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special to the national law journal Federal “drug czar” John P. Walters campaigned against a Nevada ballot proposal to legalize possession of up to three ounces of marijuana, but he refuses on constitutional grounds to file a campaign spending report. Nevada officials aren’t happy about it. “It is unfortunate that a representative of the federal government substantially intervened in a manner [sic] that was clearly a State of Nevada issue,” said a recent legal opinion signed by state Attorney General Brian Sandoval and filed with the Nevada secretary of state’s office. “The excessive federal intervention that was exhibited in this instance is particularly disturbing because it sought to influence the outcome of a Nevada election,” the opinion stated. There’s not much Nevada can do about it, the opinion said. Special Assistant Attorney General Jonathan L. Andrews wrote that it is “extremely likely” the courts would find Walters immune from compliance with state law. The opinion cited an 1890 decision immunizing federal officers operating within the normal scope of their duties. In re Neagle, 135 U.S. 1 (1890). But a marijuana advocacy group is pressing the case and has filed a complaint with federal officials alleging that Walters has violated the Hatch Act. Prickly relations Andrews said the rebuke reflected Nevada’s prickly relations with the federal government. “Approximately 85% of Nevada is federally controlled,” Andrews said. “We have six lawsuits going currently fighting the storage of high-level nuclear waste at Yucca Mountain. We are probably a bit sensitive, but it’s important to voice our concerns about the federal government inserting itself into our election process.” In January, Nevada Secretary of State Dean Heller wrote to Walters-whose title is director of the White House Office of National Drug Control Policy-noting that Nevada law requires “the reporting of contributions and expenses for every person or group of persons organized formally or informally who advocates the passage or defeat of a question or group of questions on the ballot at any election.” The referendum was defeated in November 2002. Edward H. Jurith, general counsel to Walters, responded that “speaking out about the dangers of illegal drugs” is a specific obligation of Walters’ job and he had no obligation to comply with the state reporting requirements. “This is law that goes back to the beginnings of our country,” Jurith said. “This was an attempt to force the director to explain his actions to a third party. He doesn’t have to, because he was clearly operating within the authority Congress delegated to him.” The Nevada secretary of state asked Walters to file spending disclosures after receiving a complaint from the Marijuana Policy Project, an advocacy organization based in Washington, which argued that Walters made public appearances and authorized television commercials intended to influence the outcome of the referendum. Steve Fox, director of government relations for the Marijuana Policy Project, said Walters also campaigned against marijuana decriminalization measures in Ohio and Arizona but only Nevada has a relevant disclosure law. He contends that the Nevada campaign reporting statute is binding on Walters by the terms of the U.S. Supreme Court’s Johnson v. Maryland, 254 U.S. 51, which says federal employees must obey all state regulations, such as building codes or traffic laws, that do not “frustrate the full effectiveness of federal law.” “Requiring the drug czar to file campaign finance forms does not frustrate his purpose. He is free to campaign to his heart’s content,” Fox said. “John Walters has to face up to the fact that he campaigned in Nevada and there are laws he has to follow.” The Marijuana Policy Project cited the quote in a complaint to the office of special counsel, an independent federal investigative unit, alleging that Walters’ activities in Nevada violated the Hatch Act prohibitions on the use of “official authority and influence for the purpose of affecting the result of an election.” Jurith, counsel to the drug czar, said he has not seen the Hatch Act complaint and he could not discuss it. Page’s e-mail address is

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