The Intimidation Game

by Kimberley Strassel

  Campaign finance laws, too, have been turned against the Americans they were supposed to protect. Take Wisconsin, where prosecutors and the Government Accountability Board used a poorly and loosely written state statute to concoct a new definition of what counted as “illegal coordination” and to spend years persecuting independent organizations that supported Scott Walker. While Walker was certainly looked at as part of that probe, the politician was never the prosecutors’ main quarry. They were going after average Americans who had dared to engage in elections.

  The Obama administration is now attempting something similar. In March 2015, the Justice Department announced that it was gearing up to prosecute its own definition of “illegal coordination” under federal law. Justice put out a statement explaining that it intended to “aggressively pursue coordination offenses at every appropriate opportunity.” Questions of improper coordination are normally left to the bipartisan Federal Election Commission, which handles civil complaints. The Obama Justice Department was making it clear that it didn’t intend to wait for the FEC, and moreover would skip directly to criminal prosecution. The warning was meant for Republican candidates and the super PACs that support them. And no one needs to tell those players that the federal government can subpoena their documents, their e-mail, their computers, and their bank records in any political fishing expedition it chooses. These threats are made in the name of democracy.

  Yet the coordination question gets to the heart of the Constitution. One man’s coordination is another man’s freedom of association. If the National Rifle Association believes in gun rights, and Politician A believes in gun rights, why shouldn’t they confer? What is nefarious about like-minded Americans working to advance an agenda? This is what the Constitution was designed to protect—it safeguards both speech and association. Yet we have traveled so far down the complex campaign finance road that basic constitutional rights have been made to look suspicious. And that has provided an opening for government prosecutors to go after political rivals.

  * * *

  And so it’s time for a rethink.

  It’s time to rethink disclosure laws. Those rules were put in place to hold politicians and parties accountable for the money they received and spent. It’s time to remove those disclosure requirements from independent political actors—such as Tea Party organizations, or environmental outfits, or free-market advocacy groups like the Wisconsin Club for Growth. The requirement that these groups disclose their political spending serves no purpose other than to arm politicians and rivals. How does it enlighten the public to require an advocacy group to detail the spending of an independent ad campaign? All it does is strip independent political actors of the freedom to speak freely and without fear of retribution.

  It’s likewise time to remove the requirement that these groups report their donors to the IRS and other government agencies. True, nonprofits are shielded from having to release that information to the public. But they do have to submit details about their larger donors to the IRS. Those forms are supposed to be confidential, but they are hardly safe. The IRS was caught leaking donor information to the press. There is good reason to believe the service used donor reports to single out and audit Republican contributors. And state attorneys general are moving to change state law to require that these IRS forms be made public. The government has no right to this information.

  If the government believes that such a group or a donor has violated the law or engaged in fraud, it can go to court and make the case that it has a right to subpoena financial information. But the burden ought to be on government to make that case. Private actors should not be required to automatically provide all the details and make it easier for the government to conjure up supposed crimes and to exact retribution.

  It’s time to rethink how disclosure is applied to the political class as well. Some conservatives in recent years have proposed that disclosure should be limited to contributions to (though not spending by) candidates and political parties. The argument is that Americans arguably might benefit in knowing who is donating to elected politicians.

  Maybe so. Then again, even this type of disclosure gives the government—in particular incumbents—extraordinary power. In 2010, a professor, James Huffman, ran for a Senate seat in Oregon. He lost. The next year, he ran a piece in the Wall Street Journal describing his experience with disclosure.

  “Here’s how it works. A challenger seeks a contribution from a person known to support candidates of the challenger’s party. The potential supporter responds: ‘I’m glad you’re running. I agree with you on almost everything. But I can’t support you because I cannot risk getting my business crosswise with the incumbent who is likely to be re-elected.’

  “Sometimes he adds that he has matters pending before a federal agency. Or that she has been working with the incumbent on legislation that will benefit their company. Or that he has a government grant pending.

  “I heard these responses literally dozens of times in my campaign in Oregon. Sometimes I was told that someone on my opponent’s staff had called with a reminder that supporting me was not a good idea.”

  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. It is driving average Americans out of the political arena, surrendering the space to the very “powerful” players that the left claims to worry about. Those billionaires have a right to speech, too. But they deserve to be challenged by smaller players.

  It’s time to rethink transparency requirements on government. The Republican Congress included in its spending bill at the end of 2015 a provision barring IRS employees from using private e-mail for work. That bar ought to be imposed on every employee of the federal government. Modern technology makes this very “convenient”—to use Clinton’s words. Any smartphone gives users the ability to seamlessly switch from one e-mail account to another. There should never be any excuse for using private e-mail.

  It’s difficult to think of any federal employee’s excuse for sacrificing their obligation to transparency. They serve the American people, and have a basic duty is to preserve a record of their work. 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.

  It’s also time to strip federal agencies and employees of the ability to harass citizens and political actors. An easy first step is the aforementioned proposals to deny government the financial records of independent political actors and smaller donors in the first place.

  That 2015 year-end spending bill also included a provision barring the SEC from moving ahead with its corporate disclosure rule. But Congress might consider legislation that formally prohibits federal agencies from willy-nilly ginning up their own political disclosure requirements. The power to force citizens to provide records of their political activity to their government is an awesome one and should never be in the hands of unaccountable federal bureaucrats. Disclosure is a policy for Congress to debate, in the open and under the scrutiny of voters.

  Agencies need more enforcement manuals, of the type Don McGahn tried to get at the Federal Election Commission. Those manuals need to spell out in exacting detail the rules
that government employees must follow when dealing with questions of political speech. The onus needs to be on the government to justify its investigations, rather than on Americans to justify their speech.

  It’s time to rethink the oversight of speech and to put it back into the hands of the bipartisan federal body that was created to oversee elections and spending: the FEC. The IRS is a tax agency. Its only duty should be to collect tax information and verify that Americans are correctly filling out their tax forms. The agency never had any business judging the political motivations and actions of nonprofits. Congress needs to clarify the rules of engagement. If the IRS believes, on the basis of a tax report, that a nonprofit has violated a rule, its job should be to refer that nonprofit to the FEC commissioners who specialize in campaign law. Those commissioners have the added benefit of having been appointed by the president and confirmed by the Senate. They are accountable. Lois Lerner was not.

  It’s time to rethink campaign finance laws, at both the federal and state level. This was what Wisconsin did in the wake of the John Doe scandal, and the resulting law is now one of the better ones on the books. These revamps need to provide better protections for political actors, and to strip away the ability of prosecutors and regulators to subjectively apply the law.

  It’s time for Americans, and conservatives in particular, to rethink their views on corporate speech. It’s easy to buy into Obama’s populism, to join the rabble that accuses corporations of harming the country. In fact, free enterprise is a foundation of American democracy. It is what has made the country great. 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.

  It’s time for corporate America to help Americans do that, by earning their trust. They cannot expect other Americans to stand up for their free-speech rights when they lack the courage to stand up themselves. And they can’t expect Americans to respect corporate speech when such speech is aimed at garnering crony government handouts and special favors.

  It’s time for the left to reevaluate its history and wonder what went wrong. The left was once the party of Vietnam War protests, and bra burning, and Woodstock. It railed against the establishment, and defended the right of everyone else to do so, too. The Democratic Party opened itself up to competing voices. The party that made Nancy Pelosi the first woman Speaker of the House in 2006 was as diverse and big-tent as at any time in its recent history. It encompassed southern Blue Dog Democrats, and West Virginia coal miners, and blue-collar and green-collar unions, and Northeast liberals, and Alaskan libertarians. But as Obama imposed his agenda, and as the public turned against that agenda, the Democratic Party and its allies turned inward, circled the wagons. First they drummed out dissent from within their ranks. (There is today not a single white southern Democrat in the House.) They are now attempting to shut down debate across the country.

  It’s time for the right to guard against doing the same. This book related instances where Republicans sought to use speech laws against their political opponents—the Bush IRS’s pursuit of a liberal California church; the conservative pressure on FEC commissioners to shut down liberal 527 groups. True, over the years the conservative movement has by and large come to recognize the tyranny of campaign finance and disclosure laws. It has had to. It has been on the receiving end.

  Even so, the temptation by Republicans to use those laws for their own purposes remains. At the end of 2015, Senate majority leader Mitch McConnell and free-speech advocates like Brad Smith moved to include in the year-end spending bill a provision that would have lifted the limits on how much political parties could spend in coordination with their candidates. It would have been an enormous free-speech victory.

  Instead, self-styled House conservatives objected. They complained that such a provision would empower the “establishment.” Their only interest was in preserving a system that they calculated would better benefit them politically. Instead of celebrating an expansion of free speech, they made a crass political decision. If conservatives ever hope to live up to their limited-government and liberty principles, they will have to find it in them to stand up for the First Amendment all the time—not just when it suits.

  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. It’s time for those free-speech legal scholars to think hard about the cases that they bring to the courts, and to craft ones that require the judiciary to confront today’s speech and disclosure realities and to recognize the degree to which the campaign finance regime has been aimed at citizens.

  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.

  The Constitution guarantees certain liberties, but those promises are only as good as the society that they seek to protect. Every American has an obligation to demand those rights, to exercise them, and in doing so, to strengthen them.

  Only then do the intimidators go away.

  Acknowledgments

  Things I learned while writing a book:

  I’ve learned that book editors are wonderful; that some are more wonderful than others; and that mine, Sean Desmond at Twelve, is perhaps the most wonderful of all. I can’t thank him enough for his boundless guidance, encouragement, and patience. (Dana, thank you for the introduction!) I’m grateful to Deb Futter, Brian McLendon, Paul Samuelson—and all the team at Twelve—for their belief in this project and for all the hard work.

  I’ve learned why people hire book agents. Jay Mandel was there at every right time, saving me from mistakes I didn’t even know I was making. And doing it with such grace that I only much later realized I’d been saved. I’d have been at sea without his knowledge and support, and I can’t thank him enough.

  I’ve learned that the most successful writing happens when surrounded by the best and the brightest—which includes the amazing crew at the Wall Street Journal editorial page. Most of this book is based on events I covered for the page, and all that coverage was made better by the daily insights and creativity of my colleagues. A special thanks to Paul Gigot, who just let me get on with this book—despite the looming prospect of election-year coverage.

  The WSJ’s Collin Levy blazed her own trail on many of these free-speech themes, and I owe her endless gratitude for laying the foundation upon which I rested key parts of this book. Brilliant writer aside, she’s also my best friend, and she has helped me these past eighteen months in ways that can’t be described in words. Love you, dear.

  I’ve learned deeper appreciation for the people and institutions that drive and support freedom. That includes men like Thomas W. Smith, whose foundation is an extraordinary force for liberty. My thanks to Steve Moore for the introduction, and to Tom himself for proving such a champion. My big thanks, too, to Larry Mone and the Manhattan Institute for all the support.

  I’ve learned that everything we are really does come from our beginnings. I’d have never had the ability or the endurance for this project were it not for a mother who devoted so many nights reading to me as a child, and a father who always showed us that we must work for what we want. It was also a comfort all along to know my three sisters would have my back even if this book proved a monumental failure—beer, and homemade wine, to hand. The Strassel Girls.

  I’ve learned just how much community is a source of strength. I love my Hillsboro crew, and I send a huge shout-out to Nez and Steve Morgart, Amy and Jonathan Ressler, and Kim and Henry Stribling. I’d never have survived the writing of this thing without dog-watch-sharing, emergency washing-machine use, and late-night firepit wine breaks. There are als
o the PTA goddesses, Karen Burbage and Tauvas Johnson; the yoga queen, Carol Lenhart (just breathe); and dozens of teachers and coaches and sports parents and charter-school heroes who showed endless support and encouragement.

  I’ve learned that nothing wipes away book worries faster than a child’s laugh. At the same time, I’ve learned that few things motivate book completion more than a ten-year-old who gets up every morning and counts down, on the dry-erase board, how many more days until your book deadline. Or an eight-year-old who, every time she walks by the dining-room work center, exclaims: “Geez, Mom, aren’t you done yet? How hard can it be?” Or a four-year-old who grumps: “I hate this book-writing thing!” A particularly heartfelt and special thanks goes to Matthew, who always told me I could do this, and who spent many hours helping me figure out the initial direction and many boring hours more watching me work. He never stopped encouraging me, even through the roughest times.

  I’ve learned the unexpected joy of new friends and places. One day you are just going along, and an old family friend named Gene Braukman calls and suggests you go salmon fishing with him in Alaska. You do, and the boat breaks, and you end up at the shop of one Nick Van Dyke, where you are introduced to tepee fires and bar trailers and extraordinary mountains and a lot of fun Wasilla moose hunters. You get a chance to slow down, breathe, and you remember you always wanted to write a book. Thank you, Nick and Gene and Nancy. And thanks, too, to Bill Waibel, and Dan and Brett and Deena and Audrey and Larry.