The Intimidation Game (21 page)

The push inspired Herman, the general counsel, to write a long memo opposing McGahn's changes, a document quickly made public. Herman, hilariously, argued that the staff was
better placed to make decisions than the commissioners
. His precise words were that sensitive FEC decisions were best left in the hands of “non-partisan, career leadership.” The nonpartisan bit practically had McGahn rolling on the floor.

Outside “reform” groups jumped in to back up the bureaucrats, accusing McGahn of wanting a staff “gag rule,” and of engaging in a “lame-duck power play.” So McGahn started publicly releasing some of the details of staff misbehavior and pushing back against the liberals complaining that he was trying to dilute FEC enforcement. “This isn't a power grab,” he at one point told a
Washington Post
reporter, explaining that the reform went to the FEC's basic credibility. “You just can't have an agency where the staff is sort of left to their own devices to come up with lists and do their own thing, because it creates such an opportunity for people to accuse the place of playing political games.”

Herman was so bitter that McGahn was questioning staff's right to run the asylum that he took the extraordinary step of publicly complaining about a sitting commissioner. The lawyer essentially called McGahn a liar, claiming that his portrayal of the general counsel's office was “not true.” He brushed off his Justice chumminess as nothing more than a routine FEC practice of responding to prosecutors' requests, and airily noted that until recently no commissioners had objected. He confessed himself “perplexed by the allegation.”

Democratic commissioner Ellen Weintraub also jumped to the defense of the staff's right to walk all over her and the rest of the commission. She insisted that the real worry was that staff “had become cowed by commissioners and it may be coloring their independent judgment.” As the debate raged, Herman up and quit. While he never gave a precise reason for leaving, the timing seemed designed to look like a protest resignation.

The Democratic commissioners refused to budge on the issue (even though they had previously said in a House oversight hearing that a manual was a good idea), and McGahn wasn't able to get the requisite four votes. When he left his office for the final time in September 2013, it was to widespread applause from free-speech and due-process advocates on both sides of the aisle for what progress he had made. Brad Smith from his perch at the Center for Competitive Politics praised McGahn for “following the law and the Constitution, not treating the FEC as a roving, unbounded, political police force.”

Still, the FEC staff retains plenty of power and ability to target and intimidate. And the Obama administration has also upped its efforts to make the FEC into a more openly partisan weapon. Democratic chairwoman Ann Ravel landed there in 2013, straight from a job running California's FEC equivalent, the Fair Political Practices Commission. She arrived with a mission to turbocharge the FEC's powers. She's proposed greatly expanding disclosure rules. She wants to give the FEC power to regulate Internet content. Most disturbingly, she wants to get rid of one commissioner, to end tie votes, and allow one party (presumably hers) to steamroll the other. With the IRS on ice, the left has turned its attention back to using the FEC against its opponents.

As Cleta Mitchell put it to the
Washington Examiner
in August 2015, “[Ravel] and Lois Lerner are peas in a pod. She wants to weaponize government agencies to shut down and chill free political speech.”

Government intimidation wasn't confined to the IRS.

Senator Susan Collins
is a Republican, but she's a Maine Republican, which means she's something a little different. The Pine Tree State is tough territory for conservatives, and Collins has held on to her seat by bucking her party on key issues. One of these is campaign finance law. She voted with Democrats on McCain-Feingold, and she has long publicly embraced greater “transparency.”

Collins was also one of those rare Republicans who, at least in the early years, expressed a willingness to try to work with Obama. So it was something in the spring of 2011, still early in the Obama tenure, to see Collins fuming and rallying the entire Congress to oppose a presidential action. It isn't easy to get her that mad.

The catalyst came on April 20, 2011. White House press secretary Jay Carney took to the podium. Yes, the rumors were true. Obama was contemplating (yet another) executive order, this one to force any federal contractor to disclose its donations to groups that participated in politics.

Those rumors had started the day before, when Hans von Spakovsky, the former Justice and FEC Republican, posted an explosive blog on
PJ Media
. “An impeccable source has provided me with a copy of a draft Executive Order that the White House is apparently circulating for comments from several government agencies,” he wrote. That order would seek “to implement—by executive fiat—portions of the DISCLOSE Act.” He quoted his source as saying, “It really is amazing—they lost in the Supreme Court, they lost in Congress, they lost at the FEC, so now the president is just going to do it by edict.”

Von Spakovsky went on to detail the contents of the order. It would require any potential government contractor, and its directors and officers, to divulge as part of its bidding process any contributions made to political parties or organizations. Even more intrusive, it would require contractors to disclose any money to independent groups that might use that money for political ads. Von Spakovsky pointed out that the focus on “transparency” for companies was largely a ruse, since federal contractors had already long been barred from making any contributions to political parties or to candidates.

No, this was a backdoor way of delving “into the personal political activities of their officers and directors—and require them to report political contributions those employees have made, not out of corporate funds (which is illegal), but out of their personal funds,” wrote von Spakovsky. It was also a way of outing otherwise anonymous corporate donations to nonprofit groups. The backlash would then intimidate companies out of such speech.

Carney was quick to spin this as “reform” and “transparency” and to suggest that U.S. taxpayers had a right to know how federal dollars being paid to contractors were being used in campaigns. Free-speech advocates rolled their eyes. The order didn't cover federal employee unions, which negotiate contracts—paid for with taxpayer dollars—far in excess of government contracts. The White House wasn't forcing them to explain how they used their dollars. It also didn't cover any of the many liberal groups (such as Planned Parenthood and environmental organizations) that suck up millions in federal grants.

The executive order brought instantly to many minds the infamous John Dean memo of that era. The point of Nixon's “enemies list,” Dean had said, was to “determine what sorts of dealings these individuals have with the Federal Government and how we can best screw them (e.g. grant availability, federal contracts, litigation, prosecution, etc.).”

The Obama order was in fact far more than just intimidation. It was a partisan threat. Federal contracts are supposed to go to the lowest bidder. But for many this was the federal government making clear that a new standard held: Contracts would go to those who were on Obama's side of the political aisle. Companies could bid and lose out for the sin of donating to Republican groups. Or they could protect their livelihoods by halting donations to the GOP altogether. It was a new twist on an old phrase. It was “not-pay to play.” And it was a win-win for the White House.

Yet Obama's penchant for issuing law-defying executive orders and regulations wasn't yet fully honed in 2011. He still needed to get reelected. He was still courting some Republicans. He was more cautious in those days.

And the blowback to the proposed executive order was extraordinary. Anger from the usual free-speech advocates wasn't necessarily a surprise, although their outrage was palpable. In an interview with me at the time, Minority Leader Mitch McConnell called the order the “crassest” political move he'd ever seen. “This is almost gangster politics, to shut down people who oppose them.…I assure you that this is going to create problems for them in many ways—seen and unseen—if they go forward.”

More eye-popping was blowback from Collins. She was all on board with transparency. But she's also no dummy. And she has an old-fashioned definition of government corruption. She'd spent many of her Senate years trying to weed out the potential for that corruption. What she saw in the Obama order was naked politics, and an order that would roll back seventy years of efforts to get politics out of government contracting.

Collins was so affronted, she spearheaded a GOP letter to the president, and at a policy lunch briefed Republican senators on its implications. The otherwise calm senator was keyed up. The whole reform language was “Orwellian,” she told me. The administration's argument that this was about disclosure was a “fraud.” The very notion “offend[ed]” her “deeply.”

It was, she said, “the equivalent of repealing the Hatch Act”—the 1939 law designed to weed out federal pay-to-play. Collins noted that it had taken decades to create a federal contracting system based on “best prices, best value, best quality.” The Obama order blew this up overnight. Quite aside from the intimidation aspect, the order might cause companies not to bid, reducing competition and raising government costs. It also, she noted, put “thousands of civil servants” who oversaw contracting “in an impossible situation.”

Other Republicans noted the surreal aspect of Obama floating this order—designed to dry up Republican donations—at a moment when he was holding fund-raisers at breakneck speed and when his supporters were bragging that he was on track to break the $1 billion reelection threshold.

Collins likely saved the day. Obama was still in a period where he was hoping to nab some Republicans for his budget and other priorities. Collins was a prime target, and her wrath over the executive order made an impression. The White House went mum on it, and it faded from memory. But it is no doubt sitting in a drawer somewhere.

Government intimidation wasn't confined to the IRS and the FEC.

The Federal Communications Commission has since the 1940s had a whole host of rules requiring disclosure by groups taking responsibility for running political ads. Those rules were pretty clear. McCain-Feingold added to the requirements, including the new demand that politicians declare on air that they “approve” of their campaign messages. These too were pretty clear.

Andrew Schwartzman, the senior vice president and policy director of a liberal outfit called the Media Access Project (MAP), in March 2011 nonetheless argued in a petition filed with the FCC that a whole world of smart people had in fact for decades been incorrectly interpreting all these requirements. The laws, he claimed, demanded far more: They required not just disclosure of the group taking responsibility, but of those who actually
paid
for the advertisement.

MAP's petition was specific: It wanted the FCC to force groups to list in public filings with the agency any financial backers who contributed more than 10 percent of the budget for a TV or radio ad. Groups that took more than 25 percent of their TV commercial budget from one donor would have to publicly identify those donors' names, on air, as part of the commercial. Schwartzman tied all this into the controversy that in 2011 was raging over nonprofits, and said the rule change was necessary to expose the shady characters behind “front” groups. “I would argue it's a relatively modest change in existing practices,” he disingenuously told the
Washington Post
.

It was far from modest. It was another part of the growing war against conservative speech. MAP, like Van Hollen, like Schumer, like Lerner, like Bauer, knew that corporations and individuals were sensitive to having their names broadcast in politics, for fear of retribution. Threaten to put their name in a commercial, and it would increase the likelihood that they'd bow out of political participation altogether.

The FCC moved cautiously—at first. In April 2012, its majority Democrats voted to force broadcasters to post online records about political advertising sold by the station. Republican commissioner Robert McDowell, in a partial dissent, pointed out that financial details about political ads had been available for inspection by the public in individual broadcasting offices around the country since the 1960s. He added that the commission, and Congress, had long felt that political information in particular should be kept locally, in order to protect broadcasters from having to divulge commercially sensitive information about the rates they charged for TV ads. And he pointed out the unfairness of the requirement, in that it only applied to broadcasters, and not to cable or radio stations or to newspapers or direct mail, which would not have to disclose the pricing of their services.

This mattered not one bit to the commission Democrats, whose only goal was to get all the spending and pricing information in one central database, the better for liberal groups to troll for targets. And indeed, the Sunlight Foundation, a nice-sounding organization that exists to beat up conservatives (it is also funded by George Soros) immediately began calls for volunteers to help it put together a “searchable, sortable database” of ad buys nationwide.

Media outlets like ProPublica were soon using the records to publish stories like one in 2012 that ran under the headline “Revealed: The Dark Money Group Attacking Sen. Sherrod Brown.” Brown is a Democratic senator from Ohio, who was running for reelection in 2012 and who had his public record highlighted in TV ads by a 501(c)(4) organization called the Government Integrity Fund. ProPublica used the FCC records to track down the man listed as the nonprofit's chairman and treasurer, who happened to be a Republican, who happened to run a lobbying firm, which happened to employ among its staff a man who happened to have worked a year earlier for Brown's Republican opponent, Josh Mandel. ProPublica cast this noninformation as a giant conspiracy, without ever explaining why there was anything nefarious about a group of Republicans running ads against a Democrat. By 2014, the Sunlight Foundation was bragging that the information had allowed it to begin to “unmask the donors behind political ad buys.”

The groups were so tickled by their progress in identifying more donors that by the end of 2014 the Sunlight Foundation (Soros money), Common Cause (Soros money), and the Campaign Legal Center (Soros money) wanted the FCC to expand its rule. McDowell, the Republican commissioner, had worried in 2012 that the broadcast disclosure rule was unequally applied. The liberal groups were happy to fix that. They wanted the FCC to expand the disclosure requirement on ad buys to cable and satellite. Advocates argued that the FCC needed to get this in place before the 2016 election. And congressional Democrats did an IRS redux, applying pressure on the agency. California representatives Anna Eshoo and Henry Waxman, along with Florida senator Bill Nelson, wrote a letter explaining that it was “imperative” that the FCC sweep everybody under new disclosure rules. By the end of 2014, the commission had formally proposed just such an expansion.

These victories were but the prelude. No one on the left had forgotten MAP's original demand, and all through 2012 and 2013, Democrats kept pushing the FCC to do what Congress wouldn't: require the full disclosure of all the financial contributors to political ads. In an early 2013 Senate Commerce Committee hearing, Florida's Nelson, joined by West Virginia Democrat Jay Rockefeller, demanded the FCC, extralegally, impose the requirements of the DISCLOSE Act. Nelson tied the issue back (yet again) to
Citizens United
, and told the FCC commissioners, “You have the statutory power. You don't have to do what we failed to do four years ago, to pass the disclosure act.” Then–FEC chairman Julius Genachowski seemed enthusiastic about the idea, calling it a “First Amendment–friendly, powerful tool.”

Republicans grew alarmed, and thirteen of them led by Senate minority leader Mitch McConnell in April wrote a letter to the FCC putting it on notice that they were watching. The DISCLOSE Act had been among the “most politically charged, partisan issues in recent Congresses,” they said, because it raised “grave constitutional concerns for speech protected by the First Amendment.” Any action in this direction by the FCC would “seriously undermine” its “integrity.” Texas senator Ted Cruz was worried enough to put an indefinite hold in the fall of 2013 on Obama's nomination of Democrat Tom Wheeler as chairman of the FCC.

Wheeler, a wealthy venture capitalist and lobbyist, had raised hundreds of thousands of dollars for the Obama election, and was clearly an Obama loyalist. Cruz in confirmation hearings demanded to know whether the nominee thought the FCC had the authority to unilaterally impose such a disclosure regime. The Democrat ducked the question, claiming he didn't know enough about the issue. Mr. Cruz informed Mr. Wheeler that he wouldn't be getting a vote until he educated himself. Cruz only lifted his hold after a meeting with Wheeler, after which the senator announced he'd been given assurances that the soon-to-be chairman had no intention of making the political disclosure issue a “priority.”

Wheeler has held to that agreement. In the summer of 2015, he argued the FCC had plenty else on its to-do list, and wouldn't be pursuing the left's disclosure wish list anytime soon. That position earned him the wrath of liberals like Marty Kaplan, a left-wing professor who wrote a scathing column in the
Huffington Post
that same month. The 2016 election would bring more anonymous ads, he wrote, and the pity was that “we'll get good and mad at the dog crap soiling democracy's lawn, but we won't even know whom to shame.”