The Intimidation Game (3 page)

And on and on and on and on. From the first, Kenney knew there was something gravely wrong with these questions. The IRS had always been easy about bestowing tax-exempt status. Its bureaucrats perform basic due diligence—make sure the forms are filled out correctly, check that the organization isn't blatantly or erroneously applying. Assuming all is in order, the tax-exempt letter goes out. And correctly so. The IRS, after all, is a tax agency. Its job isn't to question the motives of an organization, but to examine its
later
spending—after it files its first tax reports—and make sure it followed the tax rules. That's why, between the years of 2001 and 2011, the IRS issued tax-exempt letters to more than fourteen thousand social-welfare organizations. It turned down only fifty-six.

There are rules, of course. Organizations like Kenney's are allowed to participate directly in politics (even going so far as to endorse and directly support candidates) so long as this doesn't constitute a “majority” of its efforts. The IRS looks at those first-year tax forms with an eye to verifying that a group is devoting at least 51 percent of its resources to its “primary” purpose. The easiest way to test this is just to look at spending. If a 501(c)(4) blows 60 percent of its money on ads calling for the reelection of a senator, it likely loses its nonprofit status. And it's simple to check. Any organization—a party, a trade association, a super PAC, a nonprofit, an individual—that runs an ad expressly calling for the election or defeat of a candidate is required by law to file reports on that spending with the Federal Election Commission.

Kenney had barely started the process. She'd never filed tax information as a nonprofit. She'd never advertised in an election. The IRS knew all this. Yet here was the agency asking about her motives and views and associations, and suggesting that her answers would guide whether she could get even initial status. Kenney went from “oh shit” to “what the hell?” Why did the IRS need a copy of every web page? Why all the board meeting minutes? Why did it need to know if SFVP attended protests? Why did it need the names of every other nonprofit Kenney had ever spoken to? What earthly value was there in explaining whether current and past board members were related?

The interrogatory felt to Kenney to be both sweepingly broad and terrifyingly specific. Lots of questions had little to do with SFVP's particular circumstances, suggesting that the IRS had unthinkingly mailed it a standardized form. Then again, it contained detailed questions that made clear it had been monitoring SFVP. One demanded that Kenney provide details of its “relationship” with the Tea Party Patriots—a nationally recognized Tea Party group. Kenney was particularly incensed by question number 29, which read, “Provide details regarding the townhall event planned on February 13, 2012, with Newt Gingrich.” Mr. Gingrich, a presidential candidate at the time, was indeed coming to California—to attend forums SFVP had absolutely nothing to do with. (
You know what, sports fans? That wasn't even ours. Some other group, probably Republican, brought him out. I may be short, but I'm not stupid. That tells you right there how the IRS was operating.
)

What most kept drawing Kenney's eyes was the second paragraph of the IRS cover letter. It read, “The information you submit should be accompanied by the following declaration:
Under penalties of perjury, I declare that I have examined this information, including accompanying documents, and, to the best of my knowledge and belief, the information contains all the relevant facts relating to the request for the information, and such facts are true, correct and complete
.”

It unnerved her. Did she have a complete record of everything the group had done? They were an informal club, just trying to be heard. More worrisome were the subjective questions. What did the IRS view as a “protest”? Were events at which participants spoke up for the Constitution—and so spoke against Obama policies—protests? What did it mean to “indirectly” communicate with members of legislative bodies? Did signing a petition count? If a member told the group about an issue of interest, was that educational?

Looking at the questions, Kenney was pretty sure the IRS had it in for her group. And she'd be on the hook if it decided her version of “true and correct” didn't match its own.

SFVP was no stranger to intimidation. Democrats had managed in a few short years to make “Tea Party” a dirty term and object of political scorn. Kenney and friends had in their early outings worn Revolutionary-era tricorne hats to pass out copies of the Constitution. They stopped wearing them after people spat on them. Kenney would post her upcoming events online, and left-wing groups started staging counter-rallies. At one Tax Day Rally, the local chapter of La Raza, a Latino advocacy group, showed up with speakers, drums, native dancers, and bullhorns to shout down those advocating lower taxes. Kenney had to issue instructions to her people about what to do in the face of threats. (
If you are shoved, don't shove back. If someone gets knocked down, everyone else circle that person and protect them.
Such
fun conversations.
)

She advocated that her group engage in silent rallies; these were more powerful than shouting back. One exception to this came in 2013, when Kenney's group showed up at a sidewalk event in support of Israel, with members carrying U.S. and Israeli flags. An opponent ran through the group, pushing people, calling Kenney a “fucking bitch.” He came back a second time, shoving, this time addressing Kenney as a “dirty kike Jew.” At this point some of Kenney's members (
weirdly, mostly the ones in their seventies—they have real spirit
) started agitating for a response, and Kenney had an idea. When the opponent came back around again, SFVP began shouting, over and over, “First Amendment!” He didn't run through again.

The IRS letter bore the date February 8, 2012, and it informed Kenney that she had until February 29—twenty-one days—to get her response in. Kenney doesn't always open her mail immediately—sometimes it stacks up—so when she had her “oh shit” moment, she realized that she had fewer than fourteen days to track down years of information and write answers to dozens of detailed questions. The form contained the name of an IRS official in Cincinnati she could contact with questions. She called and explained her concerns with the deadline. He kindly said she could have an additional week.

She holed up in the garage, where she keeps her SFVP boxes. It took dozens of hours, week after week, but she got the response done. Before she'd even mailed it, she received a second interrogatory from the IRS, with yet new questions. In June she'd get a third one, containing both follow-ups and new demands.

Included in that third questionnaire was an item that stopped Kenney cold. The IRS was demanding that she provide it with the names and Social Security numbers of every person who had ever donated their money or time to SFVP.

If there is one thing Kenney knows, it is the Constitution. While every American knows it guarantees freedom of speech, Kenney also knows that through that right flows others: the freedom of association, and of anonymity. She started making calls.

On a January day
in 1958, Robert L. Carter entered the Supreme Court building. The steps leading up to the Great Hall were familiar to the civil rights lawyer. Carter had worked himself up from nothing to become the top dynamo at the NAACP, the center point of the group's legal campaign against segregation. Only a few years earlier he'd presented part of the oral argument in
Brown v. Board of Education
, in which the Supreme Court had finally declared separate schools for black children unconstitutional.

This January day he was back to do something equally notable: to win a case that would shore up the First Amendment and make him legendary in free-speech circles.

Born in Florida in 1917, Carter was the youngest of nine children. His father died when he was a year old, and his mother, now living with the family in New Jersey, paid the bills by taking in white people's laundry. Carter from a young age rebelled against discrimination. At his high school in East Orange, New Jersey, blacks were only allowed to use the pool on Fridays, and only after school. Carter had read that the state supreme court banned such segregation, and so one day he joined the white students at the pool. A teacher threatened to have him expelled; he didn't back down.

He was brainy, and skipped two grades to graduate high school at age sixteen. He worked his way through Lincoln University in Pennsylvania, and then through two law schools, Howard University and Columbia. He spent the war years in the Army Air Corps, where, as the only black officer at Harding Field in Baton Rouge, Louisiana, he again ruffled feathers by integrating the officers' club. He came back to join the NAACP's Legal Defense and Educational Fund, and quickly caught the eye of the legendary Thurgood Marshall, who was at that time the group's general counsel. Marshall brought Carter along, turning him within a few years into his chief legal assistant, and the duo spent a decade dismantling segregation in education. Carter took over from Marshall as general counsel in 1956, just in time to face a new legal threat. This one threatened to dismantle the NAACP itself.

On December 1, 1955, Rosa Parks, an NAACP member, refused to move to the back of a segregated bus in Montgomery, Alabama. She was arrested. E. D. Nixon, the president of the local NAACP chapter, recruited a young black minister by the name of Martin Luther King Jr. to serve as the public face of a bus boycott. The black community organized a series of carpools to supplant buses, and black taxi drivers offered discounted rides. Black churches across the country raised money to fund the movement and pay for new shoes for walkers. The boycott wreaked havoc on public transportation, and the city tried everything to break it. It fined taxi drivers; it pressured local insurance companies to stop covering carpool vehicles; it indicted King and eighty-nine other boycott leaders. But these actions only served to bring national attention and fortify the protestors. The NAACP had, for its part, helped file a lawsuit that would result in the U.S. Supreme Court on November 13, 1956, finding the state's bus segregation laws unconstitutional. The boycott ended a month later, after 381 days, a resounding victory for African Americans nationally.

Alabama's white political leadership was angry, and none more so than the state attorney general, John M. Patterson—a Democrat who would forge a career on his opposition to civil rights. After
Brown v. Board of Education
, Patterson kept throwing up state laws to stymie school desegregation. He went after the leaders of the Montgomery bus boycott, and fought the lawsuit right up to the Supreme Court.

A short time into the boycott, Patterson decided to take aim at what he viewed as his state's chief troublemaker: the NAACP. He set his legal team to examining the organization's activities, and they came back toting a state statute governing “corporations” in Alabama. According to the flimsy legal case Patterson would concoct, the NAACP, because it was based in New York, was a “foreign corporation” and therefore required to register with the state before it could function there. Since it had not, in 1956 he filed suit with the circuit court in Montgomery demanding an injunction against the NAACP's operating in his state.

The suit was filed with Judge Walter B. Jones, himself a segregationist, who immediately granted the injunction. But Patterson wanted to do more than just put a halt to NAACP activities. He wanted to expose the group, target it, send the message that any black who continued to support it—openly or otherwise—was at risk. So he also filed a request that the court require the NAACP to hand over all its records—including a list of its members, its donors, its property ownership, and its bank statements. Judge Jones happily complied, setting a deadline for document turnover.

Carter knew exactly what Patterson was looking to do. The boycott had already led to the violent targeting of its public leaders. King's home was firebombed; so was the home of his friend and fellow minister Ralph Abernathy. Four black Baptist churches were attacked and set on fire. Whites physically assaulted boycotters.

The Supreme Court victory would cause even more violence: King's home came under shotgun fire; white men attacked a black teenager as she left a bus; snipers fired on buses, and in one incident shot a pregnant woman in both legs. Less than a month after the boycott ended, whites bombed five black churches. A few weeks after that, Klansmen lynched a black man, Willie Edwards. Rosa Parks would ultimately leave Montgomery, unable to find a job, the subject of death threats.

Carter knew an NAACP member and donor list would be, in the hands of segregationists, at best a blacklist, at worst a kill list. His organization could not and would not ever comply.

When the NAACP failed to provide the documents, Judge Jones held it in contempt and slapped it with a $10,000 fine. He warned that it would increase to $100,000 after five more days. The civil rights organization decided to legally fight the order, though in a show of goodwill it did provide a list of the names and addresses of the NAACP's officers in Alabama. That wasn't enough for Patterson, and the fine grew. The case worked up to the Alabama Supreme Court, which refused to modify or halt the fine or disclosure order. It landed with the Supremes.

And so Carter, almost sixty years to the day before Karen Kenney would receive her first IRS inquisition form, walked into the Court determined to broaden some basic rights.

The First Amendment doesn't contain a direct reference to “freedom of association.” It does, however, guarantee the right to assembly and to petition government. And starting in about the 1930s, the Supreme Court began interpreting the Fourteenth Amendment's Due Process Clause to more widely guarantee the right of Americans to gather together in private or in public, and to collectively exercise free speech.

In 1945, for instance, the Court backed up Roland Jay Thomas, then the president of the United Automobile, Aircraft and Agricultural Implement Workers. Thomas flew into Houston in September 1943 to aid in organizing workers at the nearby Humble Oil and Refining Company. A few hours before he was due to speak at a public event, he was issued a restraining order by an antiunion state attorney general, told he'd be violating a law requiring union bosses to first obtain a special license to organize new members. Thomas spoke anyway, and was arrested. He pointed out to the Supreme Court that he did not personally sign up members, did not ask for or receive funds, and did not disturb or breach the peace. All he had done was speak—and Texas had no right to stop him. The Court agreed, tying together free speech and free association: The “exercise of the rights of free speech and free assembly” are “immune” to registration.

Shoring up freedom of assembly had meanwhile forced the Court to confront another question: anonymity in political speech. The twentieth century witnessed a startling and rapid rise in the size and power of both federal and state government. What good was freedom of speech, or freedom of assembly, if citizens were too frightened by a powerful state to exercise those rights?

In 1941, a political gadfly and publisher named Edward Rumely helped establish the Committee for Constitutional Government, an organization opposed to Franklin Roosevelt's government expansion and court-packing. Rumely distributed books and literature about the Constitution to a mass mailing list. House Democrats called him in front of Congress, demanding the names of those who had bought his books in bulk for further distribution. He refused to provide them and was convicted of obstructing a congressional inquiry. The Supreme Court struck down the conviction in a landmark decision, writing, “The Power to inquire into all efforts of private individuals to influence public opinion through books and periodicals raises doubts of constitutionality in view of the prohibition of the First Amendment.”

These opinions mattered, yet the Court had mostly just flirted with the question of association and anonymity. Carter's goal on that 1958 day was to get the Court to commit, unequivocally, to both—and to tie them together. After a half hour of dry questioning from the justices about procedure, precedent, and the facts of the case, Carter was finally provided his opportunity to lay out in impassioned and precise terms the way in which anonymity was at the heart of free assembly, which in turn was at the heart of free speech. “It is our contention the entire proceeding in Alabama is void. They have no power, no authority, to oust us from the state. We have been deprived of the right to carry on our lawful activities,” he said. The power of the NAACP came first and foremost from its collective voice, from the ability of many powerless and persecuted blacks to organize and speak as one (freedom of assembly). But it also came from that group being able to operate with protection (anonymity). Had Patterson obtained the list, Carter's members “would have been subject to harm and pressure and worse, and they would have fled the organization. They'd have lost their freedom to assemble, and with it lost their freedom of speech through the NAACP.”

On June 30, 1958, the Court delivered its opinion by way of Justice John Marshall Harlan II—a fact not lost on Carter. Harlan's grandfather had sat on the Supreme Court generations earlier, where he became famous as the lone dissenter in
Plessy v. Ferguson
, the infamous decision upholding racial segregation. This Harlan, this time, led a unanimous Supreme Court in redefining free speech, and in support of an organization that had sprung into being partly to fight
Plessy
segregation.

“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association,” wrote Harlan, who pronounced it a fundamental aspect of “liberty.” And yet such liberty could be wrecked by “compelled disclosure.” The NAACP had shown that “revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion and other manifestations of public hostility.” Disclosure moreover “may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs.”

Alabama never did get its names. The case dragged on for nine years and required Carter to make four more trips to the Supreme Court. But he would in the end overturn the contempt charge, and regain his group's right to operate freely in the state. Far more lasting, he convinced the U.S. Supreme Court—for the first time—to sanctify both freedom of assembly and anonymity, enshrining new and overdue guarantees of free speech.

These were guarantees that the high court would only strengthen in years to come. Patterson's strategy for ousting the NAACP from Alabama was quickly replicated by other segregationist states and cities. By the end of 1957, the NAACP was involved in at least twenty-five separate cases seeking its membership lists. Carter would win several more cases in front of the Supreme Court, each decision fortifying the new doctrines of association and anonymity. In
Bates v. Little Rock
, a unanimous high court overturned the conviction and fines of NAACP members who had refused to provide member names as required by newly crafted tax ordinances in Arkansas. The Court, even by then, was beginning to sound exasperated. “It is now beyond dispute that freedom of association for the purpose of advancing ideas and airing grievances is protected by the Due Process Clause of the 14th Amendment,” wrote Potter Stewart in the unanimous ruling. The state has “not demonstrated so cogent an interest in obtaining and making public the membership lists of these organizations as to justify the substantial abridgement of associational freedom which such disclosure would effect.”

The NAACP provided inspiration to others, as more and different groups of Americans sought to force the Court to look more closely at the risks of other forms of disclosure. In 1958, Manuel D. Talley, a black man and cofounder of the Los Angeles chapter of the Council for Racial Equality, began distributing handbills that urged consumers to stop shopping at businesses that contained products from “manufacturers who will not offer equal employment opportunities to Negroes, Mexicans and Orientals.” Talley's handbills contained the name of another group he'd founded, National Consumers Mobilization, and a post-office box address. Local officials arrested and fined Talley for violating a 1932 city ordinance that required any handbill in the city to include the “name and address of the person who printed, wrote, compiled or manufactured the same.”

Cities and states had for some time been erecting such rules and bans on pamphlets, claiming it was a way of protecting citizens from fraud. That claim may have had some truth to it, but the politicians were also interested in keeping a grip on political information. The Supreme Court had already overturned ordinances that outright forbade the distribution of literature. Local jurisdictions had responded with new “disclosure” requirements. Talley's high-profile arrest, on flimsy charges, convinced many in the civil rights community that these new “transparency” rules were designed to intimidate activists out of political speech.