The Intimidation Game (37 page)

Bopp and the team collected the details and filed a lawsuit in early January 2009, asking a federal court to stop the release of personal names and information. The suit challenged part of California's campaign finance laws that required disclosure to initiatives. Bopp's suit, like all campaign finance litigation, delved into highly complex questions of constitutional and state law—the kind that makes your brain hurt. Far more notable were some of the bigger points that the case highlighted.

One of them got to a most basic question: What is disclosure for? Good-government types and the courts argue that it is necessary to inform voters, to act as a “disinfectant” against corruption. But the original idea was to inform voters about who was funding specific candidates. The Prop 8 measure didn't involve candidates; there was no potential for a quid pro quo. So what benefit was served by releasing the donations? How did this result in “cleaner” elections?

The question wasn't really ever whether opponents of the initiative had the right to organize peaceful protests or boycotts. Of course they do. This, too, is part of democracy. The question is whether the government should be playing a role in providing them targets, via enforced disclosure.

Bopp: “This wasn't about opening up the system or even helping with debate. It was about retribution. It was about revenge. This was about a faction that was perfectly prepared to do anything—illegal things, too—to punish those who disagreed with them. Is that what we want these laws for?”

But the case also highlighted the absurdity, in today's world, of the
Buckley
holding on anonymity. The Supreme Court message was essentially this: If you think you might be harassed, just come back to us and we'll make an exception to the disclosure rules. It clearly had the
NAACP
case on its mind. But
NAACP
was an entirely different situation, and in a different age. An attorney general was demanding a list that only the NAACP held. It refused to hand it over, and it obtained Court backing to keep it secret.

Today's modern disclosure system makes personal details a requirement of contributions. You can barely donate anything without first providing your name, address, and sometimes other details. From the moment you press send, that information is in someone else's hands—the government's. In most cases, it is then near-instantly put into a public database that is searchable by all and sundry. Or it is subject to sunshine laws. “Years ago we would never have been able to get a blacklist that fast and quickly,” bragged Candace Nichols of the Las Vegas Gay and Lesbian Community Center during the Prop 8 harassment. So when exactly is the moment at which a citizen can request a court to shield them from potential threats or abuse?

Bopp's request was that the court force the state to expunge the existing records, and to prevent this sort of information from going out in future elections. He'd proven the harm, which is what is supposedly required under
Buckley
.

And, yet again, he lost. A lower court came up with a bunch of excuses as to why Prop 8 supporters weren't entitled to protection. The decision of the Ninth Circuit Court of Appeals took a totally different tack, and in doing so provided the final bit of absurdity to
Buckley
's disclosure regime. The Ninth Circuit declared the whole issue moot. It explained that there really was no point to taking any action; the names had already been out there for five years. What was done was done. And the Supreme Court, in the spring of 2015, refused to hear Bopp's appeal—allowing that ruling to stand.

So what protection is there, ever, for a citizen, against threats and reprisals? Go to the courts prior to it happening and be told that you have no proof it will happen. Go to the courts after and be told that it's too late, it already happened.
Buckley
and subsequent campaign finance laws eviscerated anonymity, and the courts have grown more callous since then to the threat.

One of Bopp's frustrations is that he in fact doesn't believe the judiciary really understands how pernicious simple intimidation is. “There was a case we cited in
Doe v. Reed
, and it had to do with the Ku Klux Klan,” he remembers. “And what the Court realized in that case was that intimidation is as grave a threat to the health of democracy as anything else. Sure, the Ku Klux Klan did things like lynch people; they committed crimes. But the vast majority of their activities were aimed at simple intimidation—burning a cross in a yard, showing up in those hoods. So you put people's names out there, and you couple it with the new willingness on the left to intimidate people who disagree with their political strategy, and you drive average folk out of the system. It's a grave threat.”

There's little question that the Prop 8 campaign was primarily about intimidation. Fred Karger launched Californians Against Hate, one of the main websites that outed larger Prop 8 donors—listing names, addresses, telephone numbers, and website addresses. He told the
Washington Times
in 2009, “One of my goals was to make it socially unacceptable to make these mega-donations that take away people's rights. I want them to think twice before writing that check.”

The Prop 8
retribution campaign was nasty, and it earned the left-wing activist community criticism even from some on its own side. That required it to come up with justifications, most of which were flimsy. It argued that the public had a right to know, and that Prop 8 supporters had violated the civil rights of gay Americans and so had forfeited their own.

The excuses nonetheless all boiled down to one argument: The left was fighting the “good” and “moral” fight, and any voice that opposed that fight needed to be eliminated. In the years since Prop 8 that argument has come to frame endless campaigns against ordinary Americans who dare to oppose the left's goals.

That includes any scientist who doesn't sign up for the left's view on global warming. Democrats tried for years to pass comprehensive global warming legislation, but the public didn't like the idea. And these days, the party has grown more wary of trying to push through such a bill. In 2009, liberal Democrats squeaked the Waxman-Markey cap-and-trade bill through the House. Yet former majority leader Harry Reid wouldn't bring it up in the Senate because, by most estimates, it didn't even have forty votes. President Obama so understood the legislative reality that he didn't try passing the bill again. He instead imposed his own modified version of the legislation on the country by executive fiat, via regulations at the EPA.

Democrats want an even more robust system regulation, but that will involve persuading far more Americans that the threat is real. For some, like Democratic presidential aspirant Bernie Sanders, this is an overriding priority. The Vermont socialist declared in a 2015 debate that global warming was the biggest national security threat the country faced—bigger than ISIS, terrorists, or a nuclear Iran. Which gives you a sense of the left's need to shut down any scientists who throw doubt on their theories.

A group of scientists in February 2015 received such a blast, from the office of Arizona representative Raúl Grijalva, the ranking Democrat on the House Committee on Natural Resources. The global warming purist had read an article in the
New York Times
about Willie Soon, a Harvard astrophysicist who for many years has argued that the Earth's climate is significantly tied to solar variability. The
Times
piece wrote that Mr. Soon had received some funding over the years from the fossil-fuel industry. This wasn't news; it had been released years ago. But the
Times
took issue with the fact that Soon hadn't noted the funding in recent work he'd done.

It was a small and silly topic, but it was the left's opening to go after researchers. Grijalva instantly launched his own pressure-disclosure attack. His office sent letters to universities asking about seven climate scientists, all chosen solely for the fact that they had at one time or another objected to climate change hysteria. They included David Legates (University of Delaware), John Christy (University of Alabama), Judith Curry (Georgia Institute of Technology), Robert Balling (Arizona State University), Roger Pielke Jr. (University of Colorado), Steven Hayward (a respected author and scholar), and Richard Lindzen (recently retired from MIT).

The letters demanded that the universities cough up any details about the seven scientists' funding. Anything—speaking fees, consulting fees, travel expenses, honoraria, consulting fees, salaries, compensation. They also demanded any communications with anybody about that compensation. No, Grijalva admitted, he had no evidence that these seven had done anything wrong. But in light of the Soon information, he explained, it was important that he root out any conflicts of interest.

The Grijalva campaign was in perfect keeping with the other recent congressional Democratic intimidation campaigns, like those against ALEC and the Chamber of Commerce. Only the Arizonan wasn't going after groups—he was going after private individuals who were producing facts that were inconvenient to the left. As one of the targeted scientists, Richard Lindzen, wrote on the
Wall Street Journal
editorial page, “Mr. Grijalva's letters convey an unstated but perfectly clear threat: Research disputing alarm over the climate should cease lest universities that employ such individuals incur massive inconvenience and expense.”

Lindzen pointed out in the piece just how militant Grijalva and his climate cronies were about enforcing the liberal party line. Among those targeted was Pielke, who happens to believe in climate change and supports reductions in carbon emissions. Pielke had nonetheless dared to claim that he could find no basis for the global warming community's increasingly alarmist claims that climate is associated with extreme weather. That would not do, Lindzen noted, because it “contradicts the assertions of John Holdren, President Obama's science czar.” So Pielke got teed up too. “I know with complete certainty that this investigation is a politically motivated ‘witch hunt' designed to intimidate me (and others) and to smear my name,” he wrote on his blog.

A trio of three Democratic senators—California's Barbara Boxer, Massachusetts's Ed Markey, and Rhode Island's Sheldon Whitehouse—backstopped the Grijalva effort with their own letter campaign. The senators sent a missive to 107 different companies, think tanks, independent organizations, and trade associations, demanding information about anybody in the climate arena to whom they had given funding. Among those getting the letters were plenty of groups that had already come under congressional attack. ALEC got one, and Lisa Nelson remembers it with frustration: “The answer was zero dollars. It was pure harassment,” she says. Koch Industries got one. Holden wrote back to the senators in reply, “To the extent that your letter touches on matters that implicate the First Amendment, I am sure you recognize Koch's right to participate in the debate of important public policy issues and its right of free association.” Holden refused to provide the senators with the information.

Pretty much everyone did. The episode quickly took on the feel of the pushback to the Durbin letter about ALEC. The American Meteorological Society was downright offended: “Publicly singling out specific researchers based on perspectives they have expressed and implying a failure to appropriately disclose funding sources—and thereby questioning their scientific integrity—sends a chilling message to all academic researchers,” wrote the institution in a letter back to Grijalva. The American Geophysical Union declared that “singling out” scientists “based solely on their interpretations of scientific research” was a threat to free inquiry.

Think tanks were practically unhinged in their own response. They could barely believe this was happening again, and this time they were ready with choice words. “It surprises nobody that you disagree with CATO's views on climate change—among a host of issues—but that doesn't give you license to use the awesome power of the federal government to cow us or anybody else,” wrote Cato Institute president John Allison in a letter to the three senators. Heartland Institute president Joseph Bast excoriated the senators for “attempting to silence public debate,” scathingly inviting the Democrats to inspect the nonprofit's public tax returns. All eleven Republicans on the Senate Environment and Public Works Committee slammed the ploy. By March, Mr. Grijalva had somewhat backed off, acknowledging that perhaps his demand for financial information was “overreach,” though still insisting that the basis of his inquiry was legit.

The three senators never did express any contrition. They were, rather, among the dozen Senate Democrats who in the fall of 2015 sent that letter to every member of the Chamber of Commerce's board demanding to know whether they supported the chamber's climate “denial.”

Congressional Democrats' decision to refocus their intimidation tactics on individuals—climate scientists—was new in Washington. But they didn't come up with this campus-assault idea on their own. For years, the usual crew of left-wing organizations, unions, and environmentalists have been using “disclosure” to sully the names of conservative professors and attempt to shut down their programs. Any scholar who challenges the liberal ideology has come in for a professional takedown.

Their hook for these silencing campaigns are endowments—namely any provided by conservative-leaning individuals or philanthropies. Not that giving money to universities and earmarking it for specific purposes is usually controversial. The left is particularly good at it. Billionaire environmentalist Tom Steyer and his wife several years ago pledged $40 million to Stanford to start the TomKat Center for Sustainable Energy. The Morningside Foundation, established by the family of the late T. H. Chan, last year gave Harvard $350 million to fund work on, among other things, gun violence and tobacco use. The Helmsley Charitable Trust has given money to several schools to advance the Common Core.

Nobody in the liberal ecosphere has any problem with money like this, or the strings that are attached to such endowments—strings, say, that focus on a particular liberal idea. Is “sustainable energy” a good idea, economically or even environmentally? Such academic questions aren't the focus of Steyer's TomKat Center. Sustainable energy is assumed to be awesome, and the center's only job is to produce work documenting all that awesomeness.

The only kind of earmarking or strings that are not allowed are any that might “undermine…environmental protection, worker's rights, healthcare expansion, and quality public education,” according to an organization known as UnKoch My Campus. Stopping such research is the mission of this group, which is spearheaded by Greenpeace, Forecast the Facts (a green outfit focused on climate change), and the American Federation of Teachers. And, unsurprisingly, these groups are focused on the Kochs. Various Koch foundations do give money to universities to fund and support all types of programs—in the arts, literature, and, yes, also in free-market ideals. Environmentalists, unions, activists—the same old universe—have mobilized against this.

UnKoch My Campus got its start a few years back, and is already proliferating around the country. The group's website directs student activists to a list of universities to which Koch foundations have given money, and provides a “campus organization guide” with instructions for how to “expose and undermine” any college thought that works against “progressive values.”

The instructions are incredibly detailed. Students are first directed to recruit “trusted allies and informants” (including liberal faculty, students and alumni) and then are given a step-by-step guide on hounding universities and targeted professors with demands for records. The American Federation of Teachers and the National Education Association devoted nearly a full day at a conference in the spring of 2015 to training students on the “necessary skills to investigate and expose” any “influence” the Kochs have at universities.

In March 2015, Michigan State University released documents to student activists who had targeted political-theory professor Ross Emmett, director of the Michigan Center for Innovation and Economic Prosperity. His offense? Using Koch grant money to fund a reading group, called the Koch Scholars, which brings together students to discuss competing political economy ideas. The first two weeks were devoted to Marx, though the activists apparently couldn't tolerate an equal discussion of capitalism.

A far more disturbing example concerned Art Hall, who runs the Center for Applied Economics at the University of Kansas School of Business. He was forced in 2014 to file a lawsuit to try to stop a state records request from student activists demanding his private e-mail correspondence for the past ten years. Mr. Hall was targeted because his center got a seed grant from the Fred and Mary Koch Foundation, which provided a lot of money overall to Kansas educational facilities. In 2003, Hall had left Koch Industries to work for Kansas Democratic governor Kathleen Sebelius. He then entered academia and became a respected teacher at Kansas. His ties to Koch were never hidden and always publicly disclosed.

What really torqued the student activists was that Hall had gone to the state capitol and exercised his free-speech rights by offering testimony about Kansas's bad idea for green energy quotas. These are mandates that require utilities to produce a certain amount of their electricity from renewable sources. Those quotas tend to drive up consumer electricity bills, and Mr. Hall testified to some of those economic realities. The complaints against Hall are in line with the left's new standard for what counts as a climate “denier.” Anyone who opposes any green energy initiative, even on the basis of sound economics and consumer protection, is a climate heretic, even if they acknowledge that climate change might be a problem.

The UnKoch activists have meanwhile been aided from within and without. Liberal professors dominate campuses, but many nonetheless can't bear to hear an opposing argument. Activists dish dirt on the rare conservative university professor. And professional academic organizations have proven just as feckless, at least when it comes to free-market scholars. Several years ago, the American Association of University Professors went to the mat to defend climate scientist Michael Mann against a conservative group's demands for his records. But when Hall came under assault, the Kansas chapter of AAUP helped fund the students' demand for his correspondence.

These UnKoch tactics have also spread beyond just student activists to more professional left-wing agitator groups. In February 2015, Right to Know, a California nonprofit opposed to genetically modified food, filed Freedom of Information Act requests at four universities, demanding correspondence between a dozen academics and outside agriculture companies and trade organizations. Or there is the Kentucky Center for Investigative Reporting, a left-leaning organization, which recently forced the University of Louisville to release information about the founding of a new Free Enterprise Center, partly funded by Koch money.