The Intimidation Game

by Kimberley Strassel

  Baxley was proud of the legislation. He was also a member of ALEC. He brought it back, and worked to help turn it into model legislation. Within a few short years more than thirty states had a version of “stand your ground” on their books. The bills were immensely popular, and many were signed by Democratic governors, including Arizona’s Janet Napolitano (who’d become Obama’s secretary of homeland security) and Michigan’s Jennifer Granholm.

  On February 26, 2012, Trayvon Martin was shot. And Martin was the hook, a new way to go after ALEC. The left had always despised the group, but post–Citizens United, they had new reason to target it. The electorate in 2010 had revolted against a bevy of liberal and unpopular policies and programs. Democrats sustained staggering losses at the federal level, but they’d suffered even bigger ones at the state level. The electoral disaster gave Republicans unprecedented control over state legislatures and governors’ mansions, and a new ability to green-light reforms of the sort that ALEC proposed.

  The shooting was a tragedy; the death of any seventeen-year-old is something to mourn. But the left only viewed it that way for a short time. The sadness quickly gave way to outrage, and then to something appallingly cynical. In an interview with Bloomberg in May 2012, Common Cause spokeswoman Mary Boyle explained that her group had been waiting for months for the right moment to file a complaint with the IRS to strip ALEC of its nonprofit status. “The Trayvon Martin thing was like a gift,” she said, in an extraordinary, if horrifying, moment of honesty.

  Getting Americans outraged over school vouchers or pension reform—that’s tough. Getting them outraged over a young black man’s death, getting them to believe it is the fault of a racist organization, fueled by heartless companies—that’s a lot easier.

  In the space of a few weeks, the liberal coalition mobilized against ALEC, elevating an organization few Americans had ever heard of to the status of national pariah, responsible for dozens of laws that the left now refers to as “kill at will” statutes. By the end of March a rogues’ gallery of left-wing groups had organized a riotous rally outside ALEC’s D.C. headquarters to demand that the group “disclose” its funding. The National Urban League. The NAACP. MoveOn.org. The AFL-CIO and Service Union Employees International unions. Common Cause. People for the American Way. The Center for Media and Democracy. Color of Change.

  Color of Change was a newcomer to the ALEC fight, not really focusing on the group until the end of 2011, when it started pummeling it for its support of voter ID laws—claiming (incorrectly) that the statutes suppress minority turnout. But the Martin shooting gave Robinson and Jones cause to dramatically elevate the group’s attention on ALEC, and gain attention for itself. It also allowed them to go after their real targets: all those companies providing “dark” money to the organization.

  Robinson’s group had helped popularize anticorporate boycotts. Color of Change in 2009 pressured dozens of corporations to yank their ads from Glenn Beck’s Fox News show, and had repeated that blackball maneuver against conservatives such as Andrew Breitbart, who was dropped from ABC’s 2010 election-night coverage.

  As a 501(c)(3), ALEC doesn’t have to disclose who gives it money. But over the years, some corporations had acknowledged their ALEC partnership. Color of Change tracked down these names and cranked up its machine. A letter to eighty-five thousand members urged them to insist that companies like Coca-Cola stop supporting ALEC. The letter listed voter ID laws and “kill at will” laws as the reason for the protest, though it also couldn’t help but complain that ALEC supported “private education” and worked to “break unions.” Next up were the “blackmail” letters. Coca-Cola got an early one. Kraft followed. Wal-Mart. Amazon. Procter & Gamble. McDonald’s. Wendy’s. Pepsi. Intuit. Blue Cross Blue Shield. Visa. And on and on.

  The group didn’t even try to hide that its goal was to embarrass and intimidate companies out of supporting ALEC in any way, shape, or form. As National Public Radio reported at the time, “Rashad Robinson, director of ColorofChange.org, a civil rights organization in the coalition, says they are trying to put ALEC’s corporate members on the spot. ‘They’ll be making a choice, that they’re going to stand with an organization that works to suppress the vote and supports shoot-first legislation, and they won’t be able to do that in private.’”

  Coke crumpled quickly, in early April publicly declaring that it would pull its donations to ALEC, pathetically explaining, “Our involvement with ALEC was focused on efforts to oppose discriminatory food and beverage taxes, not on issues that have no direct bearing on our businesses.” Once Coke bailed, the lemmings started jumping blindly.

  By the end of the carnage, ALEC had lost as many as a hundred major companies, a significant portion of its mixed (small and large) five-hundred-company membership. It was a huge hit. Liberal outfits like the NAACP or Planned Parenthood or the Sierra Club (all 501(c)(3) groups themselves) have budgets that run to the tens of millions or hundreds of millions of dollars. ALEC, lean and mean, routinely operates at about $7 million. And it was at risk of losing it all.

  Chapter 17

  Driving Durbin

  Companies left ALEC because they were under pressure, but they also left because ALEC itself was paralyzed. The organization had never experienced an assault like this, and its executive director, Ron Scheberle, struggled to find a response to end the drama. In April 2012, ALEC shut down its Public Safety and Elections Task Force, the unit focused on the policies now causing the group such headaches. It was a mixed result. One argument went that ALEC was better off without it, that it arguably should never have got sidetracked from its core, economic focus. The more powerful argument, however—at least at the time—was that the move made it look like ALEC, like the companies, was caving. “We suffered from the same loss of nerve as the companies. We did what they did,” says one ALEC insider. “Had we at the time gone out and said, ‘Go pound sand,’ and got out in front of this, we might not have experienced such a shake-up. Giving in just inspired them to keep going.”

  ALEC limped through 2012, and by the end of that year the organization’s board decided it needed some changes. A first move was a shake-up of the PR department. ALEC recruited Wilhelm “Bill” Meierling, a conservative who’d put in his time in the public relations trenches—at Edelman, as director of PR at United Way, and as a lecturer in crisis management. ALEC started to pivot. To undercut the “secrecy” line, it posted all its model policy and IRS documents online. Any citizen had already been able to go look up ALEC’s IRS forms, but the move at least helped take away a few of the tired liberal talking points. The organization boldly began promoting its initiatives again and actively recruiting new companies.

  Meierling couldn’t have arrived at a more important time. A vast array of liberal organizations began to coordinate a national campaign against every aspect of the conservative group’s work. Some of these attack groups were old, some new, some old-fashioned, some new media, some nearly fictitious. All were connected.

  In one stovepipe are the usual characters that go after companies in proxy battles—the As You Sow network. Walden Asset Management. Trillium. The Center for Political Accountability. The floods of disclosure proxy resolutions these groups file routinely started containing demands that companies divulge their contributions to ALEC specifically. And the backroom pressure for “voluntary” disclosure is often aimed at extracting promises that companies won’t make further donations to ALEC in particular.

  In another stovepipe are the supposed watchdog groups such as the Center for Media and Democracy, designed to keep up a steady drumbeat of nasty headlines about ALEC and to feed them to receptive journalists at left-wing outlets such as the Nation or the Daily Kos. The watchers and the journalists are in some cases literally married. Liberal journalist John Nichols, the national affairs correspondent for the Nation, loves to bash ALEC. In 2011 he wrote a giant feature entitled “ALEC Exposed” in which he praised the work the Center for Media and Democracy had done to educa
te about the “procorporate strategy of this powerful right-wing group.” Nichols is married to Mary Bottari, who is deputy director of the Center for Media and Democracy.

  In yet another stovepipe are activist groups, among them Common Cause (“a nonpartisan citizen’s lobbying organization promoting open, honest and accountable government”), Forecast the Facts and the Energy Action Coalition (two green groups focused on climate change), Color of Change, MoveOn.org, and the Citizen Engagement Lab (“a pioneer in using new media and technology to advance meaningful social change”). They launch online campaigns and social media events, as well as stage demonstrations and pressure campaigns against ALEC directly. They also ally with liberal think tanks such as the Center on Budget and Policy Priorities and the Center for American Progress.

  Another stovepipe is the unions. The SEIU. The AFL-CIO. The American Federation of Teachers. AFSCME, the American Federation of State, County and Municipal Employees. They supply people, manpower, and influence in Washington.

  They may look disparate, but most of the groups are bonded by the same political Gorilla Glue. Many are funded by George Soros or by umbrella liberal financier groups like the Democracy Alliance. Many shared the same professional PR organization, FitzGibbon Media, a D.C. outfit that specialized in promoting liberal causes. (FitzGibbon shut down at the end of 2015.) Many share or trade the same staff. The Citizen Engagement Lab was cofounded by an activist who had also helped found Color of Change and worked at MoveOn.org. Jay Riestenberg, a principal agitator against ALEC, helped organize for Obama at his college campus in 2008. He consulted for labor and progressive groups, then went to the Center for Media and Democracy, and then to Common Cause. Another top anti-ALEC agitator is Nick Surgey, who moved in the opposite direction. He worked for a time as staff counsel at Common Cause, but ultimately ended up at the Center for Media and Democracy. There is a lot of job swapping, but the same names are always targeting ALEC. And the groups work in tandem. Walden will send a letter to a company about ALEC. Common Cause will promote it. MoveOn.org will tweet it. The unions will repeat it.

  Many of the groups also front multiple entities, making them look far more fearsome than they are. The Center for Media and Democracy is a “national media group that conducts in-depth investigations into corruption and the undue influence of corporations”—and spends much of its time bashing ALEC. It also runs PR Watch, an organization that reports on “spin and disinformation”—and spends much of its time bashing ALEC. It also runs SourceWatch, a wiki that “tracks corporations”—and spends much of its time bashing ALEC. It also runs ALEC Exposed, which is outright designed to bash ALEC. All these groups are run by the same handful of people out of Madison, Wisconsin. Yet get all the groups firing off press releases and reports against ALEC at the same time and it looks as if a veritable army of “watchdog” groups are all calling out the conservative organization. Which is the point.

  ProgressNow—which promotes “progressive ideas and causes” (such as bashing ALEC)—employs a similar ruse. The group now boasts a number of state chapters—Progress Texas, Progress VA, Bold Nebraska. Many of theses entities are registered in D.C., and it is unclear just how much staff is on the ground in the states. Yet the “chapters” add an air of grassroots, making state legislators and companies think they are under local attack. Which is also the point.

  Meierling’s task was to start combating all the misinformation, but also to blow the whistle on the incestuous and insular nature of the supposed vast opposition. And he needed to get that message to another group that was under attack: state Democratic legislators. Liberals weren’t just pressuring companies to resign. They were pressuring Democrats to quit the group.

  The anti-ALEC coalition in fact used the flood of corporate resignations as additional evidence for why Democratic legislators should abandon the group. They issued press releases against them, targeted them on their websites, and threatened to mount and support primary challengers to Democratic ALEC members. And those members did start to leave.

  “The goal was to try to reassure these Democrats that they weren’t in fact under fire from their constituents; they were getting attacked by some twenty-three-year-old in his underpants in front of a computer, many states away,” says Meierling. The ALEC team did start to make some progress—getting the message out that it was back in the game, reassuring members, recruiting new companies.

  But it turns out Meierling had only just arrived in time for round two. Congress was joining the hunting pack.

  * * *

  ALEC was holding its annual meeting in Chicago in August 2013 when the letter went public. Protestors thronged outside the Palmer House hotel. The unions came and shut down the streets. Then the anarchists came and got too violent for the unions, who left. The anarchists ultimately turned on the police who’d been sent to protect their free-speech rights, and the police lost patience and started arresting everyone in sight. It was wild.

  The ALEC board was holed up, working through business, when one CEO’s phone went off. “Beep, beep, beep, beep. I see the guy look at it, and then he shows me,” says Meierling. “And I’ve barely got a glance when everybody’s phone in the entire room all starts going off at the same time.”

  Illinois senator Dick Durbin, a member of the Democratic leadership, had just mailed out a letter to three hundred organizations across the United States that he suspected provided funding for ALEC. Durbin’s letter began from the assumption that all “stand your ground” laws were a blight on society, and that ALEC was to blame. He mentioned Trayvon Martin’s death, and complained that ALEC had yet to call for any of those laws to be repealed. The senator wanted to know where each group stood. Each organization, he said, needed to tell him: (a) whether it had “served as a member of ALEC or provided any funding to ALEC,” and (b) whether it supported “the ‘stand your ground’ legislation that was adopted as a national model and promoted by ALEC.” He intended to make the results public at a hearing the following month.

  The Durbin letter was half intimidation, half fishing expedition. The intimidation was obvious. Durbin had sent out an alert from the dais of one of the most powerful institutions in the country, explaining that any association with ALEC would earn companies and conservative groups congressional hearings, investigations, and public retribution. The simple sending of the letter was designed to scare any remaining companies away from the state group.

  The fishing expedition was almost worse. As a 501(c)(3) organization, ALEC is entitled by law to keep its list of donors private. Some companies and organizations had chosen to make their relationship with ALEC public, and paid the price after the Martin incident. But the left had squeezed all it could out of that list and needed new targets. So Durbin and his staff sat down and dreamed up an inventory of any possible company or conservative organization that might give money to ALEC. They hoped the letter would coerce a few more companies into admitting a relationship. Then the proxy activists could gin up their shareholder resolution, Color of Change could rev up the board radio ads, MoveOn.org could mobilize protests, and ALEC would lose more support.

  Durbin admitted in his letter that ALEC doesn’t “maintain a public list” of donors and that his own list had been pulled from “public documents” that “indicate[d]” the organizations had “funded ALEC at some point” between 2005 and 2013. This Durbin roster in fact seemed to be little more than his team having put any name that had ever been mentioned in the same sentence as ALEC on a list, and adding a few more for good measure. Some of the targets were downright amusing. Some poor owner of a car dealership in Louisiana got a Durbin letter, simply because ALEC had once done an event on his lot.

  Durbin, like all liberals, disliked ALEC—although the Illinois Democrat had a particular, self-interested reason for trying to take the group down. More than most Senate Democrats, Durbin is a creation of the trial bar. Over his career, he has received more than $5 million from lawyers for his reelections, more than three times the a
mount of his next-biggest-donating industry (securities). ALEC over the years had been particularly successful at marching tort reform through dozens of states. Some fifteen had adopted reforms requiring more transparency or oversight in the state hiring of private attorneys. Another fourteen had reformed the method by which defendants pay interest on judgments. States had passed medical malpractice reform, class action reform, asbestos legal reform, and reforms on forum shopping and expert testimony and damages. Durbin’s donors needed ALEC shut down, as did Durbin if he wanted to keep getting their money.

  And so one of the most powerful men in the land sent a letter demanding that companies give him donor information to which he was in no way entitled and that was protected by law and the First Amendment. He also leveled the threat that those who did not comply would face Congress’s wrath. If it hadn’t been so serious, it might have been amusing that Durbin sent the letter from his seat as chairman of the Senate Subcommittee on the Constitution, Civil Rights, and Human Rights.

  Up to now, ALEC had been on its hind feet. But Durbin miscalculated. He seemed unaware that ALEC had revamped its PR shop and moved into fight mode. Durbin had also sent his letter during ALEC’s annual meeting, figuring it would cause internal disarray. It had the opposite effect. “Everyone that mattered was all in the same room; we were able to articulate a plan of action,” says Meierling. “It galvanized us, because no one could believe he’d do such a thing.”

  Indeed, no one could believe Durbin would do such a thing. A bunch of liberal groups bashing ALEC and boycotting companies was one thing—the press had little interest. But a sitting U.S. senator using his position to harass private organizations caught attention. Newspaper editorial boards across the country lambasted the Democrat—the Wall Street Journal, the Orange County Register, the Washington Times, Investor’s Business Daily. Illinois’s newspapers roundly slammed his letter. Durbin’s own hometown Chicago Tribune published a blistering critique under the headline “Durbin’s Enemies List.” It scoffed at the senator’s claim that he was looking into “stand your ground” laws: “If only thinly coded letters from senators with as much clout as Durbin were that benign. Because it would be more than wrong for a U.S. senator to use the power of his high federal office as a cudgel against his enemies.”