The Intimidation Game (excerpts)

The Intimidation Game: How the Left Is Silencing Free Speech  by Kimberley Strassel

January 21, 2010, is when the Supreme Court ruled on a case known as Citizens United. To listen to President Barack Obama, or Senator Harry Reid, or any number of self-proclaimed “good government” organizations, this decision mattered because it marked a new tidal wave of “dark” money and “shadowy” organizations into elections. It supposedly gave powerful special interests new control over democracy. Citizens United didn’t do any of that. But it did unleash a new era. It set off a new campaign of retribution and threats against conservatives. Citizens United launched the modern intimidation game.

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They encouraged, explicitly and implicitly, the IRS to target and freeze conservative groups during election years. They called out conservative donors by name, making them the targets of a vast and threatening federal bureaucracy.

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They also cleverly cloaked all this behind a claim of good government. Citizens United, they said, threatened to put powerful and nefarious forces in charge of democracy. And therefore all of their actions and tactics were justified in the name of the people.

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Nearly sixty years ago, the Supreme Court issued a groundbreaking decision, NAACP v. Alabama, that protected the rights of Americans to engage in politics with some degree of anonymity. This was the civil rights era, and blacks were being targeted, firebombed, and shot at for daring to speak out. The high court understood how corrosive this was to democracy, and declared that the Constitution provided some measure of refuge to citizens at risk of political retribution.

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Political memories are short, and Watergate had helped politicians to forget the way government had abused disclosure during the McCarthy and civil rights eras.

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Political operatives weren’t just using disclosure to punish citizens for their donations, but were wielding it to close off speech before it even happened. As Thomas wrote, the “success of such intimidation tactics has apparently spawned a cottage industry that uses forcibly disclosed donor information to pre-empt citizens’ exercise of their First Amendment rights.” He made special note of the Matzzie letter warning off donors in the 2008 election. Thomas then predicted another problem. It was bad enough, he noted, that citizens were using disclosure to threaten and retaliate against each other. But his colleagues needed to consider that transparency might ultimately prove a weapon in the hands of a more menacing power—government.

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As Thomas rang out in closing, “I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in ‘core political speech, the primary object of First Amendment protection.’”

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Few people outside of Clarence Thomas remembered the ugly history of the NAACP, or McIntyre, or the risk of exposing Americans to retribution. Citizens had instead refocused Americans on the threat of “dark money” (undisclosed money)—and Democrats intended to use that to their favor.

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In the 2012 election year, U.S. political actors spent about $7 billion attempting to get their favored candidates elected. It sounds like a lot, but then again, Americans spend roughly $7 billion every year on Halloween. National elections happen only every two years, which means that the U.S population spends twice as much every cycle buying Supergirl costumes and Milk Duds than they do electing the people who will govern their country. Of that $7 billion spent in 2012 to form a government, about $320 million of it was “dark money.” Do the math, and 96 percent of the money spent in elections is disclosed. Only 3 to 4 percent (it varies by cycle) is done anonymously, and even then, most of it is hardly anonymous.

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In short, the IRS had been warned. It knew its own history. It knew the law. But it also had its boss, the president of the United States, sending it very clear signals every day about “shadowy” conservative “front” groups “posing” as tax-exempt entities and illegally controlled by “foreign” players, engaged in “unsupervised” spending that was a “threat” to democracy. It had formal complaints. It had some of the nation’s most influential Democratic senators demanding an investigation. It heard the call. And it acted.

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Democrats also shouldn’t have been surprised by the news. They’d inspired the targeting. They knew that a Democratic administration and Democratic Senate and Democratic House members had called on an IRS staffed with Democratic appointees to go after conservative groups. They now knew that the IRS had done just that.

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Once the IRS scandal was exposed, a lot of investigators began wondering just how much unsanctioned, two-way cooperation between Obama agencies was taking place in opposition to conservatives. If the FEC staff was funneling tips to Justice, was Justice influencing FEC staff reports? Was Lerner influencing FEC staff? McGahn explains that what makes the situation even murkier is the basic character of FEC staff. They are naturally biased. “The place in its early days was staffed by followers of Ralph Nader—Naderites who believed that all politicians are corrupt, and that both parties are awash in too much money,” he says. A younger generation is now in town, but the ghosts still linger.

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The pressure on Democratic legislators in ALEC has become even more wild and nasty.

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The left uses this information to hassle legislators, even going so far as to employ it in campaigns against them. “This is the part that I hate the most,” says Nelson. She acknowledges that some of the Democratic drop in ALEC membership is due to bigger forces. The Democratic Party has shifted to the left, and many of its pro-business Democrats were ousted in primaries, beaten by Republicans, or switched parties. “But those who are left are viewed and attacked as pariahs, just for deigning to work with the other side,” says Nelson. “These activists don’t want bipartisanship, they don’t want solutions. They want anyone who doesn’t agree with them shut down.” Nelson has even struggled in recent years to get a Democrat to serve in the rotating top ALEC leadership position. ALEC has even dealt with Democratic saboteurs.

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But the most sinister part of the subpoena was this: “This John Doe search warrant is issued subject to a secrecy order. By order of the court pursuant to a secrecy order that applies to this proceeding, you are hereby commanded and ordered not to disclose to anyone, other than your own attorney, the contents of the search warrant and or the fact that you have received this search warrant. Violation of the secrecy order is punishable as contempt of court.” It was almost Orwellian.

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It was a revenge attack for the success his side had had in defeating the recent recalls.

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O’Keefe’s view is that direct participation by these organizations—nonprofits, think tanks, 527s, the like—is the only way to keep politicians and government responsive. He just as fervently believes that money is a foundational aspect of that. “It always bugs me, this obsession with political spending,” he says. “Campaign spending as a percentage of the federal budget is a flat line—and it is all of 0.02 percent. The left, they act like there is too much money in politics. Really?

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The outrage over the tactics, and public concern over government abuse, did at least give Republicans an opening to right a few wrongs. In October 2015, Walker signed a bill gutting the John Doe as a tool for political persecution. The new law outlaws John Doe investigations for allegations of political misconduct. Prosecutors can henceforth only use them for grave and specific lawbreaking—namely violent felonies and some drug crimes—and also must obtain permission from a majority of the state’s chief judges to extend probes beyond six months. Secrecy orders now only apply to prosecutors, court officials, judges, and investigators. There are no more gags on suspects or witnesses. Every Democrat in the Wisconsin Assembly and Senate voted against the measure. Which is another way of saying that Wisconsin liberals went on record in favor of gag orders, predawn raids, limitless warrants into e-mail, phone, and bank records, and the targeting of Americans for their ideology.

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Nixon’s private “enemies list” was bad. Barack Obama’s public “enemies list” was arguably worse. Obama had used 2010 to alert and sic the IRS on Tea Party groups. But by calling out private citizens by name on his website, he was alerting and siccing every part of his government on Republican donors. The message from the man who controls the Justice Department (which can indict people), the SEC (which can fine people), and the IRS (which can audit people) was clear: Donate money to Romney, and you are fair government game. The posting was also an APB to every liberal group and activist in the country to target those donors.

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In some ways, it shouldn’t have come as a surprise. The left started its intimidation campaign by trying to silence a nonprofit here, a company there, a big donor here, a trade association there. But along the way it wrapped in small donors, and scholars, and scientists, and petition signers, and shareholders, and free-market professors, and grassroots groups. It was only a matter of time before it came to the obvious conclusion: Everybody has too much speech. And so on September 11, 2014, fifty-four members of the Senate Democratic caucus voted to do something that had never been attempted in the history of this glorious country: They voted to alter the First Amendment. Henceforth, “Congress and the states may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections,” and may outright “prohibit” corporations and nonprofits from spending any money “to influence elections.” The amendment gave incumbent legislators and state officials near-total power to suppress undesirable political speech. Why were Democrats proposing a change to the Constitution, rather than just legislation? Because such legislation is unconstitutional.

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The Democratic Party as a whole is now adopting this proposal to overthrow the First Amendment. It won’t happen anytime soon—passing an amendment to the Constitution is hard. But the fact that Democrats are trying to marks a radical shift in the political culture. The left is done with debate.

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Then again, there’s a good case to be made the left isn’t planning on there ever being another moment when the other side is in power. Their intention is to make sure they forever own the debate. That’s the point of shutting down speech. That’s the point of the intimidation game.

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Instead, the laws that were designed to keep the political class in check are being used to keep the American people in check.

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The entire concept of disclosure has in fact been flipped on its head. The American people know almost nothing about the working of government. Instead, disclosure is trained on the electorate, allowing the government to know everything about the political activities of Americans.

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At the very least, it’s time to rethink the levels at which citizens are required to disclose contributions. They need to be dramatically raised. If the left’s argument is that democracy is at risk from “powerful” players, then it can have nothing to fear from the donor who gives $5,000 or $10,000 or even $20,000 to a candidate or party. That is peanuts compared to the more than $70 million that billionaire environmental activist Tom Steyer spent in the 2014 elections to (unsuccessfully) retain a Democratic Senate. It’s a simple fact that in today’s big-money political arena, no politician can be “bought” with a mere $10,000. The current disclosure requirement of $200 is primarily designed to ensure that every citizen’s political activity is known to the federal government.

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That’s why it is also time to rethink the Federal Records Act and the Freedom of Information Act. Both need to be overhauled, to include provisions that ease and streamline the ability of outside groups to obtain records, and to impose severe penalties on agencies and federal employees who fail to comply.

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It’s time to rethink campaign finance laws, at both the federal and state level.

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Corporate actors have an enormous stake in the political debates that shape regulations and the tax system and trade policy. They have a right to speak.

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It’s time for the courts to wake up—and to recognize Clarence Thomas’s prescient observations about where today’s disclosure and speech law regime has left the country. It’s time for the courts to recognize that we are once again in an environment in which average citizens are afraid to speak.

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Mostly, it’s time for Americans to speak up. The intimidation game only works if its targets let it. When citizens blow the whistle on abuse and stand up to it, they are by definition rejecting intimidation. They inspire others to come to their defense and to speak out themselves.