MPP provides additional information to the Nevada Secretary of State

January 22, 2003

RE: C02-50KG

Dear Ms. Bilyeu:

I was pleased to see that your office has asked John Walters, director of the White House Office of National Drug Control Policy, to respond to the complaint I sent to you on December 4, 2002. It will be nice to have this issue resolved.

I wanted to send this additional letter to convey two concerns I have about Mr. Walters' forthcoming reply. The first is related to Mr. Walters' likely characterization of his activities in the state. The second is related to the question of whether Mr. Walters is subject to state law.

With respect to Mr. Walters' characterization of his activities, I believe that he will claim that he was not advocating defeat of the initiative, but was merely educating the public about the dangers of legalizing marijuana. This belief about Mr. Walters' intentions was essentially confirmed by his office in an article in the Las Vegas Review-Journal on January 17. An ONDCP spokesperson said that Mr. Walters was in Nevada simply to "talk about the problem of drug abuse in America." He went so far as to say it would be "silly" for Mr. Walters to comply with state campaign finance laws.

Although I disagree with Mr. Walters' opinions, I do not have a problem with him expressing his views about marijuana publicly. I would never have filed my complaint with your office if he had limited his comments to the benefits and risks of marijuana. But he clearly traveled to Nevada not to educate, but to campaign. To support this claim, I have attached a document which demonstrates Mr. Walters fully intended to advocate defeat of Question 9, and while in Nevada directly encouraged voters to oppose the initiative in less than educational terms.

Of course, even if you agree that Mr. Walters was advocating defeat of the initiative, the question of whether he is subject to state law is not a simple one. Requiring federal officials or agencies to file reports with a state raises sovereign immunity concerns, and Mr. Walters may argue that he cannot be forced to file campaign finance reports with the state. You are obviously aware of this possibility, as you stated in a January 16 Reason Online article that if ONDCP can convincingly cite federal law that supercedes state law, "that may be the end of it." Given U.S. Supreme Court precedent, I would urge you not to end your inquiry at that point, because Mr. Walters' assertion would be incorrect.

According to the U.S. Supreme Court, the "controlling principle" in situations where federal employees or agencies may be subject to state regulation is that "any state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause." (See, Perez v. Campbell, 402 U.S. 637) This was interpreted in U.S. Postal Service v. City of Hollywood, Fla. (974 F.Supp. 1459) as requiring a test as to "whether a state or local government regulation intrudes or interferes with activities of the federal government." (Id., at 1465) The court in City of Hollywood added that examination of the regulation should be "limited to determining whether the impact on the government's activity is incidental or intrusive." (Ibid.)

Requiring a federal employee to comply with state campaign finance reporting requirements does not frustrate, intrude, or interfere with the activities of the federal government. Mr. Walters, or any other official, may campaign against an initiative without any limitations imposed by the state. If they choose to do so, however, they simply must report their expenditures to the state. Given that this information is probably already tracked by federal agencies in the normal course of business, providing the information to a state ' in compliance with the state's interest in monitoring campaign spending ' clearly seems more "incidental" than "intrusive." This is especially true since information about federal spending should be a matter of public record.

Finally, Mr. Walters, in order to justify his actions in the state, may cite the fact that under Title 21, Section 1703(b)(12) of the U.S. Code, he is directed to "take such actions as necessary to oppose any attempt to legalize the use of" marijuana. Even assuming that this gives the director the right to campaign against state initiatives under federal law (which we dispute), it does not mean that Mr. Walters is immune from the state requirement to submit campaign finance reports. As noted above, if the filing of these reports does not frustrate federal action, compliance can be required.

Please contact me if you have any follow-up questions about this information.

cc: Mr. John Walters, ONDCP Director