The Intimidation Game

by Kimberley Strassel

  The question, though: What to do? The parties had dueled over campaign finance law for generations, each side using “reforms” to lard more restrictions on their political opponents. The courts had largely gone along with the exercise, unwilling to buck public sentiment. Yet now the Supremes had found a constitutional right for companies and unions and independent political groups to speak freely in elections. It was an expansive decision. And that meant the tool that professional politicians had relied on for so long—the outright silencing of political speech via government regulation—was no longer at their disposal.

  “The left found itself at a high-water mark in 2010; it had knocked completely out of public discourse most of the free-market voices out there. It hadn’t needed intimidation or retaliation, because it had simply censored the other side,” says Lee Goodman, one of the current Republicans on the Federal Election Commission. “Then came Citizens United, and it couldn’t censor outright anymore.” Goodman continues, “Of course, the left didn’t give up on the idea; it just realized it had to be far more creative about suppressing speech. And so it moved to plan B, which was to find other levers of government power to eliminate unwanted viewpoints.”

  Tribe, in his article that appeared just a few days after the ruling on the popular SCOTUSblog, partly laid out that plan B. The law professor offered some fairly dry legal analysis of the decision, before moving on to the meat of his proposal. Companies that engage in elections, explained Tribe, were doing so with “other people’s money”—that of shareholders. That justified the federal government’s passing legislation to help shareholders “ensure that his or her investment is not deployed to advance or obstruct the election of particular candidates to federal (or indeed, state) office contrary both to that shareholder’s own wishes and, more importantly in this context, to the corporation’s business interests.” At the very minimum, said Tribe, Congress should dramatically beef up “disclosure and disclaimer requirements” forcing CEOs to have to publicly explain in each ad how much money was being used, and how it supposedly helped the company. And that, explained Tribe, would be as good as a ban: The process of requiring companies to go public would embarrass them out of participating.

  Cut out the legal jargon, and Tribe was advocating something extremely simple: humiliation. Force companies to have to justify their speech, and bet that this would intimidate them out of doing so. The Tribe prescription was an amplification of Toobin’s thought on boycotts. Companies live in fear of shareholder or customer backlash. So the left needed to pass enhanced disclosure laws that would make companies fear that backlash. And those disclosure laws would, as a bonus, give Democrats more information, allowing them to go after specific businesses and damage their reputation if they came out for the wrong side.

  Tribe’s essay wasn’t novel. It was more the public announcement of a strategy that had been in the works for months. Democrats had always understood that the Court might rule against them in Citizens, and they’d been preparing a response. That’s why President Obama, just hours after the decision, announced that he was telling his administration “to get to work immediately with Congress on this issue. We are going to talk with bipartisan congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.” Obama already knew what that response would be.

  * * *

  When Ted Olson looks back, he wishes he’d focused a bit more on the disclosure question. But hindsight is always 20/20 and—at least at the time—what he was understandably focused on is what he calls “the big banana.” That “big banana” was the limits on corporate participation in elections. Olson argued the case on behalf of the free-speech contingent, and is one of a handful of brave souls who can take credit for the Court’s striking down those limitations.

  One of Washington’s more high-profile lawyers, Olson was an interesting choice for the assignment. George W. Bush tapped him at the beginning of his first term as solicitor general. Bush’s signature on McCain-Feingold set off a series of court fights, and Olson successfully and dutifully defended parts of the law on the president’s behalf in 2003. Only six months later he returned to private practice at the respected firm of Gibson, Dunn & Crutcher, where he rejoined the ranks of free-speech warriors.

  Americans think most Supreme Court cases are happenstance. Some random citizen—a Margaret McIntyre—suffers an injustice, and her case slowly wends its way to the highest court in the land, where precedent is set. That does happen. But just as often, cases are engineered. Dedicated lawyers and activists look at laws and identify potential challenges. They pick through scenarios and attempt to create a situation—a set of circumstances—that forces courts to act. That was the history of Citizens United.

  David Bossie came of political age in the Clinton scandal years, joining a conservative nonprofit called Citizens United. He spent a number of years doggedly researching the shady financial practices of the Clintons, and became the group’s president in 2000.

  Bossie ultimately turned Citizens United into a movie studio, devoted to conservative documentaries that might aid in elections. He wasn’t the first to come up with the idea. Liberal filmmaker Michael Moore had created Fahrenheit 9/11, his hit job on George W. Bush’s war on terror, with the aim of influencing the 2004 presidential race. He debuted it five months before election day, and publicly admitted that his goal was to energize anti-Bush forces and increase turnout for John Kerry. Moore’s documentary was technically a movie—covered completely by the First Amendment—yet every time a thirty-second promotion for it ran on TV, it was the functional equivalent of a campaign ad.

  Bossie noticed. He reached out to James Bopp Jr., a lawyer who’d made a reputation forcing the Supreme Court to confront the free-speech hypocrisies of campaign finance law. He’d already helped strike down part of McCain-Feingold. Bopp ended up working with Bossie on Hillary: The Movie, an exposé of the former First Lady’s business dealings and checkered political past. Under Bopp’s guidance, the documentary team took special care to craft the script in a way that would challenge several provisions of McCain-Feingold, including its ban (by companies, unions, and outside groups) on issue ads in the run-up to an election, as well as its disclosure regime. And then Citizens United prepared to roll it out in 2007, to tie it to the presidential election and force the constitutional question.

  “The movie was designed to highlight the absurdity of this law,” says Bopp, who works out of Indiana. “We started out with a big advantage in this case—we had the law on our side. ‘Congress shall make no law’—that’s a command, not a suggestion. How can a movie about Hillary be legal, but an ad about the movie not be?”

  Citizens United went straight to the FEC to get a ruling, and, unsurprisingly, the FEC ruled that it was in essence an election ad, barred by McCain-Feingold. The group appealed it up, and a federal court upheld the bar on running any TV ads or video-on-demand. When it came time to argue it to the Supreme Court, Bossie enlisted Olson, who he knew held a stellar track record in front of the high court.

  Olson felt that the best way to win the case was to keep it focused on that “big banana”—the basic question of free speech. So he narrowed the scope. “We were thinking about disclosure, because it was also an issue in this situation. There was an important point about just how much disclosure this little group ought to be forced to do under McCain-Feingold, and would they be harassed or intimidated,” he recalls. “But we really wanted to win on the unconstitutionality of restricting the use of money and speech per se, and we were worried if we took too much time in the [Supreme Court] briefing on the disclosure point, we’d weaken our ability to get that big banana.”

  Olson also (wisely) bet that the Court would want a “fallback”—a way to soften the blow of the decision. And he bet that that fallback might be the Court’s full embrace of the law’s disclosure regime. He couldn’t have been more correct. The decision, written by Justice Anthony Kennedy, was bold on the free-spe
ech point. The Court had spent years coddling the finance-restriction crowd, but the Citizens case highlighted too many inconsistencies. So five justices took a strong stance on the First Amendment, restoring the rights of many groups to take part in elections. At the same time, all the justices knew that the decision would be met with a firestorm, and most wanted political cover. Their “fallback”—to use Olson’s word—was to hail McCain-Feingold’s disclosure rules. Kennedy even argued that those disclosure provisions were what had allowed the Court to more fully embrace free speech. “The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.” Eight of the justices would ultimately join in the part of the decision upholding disclosure.

  Olson still thinks it was the correct call at the time, and he’s right. “It was a tactical thing; we didn’t put a lot of energy or enthusiasm into the disclosure question,” he says. “And remember, this was a moment at which a lot of people on the conservative side of the spectrum embraced that view. Their argument to the left was, ‘Why are you complaining about more free speech? If we just have disclosure, everything will be open, and that is the remedy.’”

  But subsequent events changed most conservatives’ view on disclosure, including his own. “It is something that maybe we’d do differently today, given all that has come since. It wasn’t too important at the time to the folks at Citizens United, although we all have become a lot more focused on it over time. We are all now realizing that this can be a very potent weapon to intimidate people or discourage them from participating in democracy. It’s a huge threat.”

  The one brave soul on the Court to dissent would be—once again—Clarence Thomas. His scathing takedown of the law’s disclosure regime, and his worries over its ramifications, today read like an eerie road map of what ultimately would come.

  “The disclosure, disclaimer, and reporting requirements in [McCain-Feingold] are also unconstitutional,” Thomas bluntly began, pointing out that the Court had backed the idea of anonymous speech as recently as the McIntyre case. He chided his colleagues for ignoring briefs filed as part of Citizens United that illustrated how disclosure was already causing donors to be “blacklisted, threatened, or otherwise targeted for retaliation.” 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. In what is surely the first and last time I will ever be mentioned in a Supreme Court decision, Thomas referenced a column I’d written about West Virginia attorney general Darrell McGraw. McGraw had terrorized his state’s business community, filing questionable lawsuits against them. The AG doled out the work for these cases to his trial bar buddies, who in return funneled huge amounts of their state-provided contingency fees to McGraw’s reelection. An upstart Republican lawyer named Dan Greear in 2008 boldly chose to challenge the fourteen-year incumbent Democrat for his seat, but quickly ran up against a fund-raising problem. Businesses feared donating to Greear, because McGraw would know about it. As I quoted Greear at the time, “I go to so many people and hear the same thing: ‘I sure hope you beat him, but I can’t afford to have my name on your records. He might come after me next.’” Thomas summed up, “Disclaimer and disclosure requirements enable private citizens and elected officials to implement political strategies specifically calculated to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights.”

  Thomas meanwhile disagreed with the majority’s claim that the Court could guard against any free-speech abuses that arose from more disclosure. The eight justices in favor of the transparency provisions again argued in their Citizens decision that any American subject to harassment need only come to the Court, which could—on a case-by-case basis—suspend disclosure. This was the majority’s way of claiming it hadn’t overruled its prior decisions on anonymity. It was still in favor of political anonymity, it said, so long as there was a good reason for it.

  But as Thomas pointed out, the majority had wrapped itself in a pretzel. It had hailed the Internet and immediate disclosure as a good thing for democracy, and a reason to allow companies and unions to again participate. Yet that “prompt disclosure,” said Thomas, meant political opponents had the ability to immediately intimidate and retaliate against their foes. The “improper” use of the information would happen “long before” a plaintiff could get a court to intervene. The harm would already be done. 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.’”

  * * *

  Democrats could endorse that view, and they did. Two years earlier, they’d witnessed the power of Bauer’s threats against supporters of any political rivals to Obama. It had worked swimmingly at the time, even if had received little note outside the political world. Now the Citizens United decision had given them a new way to elevate their campaign. 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.

  Two months prior to the Citizens United decision, Bauer had been appointed White House counsel—the top legal adviser to Obama. He was a perfect fit for a White House that, in a few short months in office, had brought Chicago-style politics to Washington—going after Chrysler bondholders; against insurers that balked at Obamacare; against Fox News for its coverage; against the Chamber of Commerce for opposing its plans on climate change. This theme—of shutting down and shutting up the other side—was the administration’s approach from the start.

  Bauer’s handiwork looked to be all over the legislative response that followed the Citizens ruling. Within one day of the decision, congressional Democrats, out of Van Hollen’s and Schumer’s offices, were telling the press that their response would involve (as the Washington Post reported) “strengthened disclosure requirements for companies that directly sponsor ad campaigns” in elections. Democrats also believed that the public would be “outraged by the possibility of foreign influence in U.S. election campaigns,” and so would consider legislation to restrict activity by companies that were subsidiaries of overseas corporations. “Do we really want the Chinese or any other country to spend money on our elections?” asked Van Hollen, who had himself raised plenty of money from executives who worked for exactly such subsidiaries.

  Congress usually moves slowly. Not here. The quick response was testament that Democrats had a strategy. And that strategy was modeled on what Bauer had done in 2008—find out who was doing what via disclosure laws, then embarrass, intimidate, humiliate, and threaten. On April 29, three months after the Citizens ruling, Van Hollen introduced the amusingly named Democracy Is Strengthened by Casting Light on Spending in Elections Act, backwardly constructed to spell out DISCLOSE. Schumer would debut his own Senate version a few months later, in July. The duo, focused on protecting their own incumbents and electing new Democrats, at least get credit for producing an artful bill. They managed to
conjure legislation that would crack down on—and enforce disclosure from—companies that might support Republicans, while retaining all the freedoms the Court had given to unions and independent groups that supported liberals. Some conservatives would later joke that the bill should be known as the “Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections Act.”

  The DISCLOSE Act required CEOs (much as Tribe had advocated) to appear in ads to “approve” their messages. It technically required companies, business groups (like the Chamber of Commerce), unions, and third-party organizations (like 501(c)(4)s and 527s) to “out” their donors. And the bill was designed to whip up some good old-fashioned xenophobia, by including provisions restricting political participation by companies with foreign ownership.

  Unions, which support Democrats, were nonetheless cleverly carved out of most provisions. The bill, for instance, required both corporations and unions to report donors of more than $600 a year. But since the average (forced) dues of the nation’s fifteen largest unions was $377 in 2004, nearly every union member would prove exempt. And while the bill also restricted political participation by government contractors, it had no such constraints on unions that received federal money or had collective bargaining agreements with the government. The AFL-CIO and the SEIU would be able to continue speaking loudly and freely.