MPP's Hatch Act complaint
13. What are the actions or events that you are reporting to the OSC?
We are alleging that Mr. Walters violated the following provision of the Hatch Act:
U.S. Code, Title 5 — GOVERNMENT ORGANIZATION AND EMPLOYEES
Sec. 7323. — Political activity authorized; prohibitions
(a) Subject to the provisions of subsection (b), an employee may take an active part in political management or in political campaigns, except an employee may not —
(1) use his official authority or influence for the purpose of interfering with or affecting the result of an election.
The Code of Federal Regulations (5 C.F.R. 734.302) further details the prohibition above by noting that the activities prohibited by paragraph (1) include, but are not limited to: "Using his or her official title while participating in political activity."
Mr. Walters violated the provisions of the Hatch Act (specifically, 5 U.S.C. 7323(a)(1)) by using his official authority and influence for the purpose of affecting the result of an election. On October 10-11, 2002, he traveled to Nevada for the primary purpose of campaigning against a ballot initiative, doing so not as John Walters, private citizen, but as John Walters, Director of the Office of National Drug Control Policy (a.k.a., the "Drug Czar"). Moreover, he was fully aware that his presence in the state — as the "Drug Czar" — would affect the result of the election.
The Office of Special Counsel should also examine whether Mr. Walters used his authority and influence to help steer a $3 million SAMHSA grant to the Nevada governor's office on September 26, 2002, during the time when Mr. Walters was attempting to build opposition to the initiative.
14. What facts support the statements made in Question 13?
There are incontrovertible facts supporting the statements made in Question 13. First of all, it is beyond question that John Walters attempted to affect the outcome of an election. On October 10, Mr. Walters traveled to Las Vegas, Nevada and appeared on a series of television news programs in order to discourage voters from supporting Question 9, which proposed amending the state constitution by making the possession of three ounces or less of marijuana legal for adults. He used these appearances to convey messages such as "marijuana is a dangerous drug," "this is not your father's marijuana," (implying it is stronger and, therefore, more harmful) and "more teenagers are admitted for marijuana dependence than for all other illegal drugs combined."
On October 10, Mr. Walters also appeared before an "appreciative crowd of local politicians, police and Question 9 opponents" at a drug treatment center in downtown Las Vegas (see, Las Vegas Review-Journal, October 11, 2002, attached). He expressed his opposition to Question 9 by saying, "[Marijuana] causes many other harms...No community is better off with more drugs."
That evening and the following day, October 11, Mr. Walters appeared at events in Reno, Nevada, at which he continued to campaign against Question 9. Before a gathering of reporters and law enforcement officials, Mr. Walters called Question 9 a "con," and said that it was "insulting to the voters of the state." Mr. Walters made no attempt to hide the fact that he was in Nevada to campaign against Question 9. The Las Vegas Review-Journal (October 11, 2002) wrote the following about one of his appearances in the state: "Walters made this promise to the Question 9 opponents who have turned to him for help: 'We will stand with you. My office intends to challenge this ballot initiative here and in every state where this occurs.'"
Most interestingly, Mr. Walters seemed to understand that there was something not quite kosher about his actions in Nevada. He said the following in an interview in the Chicago Tribune (October 23, 2002): "I made the decision to go into the states I went into reluctantly. 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 I was contacted repeatedly by people in these states who are working in prevention who said they are being drowned out by misrepresentations by people who have a lot of money and who have millions of dollars to spend on these campaigns."
As one can see from the quote above, Mr. Walters understands the power and influence that his position — and his title — commands, as well as the fact that he has the ability to affect the results of an election. These people to whom he refers above clearly contacted him repeatedly because they needed him to turn the tide in the "campaign."
It is very important to note that Mr. Walters has completely abandoned any hesitation he may have had about violating the provisions of the Hatch Act. As the election season came to a close, Mr. Walters pledged to behave similarly in the future. "We're in this for the long haul," he said in the Wall Street Journal (November 4, 2002). "We're going to fight, whether we win or lose, in every state that [proponents of drug reform initiatives] come into from now on."
Having established beyond any reasonable doubt that Mr. Walters intended to affect the results of the election, the only question that remains is whether he used his "official authority and influence" to do so. While determining the meaning of "authority" and "influence" might be a difficult task in certain situations, it is a relatively simple task here because of the provisions included in the Code of Federal Regulations. The Code of Federal Regulations (5 C.F.R. 734.302(b)(1)) explains that an example of using one's official authority or influence is using one's "official title while participating in political activity." [1]
Throughout his Nevada trip in October, Mr. Walters appeared as either the Director of the Office of National Drug Control Policy or as the "Drug Czar." For example, in each of his three live television appearances, he was either introduced with one of these titles or one of the titles appeared on screen. [2] In none of these situations did he correct the interviewer by saying something like, "I am here today simply as John Walters, private citizen." Similarly, the title, "Drug Czar," appeared throughout the print news coverage.
Walters used the authority and influence of his official title to its full advantage. No one knows better than John Walters that people listen to his opinion because he is the "Drug Czar." When he talks about the dangers of drugs as the "Drug Czar," people accept what he says as the truth. Therefore, when he publicly called Question 9 a "con," he knew exactly how this would affect the election. This is precisely the kind of behavior that the Hatch Act was intended to prohibit.
Beyond the use of his official title, which — on its own — is sufficient evidence to prove that Mr. Walters violated Section 7323 of the Act, the Office of Special Counsel should also investigate whether Mr. Walters used his authority to affect the Nevada election by steering a $3 million Substance Abuse and Mental Health Services Administration (SAMHSA) grant to the governor's office in Nevada. SAMHSA, which relies on Mr. Walters to advocate for its drug-related budget funding, awarded this large grant on September 26, 2002, during the time when Mr. Walters was attempting to build opposition to the initiative. (Coincidentally, only two other states were awarded large SAMHSA grants at that time — Michigan and Ohio. The governors in each of these states worked with ONDCP to defeat drug treatment ballot initiatives.)
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In the interest of providing the Office of Special Counsel with full information, this complaint should address one final issue with respect to the appropriateness of the Director's activities in Nevada. 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 provisions of the Hatch Act. 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 the Director carte blanche in his actions. To use an extreme example, it would clearly not be legal under federal law for the Director of ONDCP to bribe elected officials to vote against a marijuana legalization bill in a state.
15. What actions would you like OSC to take in this matter (i.e., what remedy are you asking for)?
Because of Mr. Walters' deliberate disregard for the provisions of the Hatch Act, and because he has acknowledged that he intends to continue to violate the provisions of the Act "from now on," we solemnly urge the Office of Special Counsel to remove Mr. Walters from his position as Director of the Office of National Drug Control Policy. Given the disrespect for the law that Mr. Walters has demonstrated, we feel that disbarment from future federal employment would also be an appropriate remedy.
[1] While Mr. Walters may claim that he did not use his official title in "political activity" (since "political activity" is defined in this part of the C.F.R. as "an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group."), paragraph (a)(1) clearly applies to "elections," not just "political activity." The C.F.R. uses the term "election" primarily in the context of "non-partisan elections." (see, 5 C.F.R. 734.101) Moreover, the C.F.R. also refers to situations in which an employee is "politically active" in connection with a question which is not specifically identified with a political party. (see, 5 C.F.R. 734.203(b)) Finally, it is important to note that the C.F.R. says that activities prohibited "include, but are not limited to" those that are mentioned. (5 C.F.R. 734.302(b)) Any rational reading of the regulations, therefore, would lead to the conclusion that employees are prohibited from using their official titles in both partisan and non-partisan circumstances.
[2] On KVBC, Mr. Walters was introduced as "the nation's Drug Czar." On KTNV, Walters was called the national spokesperson against drug use, and "Office Nat'l Drug Control" appeared below his name on the bottom of the screen. On the Face to Face program on LV1, Mr. Walters was introduced as the "Chief of the Office of National Drug Control Policy" and as the "Drug Czar."
