The Intimidation Game (36 page)

The Obama ad predictably complained about “secretive oil billionaires” whose accusations weren't “tethered to the facts.” It then pivoted to a brag about the administration's economic and energy and ethics record. Nobody in Washington or the press could have any doubt who the “secretive oil billionaires” were.

In February 2012, Obama campaign manager Jim Messina blasted out a fund-raising e-mail to the president's supporters entitled “They're obsessed.” It slammed AFP as a “front group founded and funded by the Koch brothers.” It then went on to make the absurd claim that “those are the same Koch brothers whose business model is to make millions by jacking up prices at the pump.” He also claimed the company had committed $200 million to “try to destroy President Obama.”

Saudi Arabia has some control over oil prices. Koch Industries, which buys crude oil at world prices, refines it, and sells it back into a competitive market, does not. Koch doesn't even own gas stations. And this was the
president's team
—singling out people by name and spouting untrue facts.

Koch's president for government and public affairs felt compelled to write to Messina and object to the scurrilous accusations. He pointed out the realities of refining. He noted that Koch had for months denied the $200 million rumor, which had been ginned up by the press. “It is an abuse of the president's position and does a disservice to our nation for the president and his campaign to criticize private citizens simply for the act of engaging in their constitutional right of free speech about important matters of public policy.”

Messina seemed to take near glee in writing a return letter, claiming it was “cynical” to suggest that AFP was about average citizens “furthering democracy.” He then dared Koch to “verify” the point: “Disclose those donors,” he demanded, so that the public could make “that judgment.”

And right there was the strategy. Messina and the White House were trying to get another list of names. They knew that more than just the Koch brothers gave money to AFP. They wanted a list of all the donors, so that they could do to them what they were currently doing to the Kochs.

Obama followed up, tweeting the same demand from his personal account: “@Messina2012 challenges the Koch brothers to disclose the donors funding their attack ads.” A few minutes later, the president added, “Add your name to demand that the Koch brothers make their donors public.” The tweet contained a link to an Obama website with an online petition that read, “Americans for Prosperity, the special-interest front group run by the oil billionaire Koch brothers, is claiming that its donors are ‘tens of thousands' of folks ‘from all walks of life.' We're asking them to prove it by disclosing their donors to the public.” Try to imagine George W. Bush conducting a campaign like this against Michael Bloomberg (who funds a nonprofit gun control group) or Tom Steyer (the pro–green energy, anti–Keystone pipeline activist who made a fortune in fossil-fuel deals overseas). The press would have had a meltdown over such hardball tactics.

The campaign rolled on this way through 2012, turning the Kochs into an ever-bigger bogeyman. “And gee, what happened in the end?” says Holden, back in sarcasm mode. “They complained the entire campaign—about the Kochs, and AFP, and Karl Rove and the like, and about how the entire electoral process had been taken over by sinister influences and dark money. And guess who won? Guess who outraised and outspent Mitt Romney? Barack Obama. Guess we didn't do that good of a job, did we?”

Holden admits that this was in fact the feeling within the operation, that it had done a poor job on the electoral side of things. It had poured a lot of money and time into the election, and yet had failed to elect candidates to change the balance of power in the Senate (in a year favorable to Republicans) and failed to win the White House (against a president with a lot of political liabilities). “We'd had an irrational exuberance,” says Holden. “And too many in our camp fell into that thinking and we paid a heavy price. If this were a business, everybody would have been looking for a new job. So we decided to retool and rebuild.”

Retool they did, an effort that resulted in the most sustained and direct attack against the Kochs yet. The president had made a point of singling out AFP during 2010, and the Obama reelect had used the Kochs as a foil during 2012. But this would prove nothing compared to the belligerent assault in 2014 of yet another powerful Democrat: Senate majority leader Harry Reid.

Reid had over the 2012 campaign talked about the Kochs here and there, joining the left in the usual bashing parade. But his approach took a lurch toward the hostile around March 2014. A revamped AFP had entered the midterm cycle with a new strategy of running “accountability” ads against a number of particularly vulnerable Senate Democrats—those in states where Romney had performed well in 2012. Most of the ads focused on health care, which had become a nightmare liability for congressional Democrats. Obama's Healthcare.gov launch in 2013 had proved an epic failure. Americans couldn't sign up; they were losing their doctors and insurance plans; prices were skyrocketing.

The AFP ads reminded voters of the history. A typical one, which ran against North Carolina senator Kay Hagan, featured a local woman who recounted, “Kay Hagan told us if you like your insurance plans and your doctors, you can keep them.” The woman went on to detail her own health insurance travails and steep new costs. Other ads featured Americans telling their life stories. One showed Julie Boonstra, a Michigan woman who'd been battling leukemia for five years and who explained how her insurance was canceled and her out-of-pocket costs had become “unaffordable.” The ad inspired liberal activists groups to team up to attack a leukemia patient. The mainstream press jumped in, quibbling over the definition of “unaffordable.” Democratic representative Gary Peters, running for the Michigan Senate, demanded that Michigan broadcasters pull the ad.

What worried Reid, however, was that the AFP broadcasts, which first started in the fall of 2013, were in fact proving highly effective. They were softening up the incumbents. The disapproval numbers for more than a half dozen Democratic senators started to rise.

This was a direct threat to Reid himself. If he lost the majority, he lost the majority leader's office. In March, he took the highly unusual (and unseemly) move of going to the Senate floor itself to attack Boonstra and the Kochs. “Despite all that good news, there's plenty of horror stories being told. All of them untrue, but they're being told all over America. The leukemia patient whose insurance policy was canceled, who would die without her medication. Mr. President, that's an ad being paid for by two billionaire brothers. It's absolutely false,” he said.

He was now unleashed. He started going to the Senate floor to decry the Kochs by name, in increasingly bellicose language. They were un-American. They were dishonest. They were power-drunk billionaires.

By September, Reid had attacked the Kochs from the Senate floor more than twenty-two times. And it didn't escape some conservative lawyers' attention that he reserved his most obnoxious accusations against the Kochs for the Senate well. Why? Because Article 1, Section 6 of the Constitution contains what's known as the “Speech or Debate” clause. The Founders wanted to protect elected representatives from tyrannical executives, and so the clause says that lawmakers can carry out their duties without fear of arrest or jailing. In short, it means that Mr. Reid can say whatever he wants on the floor of the Senate in complete knowledge that no legal action can be taken against him.

Reid's assault also inspired liberal activists and candidates to new levels of coordination. There was the Boonstra assault. Protestors grew at the biannual retreats the Kochs hold for Freedom Partners. Every Democrat facing a tough reelection began running ads claiming that every attack ad against them came from the “dark money” Kochs. The Democratic Congressional Campaign Committee demanded that the IRS investigate the tax status of AFP. The usual names—the Center for American Progress, Media Matters, Citizens for Responsibility in Washington—lambasted the Kochs, and filed complaints with the FEC and IRS. Environmental groups accused the Kochs of buying elections. This was particularly amusing given that one of the largest players in the 2014 election was Tom Steyer, a billionaire environmentalist who opposes the Keystone pipeline, and who spent $74 million trying to reelect Democrats.

“It was all about making it costly for us, delegitimizing us,” says Holden. “And I can see why. Groups like AFP, who spread the word about freedom, are a threat to the entire power structure of the Democratic Party. The left's power is based on central control. We are the very opposite of that—limited central government, power to the people. And we are effective. So they'll do anything to shut that up.”

And that means anything. And those attacks have had grave consequences. The Kochs these days routinely get death threats. They get phone death threats. Internet death threats. Death threats sent through the mail. And the threats aren't just directed at the brothers. Activists have threatened to blow up Koch facilities, to kill Koch employees. The Anonymous computer-hacking collective attempted to shut down the Koch Internet system. Tim Phillips, the head of Americans for Prosperity, the Koch affiliate, also told me those stories of bomb threats and bricks in the mail. Disclosure has consequences.

That's why Phillips and Holden and the rest are pushing back so hard against the Kamala Harris disclosure ruse in California. “Here's the question about this new push for disclosure laws, not just in Washington, but also in the states,” says Holden. “Just look at the history, the groups, the motives, the attacks. Knowing all that, can anyone with a straight face claim that this push is about more transparency for the average person? Please. The real end goal is to get that average person's name. Because they don't make distinctions. They are coming after Charles and David right now, because they are easy targets. But they will go after anyone who disagrees with their view on government.”

They already have.

The California Supreme Court
in May 2008 legalized same-sex marriage, overturning a state ballot ban on the practice. In the ensuing months, opponents of gay marriage collected enough signatures to stand up a new ballot initiative banning same-sex marriage, this time as Proposition 8, an amendment to the state constitution. They poured money into the campaign, and on November 4, 2008, it passed with 52 percent of the vote. Gay marriage was again illegal in California.

Gay and lesbian groups were angry. And they knew who to direct their anger at. California had listed on its government disclosure website every person who had donated as little as $100 to the pro–Prop 8 campaign. More than a dozen activist websites started listing the names, “outing” supporters of the initiative, posting contact information for the “haters.” (These are some of the same people who claim, justly, that it is offensive to “out” gays.) The information was soon viral. Some of the sites cross-referenced the names with employment information.

More chilling, anonymous activists created something called Eightmaps.com. The site combined the public disclosure information with a Google map. Users could zoom in to their neighborhood, get the names and addresses of every person who had supported the ballot initiative, and target them, house by house.

Jim Bopp was sitting in his office in Terre Haute, Indiana, in December 2008 when he got a call from some folks he knew at the Alliance Defense Fund. The fund is a group of Christian attorneys who defend the rights of people to live out their faith. Bopp's contacts explained that some very nasty things were happening to some very ordinary people. Would he look at the details and give his opinion on whether he thought there was a legal case?

Bopp's the lawyer who worked with David Bossie to bring the
Citizens United
case, but that suit was only the more recent of his free-speech cases. He's made a career out of forcing courts to uphold the First Amendment. And he's seen a lot. But the information he was seeing here appalled him.

Activists were staging raucous rallies, pickets, and boycotts outside of small businesses. Ballot supporters had lost their jobs. Activists were defacing their houses and vandalizing their cars. People were getting e-mail threats and ugly phone calls. And all because they'd donated to a cause they believed in.

Bopp has litigated every kind of campaign finance case imaginable over thirty-five years, but he's had a particular interest in disclosure. He didn't take long to think about whether to take the Prop 8 case. He was in.

James Bopp Jr. is sixty-five years old. He's tall, with blue eyes and a somewhat unkempt head of white hair. He talks like a midwesterner, because that's what he is. National Public Radio once described him as a “country lawyer,” since he has lived and worked his whole life in Terre Haute, where he and his wife grew up. He's nonetheless perhaps the most influential country lawyer in modern America. He and his team of ten lawyers have been at the forefront of cases that have for thirty years reshaped the speech landscape. He doesn't come to Washington more than he has to, but the legal rulings he's brought about today define pretty much every political campaign the city produces.

Bopp's a big-time social conservative, and he got his start in speech issues in the 1980 election. National Right to Life had engaged in a massive distribution of voter guides that played a role in the defeat of about a dozen pro-choice congressional Democrats. This provoked the FEC to initiate a new rule that would have effectively banned such literature, on the grounds that it helps certain candidates. Bopp filed suit and ultimately got it thrown out. He'd soon thereafter end up defending Ralph Reed's Christian Coalition against the FEC investigation conducted by Lois Lerner, discussed earlier, as well as against the agency's subsequent claim that the coalition had illegally coordinated with Republican candidates. Bopp won on all counts.

“Those two cases, they really put me on the path to this,” he tells me. “At first it just became a major part of my practice. But then it became a cause to me. It's an issue that I believe is essential for preservation of our democracy—a most rigorous enforcement of the First Amendment. It perhaps matters more than anything else.”

Since those two cases, Bopp litigation has overturned state limits for candidates and judicial elections; helped strike down part of McCain-Feingold; and got rid of contributions limits for advocacy groups. Bopp has represented the whole conservative universe—National Organization for Marriage, National Right to Life, the Club for Growth, the Republican Governors Association, the National Federation of Independent Business, the Republican National Committee, and dozens more. He founded the James Madison Center for Free Speech.

One of his more notable Supreme Court cases was
Doe v. Reed
, which went directly to the question of disclosure and harassment. In 2009, Protect Marriage Washington, a pro–traditional marriage group in Washington State, gathered enough petition signatures to put on the ballot a challenge to a new state law expanding domestic partnership benefits. Gay-rights groups then demanded to see copies of the petitions, under the state's public records act. Bopp sued to keep the petitions under wraps, and the case went all the way to the high court.

He lost. Bopp's problem was that the question in front of the Court was whether petition disclosure in general violated the First Amendment. It ruled it did not. The Court nonetheless noted that if it had been asked to look at whether specific signers, in a specific instance, might potentially be subject to threats and harassment, the outcome might be different. The ruling was 8–1, with only Justice Clarence Thomas making the argument that no petition signer ought to ever have his name divulged, given the potential for retribution. A particularly unfortunate part of the ruling came via Justice Antonin Scalia, who went out of his way to write a concurrence complaining again about the
McIntyre
ruling and going on about “civic courage.”

The bottom line is that
Doe v. Reed
was too broad to test the Court's support of disclosure in
Buckley
. The Court never had reconciled its embrace of disclosure with its prior holdings about the rights to anonymity. It instead dodged the question by claiming in
Buckley
that anyone who might be subject to threats or harassment or reprisals could just come back to the Court for relief.

Bopp thought he might have better luck with Prop 8, because there was nothing theoretical about the threats, harassment, and reprisal going on in that situation. His legal team, along with Alliance Defense Fund attorneys, embarked on a herculean campaign to track down and get signed affidavits from those who'd been attacked.

The news media documented some of the bigger horror stories. The director of the Los Angeles Film Festival, Richard Raddon, gave $1,500 in support of the ballot initiative. When his name came out, his critics threatened to boycott the festival. He stepped down. The artistic director of Sacramento's California Musical Theatre, Scott Eckern, had to resign when the news broke that he'd given $1,000 to the campaign. To further atone for the sin of having political beliefs, he promised to write a check for $1,000 to Human Rights Campaign, the LGBT group.

Margie Christoffersen was a manager of the popular El Coyote restaurant in Los Angeles. Her ninety-two-year-old mother owns it. Christoffersen, a Mormon, gave all of $100 for Prop 8. Activists whipped up a boycott over the Internet; they crowded on restaurant review sites to trash the joint. A mob showed up outside its doors, shouting “Shame on you” at customers. The police had to shut the mob down. The restaurant lost so much business that it had to close parts of the facility and cut workers' hours. Many of those workers were gay. Christoffersen later sat for an interview with the
Los Angeles Times
; she burst into tears a few minutes in. “I've almost had a nervous breakdown. It's been the worst thing that's ever happened me,” she told the writer.

Perhaps the most famous case of retribution was that of Mozilla CEO Brendan Eich. Eich had worked for years as the company's chief technology officer, and in 2008 gave $1,000 for Prop 8. Nobody said boo. Only when Eich was made CEO five years later in March 2014 did the left seize on the donation and cause a firestorm at the company, ginning up an “online shaming” campaign and threatening a boycott of Mozilla products. Eich lasted eleven days in his new job before he stepped down.

Activist groups also launched boycotts of the Sundance Film Festival, angry that it is based in Utah, the source of lots of Prop 8 dollars; the Manchester Grand Hyatt hotel in San Diego, to punish its owner's donation; and the A-1 Self Storage Company, whose founder, Terry Caster, had donated to Prop 8.

The activists wanted attention and aimed their biggest campaigns at high-profile and public figures. They ruined lives. And as awful as these stories are, it's almost more painful reading the affidavits Bopp submitted to court from nonpublic figures—normal, average, everyday Americans who lived for months under harassment and reprisals, and who to this day fear it will continue to happen.

A number of the Bopp affidavits feature small but nonetheless intrusive instances of harm. Citizens would wake up in the morning to find that intruders had come onto their property to steal or deface their yard signs or bumper stickers. This might not sound so awful. But take a minute to imagine people creeping around your property at night, taking your things.

Many instances were more severe. One donor to Prop 8 explained that he owned some grocery stores. Liberal activists came and put flyers on the cars in the parking lot of one store, maligning him for his donation. They set up three groups on Facebook urging boycotts of his business. Someone paid for a site urging a boycott and then paid for it to be a sponsored link on Google, so that anyone who looked up his store got directed there. They swarmed Yelp to write ugly reviews. Protestors came and occupied the entrance to the store to hand out flyers and to tell people not to shop there. They showed up again and demanded that customers sign a petition. One activist went into the store, loaded a cart with groceries, made the cashier ring them up, and then refused to pay. Random people came in to complain about the Prop 8 donation, hassling employees. The phone kept ringing with harassing calls. The owner had to install sixteen additional security cameras, for fear the activists might come in and tamper with products. “These experiences will hinder me from donating to a cause similar to Proposition 8 in the future,” reads the affidavit.

One lawyer's office started receiving hate e-mails: “hello propogators [
sic
] & litigators burn in hell”; “I AM BOYCOTTING YOUR ORGANIZATION AS A RESULT OF YOUR SUPPORT OF PROP 8”; “your contribution to Prop 8 has caused great harm to society and proves that your store and your owners are homophobic sick individuals who would suppress a significant portion of our society. I will tell all my friends not to use your business.”

An artist in New York made her living with paintings of drag queens and gay parades, yet she donated to the pro–traditional marriage cause. She came home one day to find two reporters waiting outside her house, which unnerved her; her husband had just had a heart attack and she worried that unannounced people could aggravate his situation. She received more than sixty ugly e-mails: “your work is garbage and should be defaced!”; “you better not ever show your face again at any gay gathering”; “I for one was really never that impressed with your ‘work.' I will bang some heads together to get these queens to boycott anything you have a hand in.” Lots of Prop 8 donors received e-mails that promised efforts to have them fired or their place of business shunned. One woman was told that activists intended to call all the parents in the school at which she worked.

Another donor recalled how activists distributed a flyer that contained a picture of the donor in his/her neighborhood, the headline “BIGOT,” and information about the individual's relationship with a local church. An activist wrapped a heavy object, likely a rock, in a “Yes on 8” sign and destroyed a Lutheran church's window. One man had a book sent anonymously to him via Amazon containing the greatest gay love stories of all time. The night of the election, someone defaced the statue of Mary outside his church. Some people showed up to work to find offensive voice messages: “Hey, it's really disheartening to know that one of my neighbors supported Proposition 8 so heavily. What a scum-fuck.” Some found voice messages waiting at home: “I certainly hope that someday somebody takes something away from you and then you'll realize what a fucking bitch you are.” This woman also received harassment over her Facebook and MySpace accounts, including a threatened assault. She had to coordinate with her security department at work to ensure she remained safe.

One donor, a senior citizen, had their back car window bashed in. Another donor had their car keyed. Yet another had their car keyed and the air let out of the tires. That same person came outside to their balcony a week after the election to find urine all down the steps and a puddle of it at the bottom. Yet a different donor had their house egged night after night. Activists poured honey on this person's cars—repeatedly (honey destroys the finish). The same person's temple was vandalized with graffiti.

One person simply told the very sad story of how his sister-in-law would no longer speak to him.

There's plenty more, all of it bad. Even Ted Olson, former solicitor general, who successfully represented the anti–Prop 8 community in its Supreme Court battle, was worried by the tactics. “I hate to see this from the LGBT community; they are overdoing and hurting their own cause. When you see those kind of abuses out there, it really does make you think about the cases going way back,
NAACP
and the like.”