The Intimidation Game

by Kimberley Strassel

  McCain meanwhile also had flanking cover from an array of left-wing foundations and “good government” groups—Common Cause, Democracy 21, the Center for Responsive Politics, the Pew Memorial Trusts. And with the mainstream media running daily stories about the virtues of finance law and “clean” government, the population got behind the cause as well. McCain and Feingold pushed their rock up their hill for seven long years, adding provision after provision with each new version of their bill. By the time the Bipartisan Campaign Reform Act came to the floor in 2002, it contained more ornamental restrictions than a government Christmas tree: new rules on donations; on the definition of ads; on the types of ads groups could run; on the time frame in which they could run them; and on the types of organizations that could participate in elections. It moreover contained breathtaking new disclosure rules—expanding the scope of who was required to report to the federal government, and narrowing the time limit in which this needed to happen. You know the annoying phrase that now comes at the end of every political advertisement: “I’m Joe Blow, and I approve this message”? You can thank John McCain for that.

  The bill was hardly a sure thing. McCain aside, most Republicans had grown wary of the finance “reform” craze. Democrats had glommed onto it for all the usual reasons—to handicap Republicans and to improve the party’s reputation after the Clinton money scandals. The corporate financial scandals of the late 1990s (Tyco, Enron, Global Crossing) had also put the public in a mood for financial reform of any kind. Republicans, however, were re-remembering their roots as the constitutional party and defenders of free speech, and the McCain bill was over the top. They opposed nearly every element.

  Save this: disclosure. Political memories are short, and Watergate had helped politicians to forget the way government had abused disclosure during the McCarthy and civil rights eras. They bought into the idea that more information about political involvement would yield cleaner government. (They had yet to be introduced to the Obama presidency.) This public view played a big role in the Burger Court’s decision to sanction disclosure in its Buckley decision. Disclosure was already so in vogue that even those who brought the lawsuit against FECA didn’t really challenge its disclosure provisions.

  Republicans also saw political refuge in disclosure. They knew the public wanted more money regulations (which they opposed), and they didn’t want to stand for nothing. So they adopted a new cause: transparency. By the mid-1990s, the stated conservative position was as follows: We should get rid of all government rules on money and speech and replace them with a system of full and instantaneous disclosure. That position allowed the GOP to be in favor of more speech, in favor of “clean” government, and in favor of leaving it to the public (rather than the government) to decide what influence money was having on elections. It sounded good. And in fairness, the left hadn’t yet zeroed in on disclosure as an intimidation weapon.

  This idea was such a craze that at the height of the reform craze, House whip Tom DeLay and California Republican John Doolittle put forward their own alternative to McCain-Feingold. It proposed lifting existing regulations on political money and replacing the whole shebang with a system of immediate and complete disclosure on the Internet. DeLay was at least honest about the political realities of finance reform, and his own motivations. Democrats, and even some Republicans, continued to pretend they were pushing reform in the name of cleaner elections. The Texas Republican leader called them out, noting that McCain-Feingold was all about silencing certain classes of political participants—namely the business community, which tended to support Republicans “I am for full disclosure. I am for instant disclosure,” said DeLay. “But I am not for unilateral disarmament.”

  Democrats sensed the public tide on their side and slammed the proposal. The New Republic wrote about the DeLay-Doolittle legislation under the headline “Cynics United.” The left nicknamed the bill “do little and delay.” DeLay-Doolittle never did get a vote. And it would come under retrospective ridicule when DeLay a few years later was indicted in a finance probe. But the bill mattered. It staked out for years the conservative position on campaign finance: disclosure, disclosure, disclosure. That position would last right up to the point at which the right’s grassroots supporters became IRS quarry.

  Not every conservative fell for it, though, even in the early days. In 1996, a little-known faculty member at Capital University Law School in Columbus, Ohio, by the name of Brad Smith published an article in the Yale Law Journal under the title “Faulty Assumptions.” Smith laid out a precise and damning critique of campaign finance laws. They were based on incorrect beliefs about the effect of money in politics, and they inspired perverse consequences, he wrote. The article, and his follow-up book, Unfree Speech, turned him into a nationally recognized free-speech expert. He became a fixture at congressional hearings; his voluminous writings worked their way into judicial decisions.

  Mostly, Smith became a guiding influence on the conservative turn against political-speech laws. Senate Republican leader Mitch McConnell, one of Congress’s most ardent free-speech defenders, would ultimately send Smith’s name to the Clinton White House as a GOP choice for the FEC. The academic was by then so controversial that the left staged near-riotous objections to the nomination, and the confirmation process dragged on and on. When he finally got a vote, in May 2000, thirty-four Democrats (and John McCain) voted no in protest. The New York Times would begrudgingly title him the “intellectual powerhouse” behind the conservative movement’s new effort to deregulate finance laws. His opponents—including Democrats and so-called good-government groups—immediately despised him, deriding him as a “flat-earth society poohbah.” One editorial page would liken him to David Duke, the Unabomber, and Slobodan Milošević—all in the same article.

  That’s amusing, because Smith is the furthest thing from a Serbian dictator. He’s from Michigan, and he has that understated midwestern thing going on. He’s a law professor, and he looks the part. He has a wry sense of humor. (Underappreciated fact: Some of the quirkiest people in America are campaign finance lawyers.) Smith’s particular gift, however—and what makes Democrats dislike him so—is his ability to use uncomfortable realities in crafting his arguments, and to then make those arguments in ways that average people can understand.

  Smith’s early criticisms of campaign finance laws are now the standard case against “reform”: The laws protect incumbents; they lock out new entrants to the political scene; they force candidates to spend all hours of the day and night fund-raising (rather than governing); they reduce political accountability; they kill free speech. They are inherently unfair; they give vast rights to the press, but deny them to average Americans. They are ineffectual; money always finds a way, and the laws drive it to darker places. What particularly drove the left doolally about Smith was his ability to blow up their most basic arguments. The “reformers”: Money in politics is corrupting. Smith: How can it be corrupting to spend money to try to convince someone to vote a certain way? Isn’t that just democracy?

  What was most notable about Smith’s work—even his earliest tracts—was his skepticism of disclosure laws. Most Republicans didn’t buy into his cautionary note; disclosure was their political cover, and they were sticking with it. Even other conservative scholars didn’t agree; disclosure simply sounded too good. His wariness would nonetheless prove justified, and in the wake of the IRS and other targeting, he’s only grown in his belief that, as he tells me, “there should be a very heavy burden on anybody who wants to invade your political privacy.”

  When Smith talks about disclosure, he likes to reference that McIntyre decision of 1995. “You’ve got to think about this in context, not legal speak,” he says. Here is an average mom just trying to raise the alarm about a school tax. “Which means she is a person whose kids could easily face retaliation from teachers who don’t appreciate a parent opposed to more school funding,” he says. Smith is himself the child of two teachers, and grew up understan
ding how vindictive the profession can be. “Those kids might have trouble getting references for college; they might be punished in band, or chess club, or in their athletics. There’s a whole bunch of reasons, in a public school, that you don’t want to be known as the kid whose parent is leading the charge against the tax increase.”

  And the McIntyre case, Smith adds, was about vindictiveness. School officials knew exactly who had distributed the flyer; it is how they were able to file a complaint against McIntyre with the Ohio Elections Commission in the first place. There was no “disclosure” problem. “The complaint was instead filed to send a message to others to not do the same thing,” says Smith. “Is that what we want disclosure laws used for?”

  As an FEC commissioner, Smith saw up close and in person the ways that disclosure discouraged political speech. He also saw how the burdens always fell disproportionately on the little guys—folks like Karen Kenney. Corporate America and powerful political groups hire teams of lawyers to walk the right side of the law. But the average American has no such legal adviser, and their hardest area of compliance is disclosure. “Even small, grassroots groups, they generally understand the big rules. There is an easy cheat sheet for them to follow,” says Smith. “But the disclosure forms are insanely complex. Nobody can get them right.”

  Conservatives are fortunate to have had a string of distinguished free-speech advocates at the FEC, including one who immediately followed Smith, Hans von Spakovsky. Von Spakovsky worked years in the Justice Department before serving at the FEC as a commissioner in 2006 and 2007. He remembers his own first realization that conservatives had made a mistake in embracing disclosure. The FEC was contacted by a woman who had given a contribution to a political candidate whom animal rights groups detested. Those groups tracked down her name with disclosure forms and started harassing her. “She wanted her name off these public lists, so they’d leave her alone,” he recalls. “We evaluated it, but there was nothing we could do under the law. And that was one of the first times I saw the really bad purposes to which disclosure laws could be put. They sound innocuous, but there are all kinds of things that are innocuous until they are used in a bad way. Say, box cutters.”

  The problem is that disclosure and finance laws have become an article of faith for much of America, particularly liberals. Smith remembers getting in an elevator at the 2000 Republican convention and discovering himself in the company of the liberal Al Hunt, then a Wall Street Journal columnist. Hunt had written critically of Smith during his nomination to the FEC. Smith recalls that after a few seconds of polite chitchat, Hunt proclaimed that it didn’t matter that Smith had recently been confirmed, because the FEC never did anything useful anyway. Smith disagreed; the FEC played an enormous (often terrible) role. He attempted to explain to Hunt that he’d met many average Americans who were “scared to death” of the FEC and of running afoul of its scary laws, and that this discouraged them from taking part in politics. By the end of the elevator ride, Smith remembers, Hunt was screaming at him—and the conservative law professor had learned something about the depths of liberal love for finance regulation.

  (I felt obliged in our interview to break it to Smith that his elevator ride wasn’t all that special. When I was a young editor for the Wall Street Journal editorial page, one of my first jobs was editing Hunt’s weekly column. Hunt is a jolly, warm, and smart man, and I always enjoyed our weekly talks. He’s also known for a short fuse, and another of my jobs was to submit to the occasional Hunt scream-fest. It was my first lesson in hanging up on someone. To Al’s credit, he’d often follow these up with a wine-and-cheese basket, sent by way of apology. As a young and poorly paid staffer at that time, I occasionally joked whether, in moments of low funds, it might be worth provoking Al into a temper.)

  Smith points out that you also don’t have to be the average unknown citizen to feel intimidated. He himself is a respected academic, operating in a world of higher education that rarely practices the tolerance it preaches to its students. He ticks off the long list of ways that a university can make life difficult for a professor who practices the “wrong” politics. Want tenure? You may not get it. Want that deanship? Not likely. Want to teach a particular class? They may say no. Want more money in your department? Not possible. And the insidious part is that schools and faculties can access that disclosure information on the sly and make those judgments without ever admitting to them. “How do you even know when you are getting harassed?” notes Smith. “How do you know what jobs you didn’t get because of your political views?” Smith admits that even he at times has limited his political contributions to $199, just short of the enforced disclosure limit. “I’m a pretty tough guy. I like to think I meet Scalia’s standard for ‘courage.’ I’ve made a career of saying what I think, and standing by it. But there are times when I know a donation might disturb a social relationship I have, or a case that I’m working on, or a situation with an organization I’m connected to. Some people want to preserve family harmony; or they don’t want their neighbors to know what they are worth; or they don’t want their kids passed over for the varsity team. And that’s the point: There are all kinds of reasons why people, in different circumstances, might not want to broadcast their politics. What right has the government to force them to do so?” A lot of the intimidation is subtle, but Smith muses that it is only a matter of time before disclosure leads to deadly retribution—say the bombing or shooting of a pro–abortion rights or anti–gay marriage financial contributor.

  Smith’s other insight at the FEC: the degree to which disclosure is the hook for yet more speech laws. “It’s standard operating procedure for the pro-regulation crowd,” he explains. “They will say, ‘Well, we just need to know what this group or that group is doing.’ But once they have that information they will say, ‘Look, how bad it is what this group and that group are doing! We need more rules and regulations to stop it.’ And that’s how you end up with the insane system we have today.”

  * * *

  Smith became one of Washington’s loudest opponents of McCain-Feingold, an archnemesis to John McCain, and a big reason why the legislation barely passed the Senate. Among his predictions was that the law—the most massive and complex juggernaut of regulations yet—would set off an unprecedented round of political jockeying, as the dueling parties tried to game the new system to their electoral benefit. In this, too, he was right. Washington had done the Tillman Act, Smith-Connally, Taft-Hartley, FECA. But it was McCain-Feingold that laid the groundwork for a new era of political brutality, one that led directly to the left’s new tactics and the modern intimidation game.

  President Bush signed the law on March 27, 2002. Bush had publicly said that he thought parts of the law were unconstitutional, yet he feared a public hammering if he vetoed it. So he signed—a sin for which many free-speech advocates have never forgiven him. The new rules weren’t set to kick in until 2003, but well before that Democrats and Republicans geared up to manipulate the law.

  Democrats pushed the bill because they hoped it would resonate with the public and help against opponents. But savvier party members were outright terrified that it would all go wrong. This was the clear-eyed crowd that knew, for all its complaints about big, shadowy money in politics, that the left had long been far more dependent on it than the right. McCain-Feingold essentially outlawed it, and therefore potentially gave Republicans—who thrived on small donations—a big advantage in the upcoming 2004 presidential race.

  In a 2003 piece by Seth Gitell in the Atlantic entitled “The Democratic Party Suicide Bill,” Joseph Sandler, counsel to the Democratic National Committee, said what few other Democrats were willing to say. The law was “a fascist monstrosity.” He continued, “It is grossly offensive…and on a fundamental level it’s horrible public policy.…And it’s a disaster for the Democrats. Other than that, it’s great.” Bauer, at that time a counsel to the Democratic Senatorial and Congressional Campaign Committees (which exist to elect and reelect De
mocrats to Congress), also made the rounds, warning party leaders that they needed a plan.

  They had one pretty quickly. For decades, the IRS code had allowed Americans to create tax-exempt political groups known as 527s. These groups could accept unlimited donations, so long as they didn’t coordinate with campaigns and focused solely on issues. The political parties and their operatives had never been much interested in them, since the parties had always been able to raise plenty of money in their own right. But McCain-Feingold severely cracked down on party fund-raising. It hadn’t, however, imposed nearly as many restrictions on 527s. Suddenly, every Democrat and their dog was setting one up. And all that big money the party had traditionally relied on flowed into them. George Soros, the billionaire liberal financier, in the space of three months had dumped more than $15 million into three 527 groups—the Media Fund, Americans Coming Together (ACT), and MoveOn.org. He’d ultimately give more than $23 million in the cycle to 527s. Peter Lewis, the owner of the Progressive insurance company, threw that much again at groups set up by Big Labor and trial lawyers.

  President Bush’s financial advantage rapidly began to shrink. The GOP might have tried matching the Democrats with 527 money. Instead, Republicans became the first in the McCain-Feingold era to (unforgivably) call in the forces of government to silence their opponents. They went running to the FEC, demanding that the campaign finance umpire devise a new rule that would explicitly extend the big-money ban to 527s. Eighty percent of congressional Republicans had voted against McCain-Feingold on free-speech principles, yet in the face of an electoral shellacking those principles went out the Capitol window.

  Sitting as chairman of the FEC at that time was none other than Smith. The professor and his two Republican colleagues on the commission knew that Republicans, and the White House in particular, desperately wanted restrictions placed on the 527s. But to the GOP’s absolute fury, Smith refused to abandon his free-speech principles and essentially declined to silence the groups. He was publicly scathing about the Republicans’ hypocrisy and their attempts to use a law they supposedly hated to cripple their opponents. “If Republicans think they can win by silencing their opposition, they are wrong and they are going to deserve to lose,” he said. Democrats crowed over the victory, with Jim Jordan, the spokesman for both the Media Fund and ACT, telling the Washington Post that the FEC’s decision meant his groups would charge into the election operating “robustly and effectively.” The media, unsurprisingly, largely failed to point out that it was Democrats who’d wanted all these new rules, and yet were celebrating the continued use of “big money.” Smith earned himself short-term enmity from the right. And he earned no credit from the left, which still viewed him as the enemy.