The Intimidation Game (29 page)

ALEC has even dealt with Democratic saboteurs. Chris Taylor, a lawyer and Democratic member of the Wisconsin State Assembly, took to attending ALEC meetings so that she could take videos to post and write diaries about her time in the “ALEC Otherworld.” Anti-ALEC forces have also encouraged liberal-leaning local news crews to plant hidden cameras to tape meetings of ALEC meetings outside of ALEC premises.

They've started using ALEC membership against the GOP, too. That was a new theme in the 2014 election, when Democrats smeared Republican Senate candidates for their ALEC ties. Not long before election day the AFL-CIO blanketed Iowa with flyers complaining that Senate Republican candidate Joni Ernst had “accepted donations” from companies also supporting ALEC, including a “tobacco company,” “oil companies,” and “billionaire industrialist Charles Koch.” As a headline in the liberal publication
Mother
Jones
put it, “Labor's New Attack on Iowa Senate Candidate Joni Ernst: She's an ALEC Shill.”

And then of course there's the personal harassment. Folks like Lisa Graves, the executive director of the Center for Media and Democracy, essentially stalk Nelson and the ALEC team. They monitor Nelson's Facebook and Twitter feeds, commenting on her every action or thought. Nelson in early 2015 attended a private gathering in D.C. at which Wisconsin governor (and soon-to-be presidential candidate) Scott Walker attended. Nelson, purely for the fun of her Facebook friends, posted a picture of herself with him. Within a few hours, Graves had grabbed the photo and tweeted it out, suggesting that Nelson was plotting with Walker over a right-to-work law in Wisconsin. “These people do this all day long. Their very existence is about coming up with ways to track our movements and go after us,” says Nelson.

Since 2012, ALEC has had to gear up every late February for the anniversary of Trayvon Martin's death—where somebody, somewhere, intends to make a scene. One anniversary, its headquarters in Crystal City, Virginia, right outside of Washington, received a coffin draped in an American flag. ALEC is the only nonmilitary establishment in the office complex it inhabits; it's common to see men and women in uniform strolling about. “That coffin,” says Meierling, “didn't earn those protesters much favor. It sent a bad message. These people. They have no class.”

ALEC, for all it has endured, is a hopeful tale. A lot of targets of intimidation succumb to the pressure. ALEC did for a bit, but then it started to fight back. It's learned a lot from the experience, and it has single-handedly started changing the dynamic.

In some ways, it hasn't yet fully recovered. Nelson notes that ALEC used to boast that it was a five-hundred-member organization. Now it pitches itself as a three-hundred-member organization. “That eighty to one hundred that left in 2012, that was a big blow,” she says.

Then again, it is working more closely with those that remain. The exposure ALEC gave to the Durbin and Google events were teachable moments for the wider conservative and corporate worlds. Nelson believes a big part of her job today is education—coaching entire corporate teams about the new intimidation dynamic. “A lot of what we do now is trying to educate companies—and beyond just the state- or federal-government-relations people. We say, ‘Look, this is the new normal. You are going to get hit all the time. You are going to get hit in all kinds of different ways. They are going to tell you that you can no longer take part in the debate. So you need to take a deep breath, understand what is happening, and be able to communicate it to your C-suite. You need to be able to explain that while this may feel like a threat, it is only a threat if you respond and give in. Pushing back is the best way to make them stop.'”

And she keeps pointing out the lessons ALEC itself has learned: “We are trying to explain to companies the benefit of saying, at the outset, ‘Go away, because we're not going anywhere; we give to both sides, we engage in debate.' If they are definitive, the other side does go away. If they respond and tiptoe around, and say, ‘Well, we might not renew in ALEC,' and hem and haw, well, that's the kiss of death, for them and for us. All they are doing is inviting more harassment.”

Nelson feels lucky that she can highlight profiles in courage. And there have been many. Folks like AT&T. Or Pfizer. Or UPS. There have been nearly as many as the capitulators. Sometimes that courage comes down to an individual in the organization who resents the pressure and understands that the worst course is to give up. She's been grateful for some industrial sectors, which already understood the situation. “You look at the energy sector—they've been great. They've been under attack for years. Maybe not in the personal, ugly, direct way that has now come to dominate, but still, under attack. And they know from experience that giving in just makes it worse.”

Worse is the operative word. Says Nelson, “The thing everyone in the corporate world has to understand is that these people don't have one ask. You can't negotiate. You can't deal. They want one victory, and then another, and it is all aimed at the end of you. They aren't going to be happy until you are gone.” She refers to her continued mixed feelings on the organization ending its Public Safety and Elections Task Force. “It's gone, but now they are trying to disband our energy task force, and our health care task force. We gave them reason to hope they could.”

She notes too that the ALEC campaign has spread to other nonprofit organizations. That includes the State Policy Network, an umbrella organization of conservative think tanks such as the Goldwater Institute, the Manhattan Institute, the Hudson Institute, and the Pacific Research Institute. The Center for Media and Democracy has now branched out from its ALEC campaign and runs what it calls Stinktanks.org, a website devoted to trashing the conservative innovation world, targeting it just like ALEC. “We got the first wave, but everyone is now realizing that they are targets too. We either all stand up to this or we are all a target,” she says.

Nelson is also recruiting different, newer, braver types of backers. ALEC still cares about those big companies, but it has come to realize that a lot of the real fighters—those who still truly care about free-market principles—are smaller businesses that aren't in bed with government, that have a real stake in the state-level fights that ALEC wages. “The federal government has been a depressing place for limited-government advocates through the Obama years,” she says. “The real power lately is in the states, and there are so many companies that are in the start-up model. They are young and aggressive and care about a smart business environment.” As of the end of 2015, Nelson had recruited fifty-four new members.

Mostly what ALEC and Nelson have learned is that it's a brave, new, and very ugly world, one that requires a brave, new, and very determined mind-set. Nelson came of age in the riotous Gingrich years, and “back then, we thought we played tough.” She laughs. Then she grows serious. “That's nothing. It's nothing compared to today, to the politics of personal and institutional destruction. We used to try to outdebate the other side. These people? They don't want debate. They don't want democracy. They want you gone. They play for keeps. And you'd better be ready.”

Eric O'Keefe
was on a visit to Madison, Wisconsin, on October 3, 2013, when his phone buzzed. It was a cryptic text from an old friend and colleague, political consultant R. J. Johnson. He indicated that O'Keefe should go see his attorneys. They were in possession of something he needed to see.

O'Keefe is the director of the Wisconsin Club for Growth, a conservative outfit that pushes for lower taxes and smaller government. The club had only just finished playing a role in defeating the 2011 and 2012 union-led recall efforts against Governor Scott Walker and Republican legislators. Its headquarters is in Madison, and so a few hours later O'Keefe met there with club attorneys. The lawyers definitely did have something he needed to see. A subpoena.

A six-page subpoena, to be exact, which informed O'Keefe that he was the target of an investigation by Wisconsin prosecutors for supposedly breaking campaign finance laws. O'Keefe admits that the full force of the document didn't immediately hit him. But something did jump out.

The subpoena's sweeping demands included all of O'Keefe's correspondence going back to April 2009 with dozens of people—whose own names were listed on its first page. O'Keefe blinked at the length of time the document covered, but also at the list of names. Among several visible political figures were also listed lots of small vendors to, and fund-raisers for, the club. The government would have been hard pressed to know the club had such associations. “That's when I realized they had been spying on us for some time. There was no way they could have had those names otherwise,” he says. He'd only later find out that prosecutors had already gone to all his Internet service providers and subpoenaed every conversation he'd ever had. They'd done the same to at least seventeen other people.

In addition to his correspondence, prosecutors wanted every document related to the club's work on campaigns, and every draft of related material. And they didn't just want documents related to Wisconsin. O'Keefe also works on national political issues; they wanted all that, too.

But the most sinister part of the subpoena was this: “This John Doe search warrant is issued subject to a secrecy order. By order of the court pursuant to a secrecy order that applies to this proceeding, you are hereby commanded and ordered not to disclose to anyone, other than your own attorney, the contents of the search warrant and or the fact that you have received this search warrant. Violation of the secrecy order is punishable as contempt of court.”

It was almost Orwellian. Prosecutors were using speech laws to go after O'Keefe, while simultaneously telling him he couldn't speak to anyone about it. The conservative wasn't sure at this point how serious this was—“my head was whirring”—but he had little doubt about its motivation: It was a revenge attack for the success his side had had in defeating the recent recalls. The club had been extremely cautious in its election work, making sure to go nowhere near any lines. So nothing else made sense.

O'Keefe called his wife, Leslie Graves. In doing so, he was already breaking the law. He didn't care. O'Keefe has fought for the First Amendment his whole life, and in the time it had taken him to read the subpoena, he'd already decided that he'd never follow the gag order. Graves wasn't sure what to think of the subpoena either, but suggested hopefully that it might just be some minor complaint—nothing to worry about.

O'Keefe departed for a Bible study group he attended in Madison. On the way, he put in another call, to an old and close mentor, a man in his seventies—a Vietnam veteran, and a hard-nosed political observer. O'Keefe never made it into the study group; he sat in the parking lot on the phone for an hour, working through his worries. His buddy was far less sanguine about the subpoena; it meant trouble. O'Keefe remembers that his friend then said what to this day remains “the biggest compliment I ever got through this whole ordeal. He said, ‘I'm sorry this has happened. But since it is happening, I'm glad you are the one in it.' And that helped to focus me.”

The subpoena hit on a Thursday. O'Keefe and Graves left the next morning for Chicago and then to a meeting in Kohler, Wisconsin, with other conservative activists. That's where they learned that O'Keefe wasn't alone in getting a subpoena. Thursday had witnessed a dragnet. Prosecutors had in one day delivered them to twenty-nine separate conservative organizations across the state. O'Keefe also found out that those who'd received their subpoenas through their attorneys, like him, were the lucky ones. Other Wisconsin targets hadn't been treated so politely.

Johnson, the political consultant who'd first texted O'Keefe, had been in Atlanta with his wife, fund-raising for a charity. His sixteen-year-old son was alone in their rural Dodge County home. In the dark morning hours of that Thursday, a Milwaukee County investigator ushered a troop of armed law enforcement officers into the house. Johnson's son was not allowed to call his parents. He was not allowed to call his grandparents, who lived only a half mile away. The boy had the wits to ask to call a lawyer. He was told no. As Johnson would later sum up to the
Wall Street Journal
, “He was a minor and he was isolated by law enforcement.” Armed deputies stood by him while investigators tossed the house, hauling off documents and technology. Johnson's son was told that the gag order applied to him. If he told anybody what had happened, he could go to jail. When he finally arrived at school, two hours late, he couldn't tell anybody why he was so upset.

Deborah Jordahl, Johnson's business partner, was still in bed at 6 a.m. when she heard noises and saw lights in the yard. An armed Dane County deputy sheriff rang her doorbell and presented her and her husband with a search warrant. Jordahl asked for permission to wake her children on her own, so they wouldn't be scared. Permission denied. The deputy sheriff accompanied her into each room. Jordahl would later find out that her son, upon waking and seeing a police officer, thought for several minutes that his father was dead.

The deputy herded them all into the family room and read the warrant, including the gag order. Jordahl's fifteen-year-old daughter sat on the sofa, weeping, as the deputy explained that the kids were also subject to consequences if they spoke. When the deputy was done, Jordahl got up to call her lawyer. The officer backed her onto the sofa and explained she wouldn't be calling anyone. And indeed, Jordahl would have been hard pressed to do so even later. After going through every closet and drawer and combing through the basement and the family vehicles, the police department left with her phone, her husband's phone, both their computers, the kids' computers, hard drives, iPods, an e-reader, a voice recorder, pocket calendars, and her files.

Jordahl later found out that most of this was unnecessary. It was simple harassment. Long before the raid, the police had already subpoenaed her e-mails, her text records, and her phone records. Police also raided the homes of former Walker aide Kelly Rindfleisch and Walker chief of staff Keith Gilkes.

When people hear the story of these predawn raids, they are appalled and outraged to think this happened in America, and over allegations of
campaign finance regulations
. O'Keefe and Johnson and Jordahl weren't accused of murder, or racketeering, or drug-running, or some elaborate white-collar crime. They were accused (falsely, as would be proven), and subpoenaed, and searched, for supposedly violating highly technical speech rules. About 95 percent of such cases are handled in civil proceedings. It is extremely rare for a campaign finance violation to trigger a criminal prosecution, and only then when it is clear that an actor deliberately and elaborately schemed to evade the law. Even then, it is unheard of for such an accusation to initiate police raids, isolation, and denial of legal counsel. It's like imposing solitary confinement on jaywalkers.

O'Keefe and Graves didn't find out about the Johnson and Jordahl raids until Monday morning, when they arrived back at Madison and ended up at the consultants' office. “They looked terrible. I don't know when they had last slept,” remembers O'Keefe. Johnson was also under a gag order, yet he confided to O'Keefe that his home had been raided. “I don't care if I go to jail for telling you,” O'Keefe remembers him saying, his voice pure exhaustion. The three targets spent an hour debriefing, and O'Keefe arranged for his Kansas City attorneys to be at his home the next day. That, too, was a long day.

O'Keefe was nervous, but had already decided he would fight it with everything he had. He remembers sending an e-mail almost immediately to one of his lawyers. It read, “Hey Eddie. I've already drafted a response to this subpoena. It's two words long, and the second word is ‘you!' Think you can put that into legalese?”

O'Keefe was right—it was revenge, and frustration. Wisconsin led the GOP progressive reform movement of the early twentieth century under Governor Robert M. La Follette, the first state to institute a workers' compensation law, and among the first to institute unemployment insurance and collective bargaining. That state identity shifted pretty seamlessly in the 1950s to life under Democrats. And Wisconsin stayed purple-blue right up to 2010, when, in backlash against its faltering fortunes and Obama policies, the Wisconsin electorate put in the governor's mansion a young and dynamic reformer by the name of Scott Walker.

Walker had been Milwaukee County executive, a powerful post, and his focus on reducing the size and scope of government had already earned him Democratic enemies. He brought the same fiscal conservatism to the governorship, and a new idea for implementing it. In 2011, he proposed a bill that limited collective bargaining for public employee unions. It was an innovative and overdue reform. Public-sector bargaining is a racket. Government unions pour money into electing Democratic politicians, who then hand unions generous pay and benefits, who then pour that money back into electing more Democrats. This unvirtuous circle is why even Democrats like FDR and Jimmy Carter opposed federal collective bargaining. Walker's reform was structural, and it held the potential to slash government spending, reform the state's bloated pension program, and bust up schoolteacher monopolies all in one go.

The left saw the threat for what it was in the state. But it also worried that Wisconsin might prove a model for other states. Walker's proposal therefore ignited a national firestorm. Unions and more than seventy thousand activists from around the country poured into the capital, protesting and thronging its halls. Obama weighed in, berating the measure. At one point, all fourteen of Wisconsin's Democratic state senators fled to Illinois, to thwart the necessary quorum to pass the bill. The governor didn't waver, and Republicans managed to push through the legislation. Walker signed it, and a court fight ended with the state's highest judges upholding its provisions.

The right saw Walker's victory as epic. The left saw it as a calamity.

In the calamity corner sat Milwaukee district attorney John Chisholm, an avowed Walker opponent. Chisholm was elected as a Democrat, and with widespread union support. His wife was a teachers' union shop steward. He was never shy about his political leanings. At least forty-three (possibly as many as seventy) employees in Chisholm's office also signed the recall petition against Walker. They were Democrats, and their fealty lay with the party. Chisholm's office—or rather his prosecutorial power—became a channel for the left's Walker rage.

Their vehicle was an investigation that had actually started in 2010, aimed at Walker's time as Milwaukee County executive. This wasn't just any old investigation. Chisholm had a particularly insidious legal tool in hand—Wisconsin's John Doe statute. It's a law unique to that state, with roots in the mid-1800s. It is designed to give law enforcement awesome powers to ascertain whether a crime has been committed, and, if so, by whom. Prosecutors in most states have to ask permission of a grand jury to issue subpoenas or force testimony. Not under John Doe. Prosecutors make the decisions on whom to harass and intimidate all on their own. And judges under John Doe have the power to keep everything secret with gag orders.

Chisholm's first John Doe was (in theory) aimed at investigating claims of theft from a veterans' fund while Walker was county executive. Chisholm would nonetheless enlarge the suit at least eighteen times over two and a half years, expanding it into a sprawling later look at Governor Walker and his campaign staff. Six people ultimately were criminally sentenced—four of them on charges that had nothing to do with the probe's original intent.

Walker was never charged, but the left by mid-2012 had developed an insane desire to take him down. He'd beat them with his bargaining bill. But he'd also beat their first effort to make him pay for it. After the state's high court upheld his reform, the unions mobilized to make a national example out of him. They launched a recall drive, gathering the requisite number of petition signatures to force six state Republican senators into recall elections in the summer of 2011, and then to force Walker into a special election in June 2012.

It was only the third gubernatorial recall election in the history of the country. Tom Barrett, the well-known and well-funded Democratic mayor of Milwaukee, stood up for a repeat of his run against Walker in 2010. National unions and liberal groups poured money into the races, intent on using the recall to send a national message: Mess with our bargaining rights, and you will be sent packing.

The left's problem: The right also understood the stakes. They knew that if Walker and Republicans lost, no other governor would risk pushing similar reforms. Conservative organizations from around the country mobilized in unprecedented fashion. The fight over those state senate elections cost $30 million—and $25 million came from outside organizations on the right and left. The Club for Growth, the biggest player on the right, spent $12 million in 2011 alone.