Congressman Ron Paul's (R-TX) GAO complaint

Dear Mr. Walker:

On November 1, 2002, Scott Burns, Deputy Director for State and Local Affairs for the White House Drug Policy Office (commonly known as the Office of National Drug Control Policy or, simply, ONDCP), sent a letter to all local prosecutors in the United States. I am concerned that this letter may violate the congressional ban on spending funds on "publicity or propaganda." Accordingly, I request that that you investigate this activity.

The GAO has established that the "publicity or propaganda" provisions included in most appropriations bills apply to federal efforts to interfere in pending legislation, specifically efforts to inspire "grass roots" lobbying. The GAO has also determined that these provisions apply where the government has disseminated misleading information. It is possible that the letter by Mr. Burns may violate both of these interpretations of the "publicity or propaganda" ban.

Pending legislation and grass roots activity

The GAO's Principles of Federal Appropriations Law (GAO/OGC-91-5, July 1991) provides that "the [publicity and propaganda] statute prohibits appeals to members of the public suggesting that they in turn contact their elected representatives to indicate support of or opposition to pending legislation, thereby expressly or implicitly urging the legislators to vote in a particular manner." While the document refers primarily to the lobbying of Congress, I see no reason to infer that the same prohibition would not applyto the lobbying of state legislatures. [1] In fact, there may be an even greater justification for keeping the federal government out of state affairs.

The letter appears to be a direct attempt to affect legislation, primarily marijuana-related state ballot initiatives, but also other state laws related to marijuana. Mr. Burns wrote in the opening paragraph of his letter that, "this country is faced with a subtle but powerful threat to exacerbate the [nation's drug] problem: well-financed and deceptive campaigns to normalize and ultimately legalize the use of marijuana." He encouraged prosecutors to "take a stand" against these campaigns.

Moreover, Mr. Burns directly urged grass roots activity. He said in the letter, "The role you play as prosecutors is indispensable to our success in fighting the normalization of marijuana…You can work with your legislators to update local laws impeding marijuana prosecutions and treatment."

There is additional evidence that Mr. Burns was attempting to inspire grass roots activity to affect pending legislation. He included with his letter a "Summary of Counter Arguments to Questions Concerning Marijuana Legalization." As if this title is not enough to demonstrate that the document is intended to help prosecutors stave off possible legislation, there is a section specifically dedicated to "State initiatives." In this section, Mr. Burns again blames "well-funded and organized campaigns" for "contributing to [the] misperception that marijuana is harmless or may even have health benefits." He suggests that prosecutors place an emphasis on dispelling the "myths" that pervade policy discussions. [2]

This outreach by Mr. Burns is especially troubling because he appears to be not simply encouraging grass roots activity by the public, but is targeting a group of individuals who rely on ONDCP for financial support. Most, if not all, of the federal funds distributed to the states in support of local law enforcement are part of ONDCP's annual National Drug Control Budget. The ONDCP Director could, at his discretion, recommend an increase or decrease in this funding. This gives local prosecutors significant reason to please the White House office. Interestingly, the letter from Mr. Burns was sent under a cover letter from the President of the National District Attorneys Association (NDAA), who noted, "We have been asked to provided you with the attached open letter to America's prosecutors from [ONDCP]." (emphasis added) Obviously, NDAA, perhaps at least partially out of a sense of obligation, complied.

Dissemination of misleading information

The same issue of GAO's Principles of Federal Appropriations Law cited above also provides that "GAO has taken the position that the government should not disseminate misleading information," noting that "the Comptroller General has characterized [certain] publications as 'propaganda.'"

The material the GAO cites as an example of misleading information is a pamphlet with a pro-nuclear bias that urged readers to "Let your voice be heard." Interestingly, the GAO noted as evidence against the legality of the pamphlet the fact that it was distributed in the months preceding a nuclear safeguards initiative vote. The GAO concluded that the pamphlet was "oversimplified and misleading," characterized it as "propaganda," and found it "not suitable for distribution to anyone."

Similarly, the ONDCP letter had an anti-marijuana bias and urged readers to "take a stand publicly and tell Americans the truth." With respect to state ballot initiatives, the ONDCP letter was not just timed to coincide with them, but actually urged prosecutors to "take a stand" against them. Finally, and most importantly, the ONDCP material states as facts several matters on which there is credible evidence supporting a contrary point of view. For example:

ONDCP letter: "The truth is that marijuana and violence are linked."

Mr. Burns is clearly attempting to give the impression that marijuana causes violent behavior. While the statistic cited may be accurate, the implied conclusion is not necessarily true. In fact, both laboratory and field research suggest that marijuana has very little or no impact on aggressiveness. It has even been shown that marijuana may decrease aggressiveness. Furthermore, according to Mitch Earlywine, in Understanding Marijuana, "the drug's absence of an impact on hostility has led every major commission report to conclude that cannabis does not increase aggression."

ONDCP letter: "The truth is that we aren't imprisoning individuals for just 'smoking a joint.'"

This claim is rebutted in the paragraph intended to substantiate it. Mr. Burns states "the percentage of those in prison for marijuana possession as their most serious offense is less than half of one percent (0.46%)." In raw numbers, this is more than 6,000 individuals. This suggests that the truth is the exact opposite of what Mr. Burns claims. ONDCP letter: "The truth is that marijuana is a gateway drug for many people."

Independent reviews have repeatedly cast doubt on the "gateway theory." For example, the Institute of Medicine (IOM)'s 1999 report, "Marijuana and Medicine: Assessing the Science Base," commissioned by ONDCP, stated, "It does not appear to be a gateway drug to the extent that it is the cause or even the most significant predictor of serious drug abuse; that is, care must be taken not to attribute cause to association." Several other recent reviews of the data by impartial, government bodies have concluded that the evidence does not support any significant gateway effect. Among these are reviews by the British government's Advisory Council on the Misuse of Drugs (March, 2002) and the Canadian Senate Special Committee on Illegal Drugs (September, 2002). Most recently, a RAND study, conducted by Andrew Morral and colleagues and published in the December, 2002 issue of the journal Addiction, stated, "available evidence does not favor the marijuana gateway effect over the alternative hypothesis that marijuana and hard drug initiation are correlated because they are both influenced by individuals' heterogeneous liability to try drugs." The study specifically noted that the sort of association cited in Burns' letter "requires no marijuana gateway effect for its explanation."

ONDCP letter: "The truth is that marijuana is not a medicine, and no credible research suggests that it is."

The 1999 IOM report contradicts this claim, stating, "Nausea, appetite loss, pain, and anxiety are all afflictions of wasting, and all can be mitigated by marijuana." The IOM cites extensive data indicating that marijuana's active components, called cannabinoids, can have substantial therapeutic value, declaring, "The evidence is relatively strong for the treatment of pain and, intriguing although less well established, for movement disorders. … [T]he available evidence from animal and human studies indicates that cannabinoids can have a substantial analgesic effect." Contrary to ONDCP's claim, dozens of studies have documented the therapeutic benefits of marijuana and its components. (See, e.g., "Review of Therapeutic Effects" by Franjo Grotenhermen, M.D., in "Cannabis and Cannabinoids: Pharmacology, Toxicology and Therapeutic Potential," Haworth Press, 2002)

The GAO's clear position is that the federal government should not disseminate misleading information, especially when this information could influence the outcome of a state ballot initiative. Given the arguably misleading statements included in Mr. Burns' letter, it appears difficult to distinguish this case from the earlier case in which the material was found to constitute propaganda.

In conclusion, given the facts presented above, I am very concerned that that ONDCP's actions in sending the letter in question to local prosecutors violated the ban on using federal funds for "publicity or propaganda." I therefore hope that the GAO undertakes an investigation of ONCDP's actions.

[1] The wording of the "propaganda" provision in the Treasury and General Government Appropriations Act, 2002 leads to the same conclusion. While some older provisions include a specific reference to state legislation (e.g., District of Columbia Appropriations Act, 1990: "No part of this appropriation shall be used for publicity or propaganda purposes … designed to support or defeat legislation pending before Congress or any State legislature." ), the applicable provision in this case is more broadly worded: "No part of any appropriation contained in this or any other Act shall be used for publicity or propaganda purposes within the United States not heretofore authorized by the Congress."

[2] In the interest of providing the GAO with full information, this letter should address an additional issue with respect to the appropriateness of the letter by Mr. Burns. Title 21, Section 1703(b)(12) of the U.S. Code provides that the Director of ONDCP "shall…take such actions as necessary to oppose any attempt to legalize the use of a substance (in any form) that (A) is listed in schedule I of section 202 of the Controlled Substances Act." While marijuana certainly qualifies as a substance in that schedule, this provision of the code cannot be interpreted to supersede the relevant "publicity or propaganda" provision in the appropriations bill. Although the phrase "take such actions as necessary" is quite broad, there is no language in Section 1703 that indicates that it would take precedence over other specific provisions of the code. One cannot simply interpret that provision to give ONDCP carte blanche in its actions. To use an extreme example, it would clearly not be legal under federal law for ONDCP to bribe elected officials to vote against a marijuana legalization bill in a state. Moreover, Section 1703(b)(12) applies only to the Director of ONDCP. There is nothing in the description of the position of Deputy Director for State and Local Affairs that would lead one to believe that Mr. Burns should be coordinating a lobbying and propaganda campaign.