make others caught carrying the same amount pay a municipal fine.
"I'm not here to tell anybody how to vote," Scott Burns told a local columnist during his daylong visit there last week. At an anti-initiative news conference organized by Columbia's Phoenix Programs rehabilitation center, he declared he was in town to "help those who have been caught up in the lie" that marijuana is not harmful. Burns, a George W. Bush appointee, is deputy director for state and local affairs in the Office of National Drug Control Policy (ONDCP).
Legalization activists charge that the White House was trying to influence the vote's outcome. Not surprisingly, a spokesman for the drug czar's office told me that Burns' visit, because it was "advocacy," was "part of the mission of the agency." Any allegations of impropriety about Burns' appearance were just part of an ongoing effort toward "silencing" the office, the spokesman added.
The problem is that the Bush administration claims to favor smaller bureaucracy, more local autonomy and decentralized control of government -- until states or local municipalities do something the White House doesn't like.
Burns is following the lead of his boss, ONDCP Director John Walters. Before the 2002 election in Nevada, Walters toured the state offering "information," as his spokesman puts it, about marijuana in an obvious attempt to influence a statewide referendum that would have legalized possession of up to 3 ounces of marijuana for adults. In the end the question failed by a 30 percent margin.
On television and in newspaper interviews, Walters repeatedly railed against the information being distributed in favor of the measure. He also insisted that he wasn't breaking election laws that forbid federal officials from involvement in certain election procedures.
But Walters hasn't been shy about taking credit when the measures came up short. "These failed initiatives represent the high-water mark of the drug legalization movement ... from now on, the tide turns our way," he said in November. (In addition to the failure of the Nevada referendum, voters defeated pro-legalization measures in Arizona, Ohio and South Dakota.)
Walters' actions have led the pro-legalization Marijuana Policy Project to file a federal complaint against him, alleging that he violated the Hatch Act, which bans the use of "official authority or influence for the purpose of interfering with or affecting the result of an election." Whether or not the complaint will fly is a tricky matter: The Hatch Act allows federal officials to express political opinions as long as they don't use their "official title while participating in political activity." Whether referenda constitute "political activity" under the law is also up for debate.
Burns, however, may be more clearly in violation than Walters. A week before election day last year, he wrote an open letter addressed to the nation's prosecutors, asking them to "take a stand publicly" and help fight the threat of "well-financed and deceptive campaigns" to legalize marijuana. (Though ballot initiatives in specific states were not mentioned, the intention and timing of the letter were unambiguous: Speak out when ballot initiatives come your way, it essentially said. "No drug matches the threat of marijuana," Burns wrote.) That led longtime drug-war opponent Rep. Ron Paul (R-Texas), a libertarian, to ask the General Accounting Office last week for an investigation. Others are also questioning Burns' actions. "This defiles the principles that define us as a nation," CATO Institute Vice President for Legal Affairs Roger Pilon told me.
Of course, meddling in state elections is not the sole providence of the Bush White House. House Republicans were incensed when Clinton administration officials campaigned against a National Rifle Association-supported 1999 state initiative that would have allowed the "concealed carry" of handguns. (The measure, which is found in state law in several states, eventually lost.)
But even if administration attorneys can prove that their way of influencing state ballot initiatives is legal, that doesn't make it tasteful or particularly healthy for a thriving democracy. And in Bush's case, drug decriminalization measures are only one of several areas in which the White House has dispatched deputies to squash state efforts with which it disagrees. Sometimes the hammer comes down even after an initiative has become law.
In 1994 Oregon voters passed the Death With Dignity Act, under which adult patients may receive a prescription of lethal drugs provided that two doctors agree that the patient has less than half a year to live and is capable of making a health-care decision. In 1997 state voters again passed the measure, the first of its kind nationwide and, according to the New England Journal of Medicine, 38 patients in the state took their own lives in 2002 with help from doctors.
But last April, declaring the Department of Justice's right to determine "legitimate medical practice," Attorney General John Ashcroft challenged the Oregon law in a directive. A federal judge in Portland, Ore., ruled against Ashcroft, who has appealed the decision. Along the same lines, federal agents continue to hound California pot users who say the drug is their only medical refuge, despite a 1996 initiative-passed law that legalized medical marijuana in the state.
The fact is, when lobbyists come calling with complaints about state ballot initiatives, the White House snaps to attention. In October the Food and Drug Administration wrote Gov. John Kitzhaber (D-Ore.) to warn against Measure 27, a state initiative that would have mandated labeling for foods containing genetically modified ingredients. Why? The law "would impermissibly interfere with manufacturers' ability to market their products on a nationwide basis," said the letter, which was signed by the FDA's deputy commissioner. (After facing opposition from industry-supported groups, the effort failed.)
I, for one, happen to hate the idea of mandatory labeling of genetically modified food, and I question the motives of marijuana-legalization advocates. Still, regardless of the issue, it's a disturbing trend to watch the White House handpick which state initiatives it chooses to get involved in -- especially when it shouldn't be meddling in them at all.
Eli Kintisch is a writer living in Washington, D.C.