The Intimidation Game (38 page)

In mid-April 2015, Mississippi State University approved a plan to create an Institute for Market Studies, and explained that the Charles Koch Foundation intended to give more than $350,000 over the next two years to support it. The school's leadership made a point of saying that academic freedom was its core value and that the new institute would be “faculty led” and with “complete freedom” over its research.

Within a week, American Bridge, the “progressive research” organization founded by David Brock (who also runs Media Matters and other Hillary Clinton–promoting organizations) had filed an open-records request with the school. The request offers a remarkable insight into the harassing, threatening nature of such demands. It wanted all e-mail correspondence between the Charles Koch Foundation and the university president; the provost; the general counsel; the vice president for budget and planning; the vice president for research and economic development; the vice president for development and alumni; the vice president for student affairs; an assistant professor of economics; and an associate dean of economics. It wanted all these documents going back nearly eighteen months. And it also wanted any documents, proposed or finalized, budget or otherwise, pertaining to the new institute. It made clear that “correspondence” included mail, faxes, memos, and e-mails.

Activists obtain these documents so that they can comb through them for anything they think might be explosive—especially if taken out of context. One goal is to make an association with the Kochs so difficult that no university will want to attempt it. Another is to name specific professors and scholars who are associated with such efforts, or who give testimony on conservative issues, and to let them know they are being watched.

It's all fundamentally aimed at shutting down debate. The media has focused some attention on this, with regard to the recent and growing trend of colleges disinviting conservative speakers when their liberal students protest. But the mainstream press is largely failing to cover the drumming out of conservative thought and scholarship at university campuses. Which is—again—being accomplished under the auspices of disclosure.

And you don't have to be just some yahoo conservative professor to get the treatment. Anybody who gets out of liberal line is fair game.

Ask Elizabeth Warren. The Massachusetts liberal was among the Dirty Dozen of Democratic senators who sent that climate letter to the chamber. But that was just a warm-up for a more personal vendetta.

Warren has been among the most aggressive enemies of the financial sector, blaming companies for all the country's economic woes and advocating for piles of new regulations. Prior to her election to the Senate in 2012, Warren was a Harvard law professor and passionate advocate for a new government agency to “protect” consumers. That entity came into being in the Dodd-Frank law of 2010, as the Consumer Financial Protection Bureau. Among the first to endorse Ms. Warren's proposal was a Democratic scholar and economist at the Brookings Institution named Robert Litan.

Litan spent forty years at Brookings and is well respected. He is a liberal, but an honest one. His scholarship is based in that old-fashioned notion that liberals really are supposed to make things better, not worse. In that vein, Litan in July testified to the Senate about a controversial Labor Department proposal called the “fiduciary rule” that would force financial advisers to put their clients' interests ahead of their own. That sounds pleasant, but in reality the rule makes it harder for investors to get advice from professionals. Litan got into this in his testimony, noting that his own research showed that “the benefits of the rule do not outweigh its costs. In fact, during a future market downturn, we estimate the rule could cost investors as much as $80 billion.”

Litan, as noted, is a good liberal, and so added this important caveat: “The notion that all retirement investment advisers should be held to a best interest of client standard is not controversial. It's the way the Department proposes to implement it, which because of its costs and risks, will lead to many clients going without an adviser, or if they are able to retain one, only at substantially higher costs.”

This was hardly intellectual treason, but it was too much for Warren, who has been among the biggest proponents of the new rule. She tried for a bit to rebut the Litan analysis, but when she got nowhere, she chose instead to engage in character assassination. She wrote a letter to Brookings president Strobe Talbott accusing the scholar of “vague” disclosure about the funding of his research.

Which was more than a little weird, given that the following appeared on the first page of his prepared testimony to Congress: “The study was supported by the Capital Group, one of the largest mutual fund asset managers in the United States.” You can argue with whether Litan may have been biased by the funding, but you can't argue that nobody knew about it.

Brookings folded like a cheap suit. The think tank (by contrast to Cato or Heartland, when attacked by Democrats) meekly noted that Litan had in fact apparently violated a rule when he'd testified before the Senate. He wasn't supposed to identify himself as a Brookings scholar. The
Wall Street Journal
reported that the rule was a recent creation, and that Litan realized he had erred after the testimony and had apologized. Brookings had thought nothing of it until Warren commenced her attack.

Yet once she did attack, the institution threw him overboard. Litan was forced to resign after decades at Brookings. Warren had successfully muzzled independent research, and sent the message that other scholars who oppose her passions on the Hill will be in for the same treatment. Warren's other message: It doesn't matter what side of the political aisle you are on.

If you've made it this far in this book, you might be thinking yourself lucky. You might be feeling grateful that you never went to a Tea Party meeting, you never wrote a climate research paper, you never donated to Prop 8, you never supported Scott Walker, you never donated any money to ALEC, you never ran a company subject to shareholder proxies, you never volunteered for Americans for Prosperity. You have never had your speech rights assaulted.

Only you'd be wrong. You have. Every person in the United States of America did on September 11, 2014. That day goes down in constitutional infamy.

In some ways, it shouldn't have come as a surprise. The left started its intimidation campaign by trying to silence a nonprofit here, a company there, a big donor here, a trade association there. But along the way it wrapped in small donors, and scholars, and scientists, and petition signers, and shareholders, and free-market professors, and grassroots groups. It was only a matter of time before it came to the obvious conclusion: Everybody has too much speech.

And so on September 11, 2014, fifty-four members of the Senate Democratic caucus voted to do something that had never been attempted in the history of this glorious country: They voted to alter the First Amendment. Henceforth, “Congress and the states may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections,” and may outright “prohibit” corporations and nonprofits from spending any money “to influence elections.” The amendment gave incumbent legislators and state officials near-total power to suppress undesirable political speech.

Why were Democrats proposing a change to the Constitution, rather than just legislation? Because such legislation
is unconstitutional
. Money funds speech. If you ban certain forms of money, you ban certain forms of speech. The Supreme Court has held so. And so the problem, in Democrats' minds, is the First Amendment itself. It is just too damn free.

George Will, in one of the most skewering and insightful columns he has ever written, lambasted the Democratic majority for thinking it might “improve” on James Madison. He also pointed out that Floyd Abrams, “among the First Amendment's most distinguished defenders,” had noted that Democrats were proposing to limit only political money that funds speech. Will wrote that Abrams had said that “this would leave political speech less protected than pornography, political protests at funerals, and Nazi parades. That, by aiming to equalize the political influence of people and groups, it would reverse the 1976
Buckley
decision, joined by such champions of free expression as Justices William Brennan, Thurgood Marshall and Potter Stewart. That one reason President Harry Truman vetoed the 1947 Taft-Hartley Act was that he considered its ban on corporations and unions making independent expenditures to affect federal elections a ‘dangerous intrusion on free speech.' And that no Fortune 100 corporation ‘appears to have contributed even a cent to any of the 10 highest-grossing super PACs in either the 2010, 2012 or 2014 election cycles.'” Will was so appalled by the exercise that he devoted space in his column to listing, by name, every one of the Democrats who had chosen to mark their name down for such “extremism.”

The scary thing is, they don't see it as extreme. In April 2015, Hillary Clinton, a Democratic candidate for the presidency, called for a similar constitutional amendment. She named it one of her four priorities were she to obtain the White House. The Democratic Party as a whole is now adopting this proposal to overthrow the First Amendment. It won't happen anytime soon—passing an amendment to the Constitution is hard. But the fact that Democrats are trying to marks a radical shift in the political culture. The left is done with debate.

David Rivkin, the D.C. lawyer who fought on behalf of O'Keefe, finds the idea not just horrifying, but shortsighted. “What they've done up to now—it's about screwing people at the retail level,” he says. “The Bauer stuff, the Walker stuff. It's manageable. You ride the tiger, you dismount at some point, and you hope the other side doesn't use the same tactics on you. You can manage it. But when you get to the constitutional level, all bets are off. Let's say they actually got this change. What happens when all the barriers are gone, and the devil turns on you? What happens when there is a Republican administration, and they use this to totally shut
you
down? That's such a big risk.”

Rivkin is one of the savviest people I know. And he makes an important point. Then again, there's a good case to be made the left isn't planning on there ever being another moment when the other side is in power. Their intention is to make sure they forever own the debate.

That's the point of shutting down speech. That's the point of the intimidation game.

The intimidation game
is real, and it is now a defining feature of today's political environment. Americans tend to worry about Washington gridlock and political dysfunction and rampant partisanship. Their greater worry ought to be the steady erosion of their own rights.

The left has a term it likes to employ whenever it wants to sow fear about political money and free speech. That term is “special interests.” They whip out the supposed threat of shady and powerful actors as their excuse for their tactics, and for shutting groups out of debate. They have largely been successful in frightening Americans into forgetting the purpose of the First Amendment.

The Founders had their own word for special interests: “factions.” They knew that factions—different strains of society, with different views about the country's future—were a basic reality of a nation. Their answer to this tension wasn't to crack down on one group or another, to have government balance the equation. Their answer was to set “faction against faction” to inspire an explosion of debate. Each faction would have its opportunity to convince others of the rightness of its cause. And the citizens would decide, armed with more and better information.

The United States in the past hundred years, and in particular since Watergate, has gone down a very different path. In the name of “clean and transparent” elections, it has layered ever more restrictions on political spending, and by extension on speech. It has instituted a vast new disclosure regime, ostensibly to better inform voters about political actors and the workings of government. This disclosure has instead empowered the intimidators to silence those who question them.

Ronald Reagan once quipped that “the nine most terrifying words in the English language are ‘I'm from the government, and I'm here to help.'” Nobody should ever forget who dreamed up campaign finance and disclosure laws. It was the politicians. A corrupt Washington told the nation that these laws would stop Washington from being corrupt again. The American people bought it, and in fairness, they were desperate for anything that might make their government better toe the line.

Yet decades on, it's incumbent on every thinking person to step back and evaluate these laws on the merits. They certainly sound good on their face. They were supposed to lead to cleaner elections, less “special interest” influence, more accountable politicians, a better-informed electorate. Only none of that has really happened. Instead, the laws that were designed to keep the political class in check are being used to keep the American people in check.

Consider disclosure. Justice Louis Brandeis famously said that “sunshine is the best disinfectant.” He meant for that sunlight to apply to government. The idea was to shine the light on the rat-filled corners of the state, to flush out the dirty deeds of politicians and bureaucrats.

And how is all that sunshine working out? Obama came to office promising to oversee the most transparent administration in history. Instead, his government may go down as the most secretive in the modern era.

Since 1950 Washington has operated under the Federal Records Act, which requires the government to preserve documents about its actions and decisions. And since the 1960s the government has been subject to the Freedom of Information Act, which gives citizens the right to view those records.

Yet in the spring of 2015, Americans found out that Democratic presidential aspirant Hillary Clinton had conducted all of her business while secretary of state on a private e-mail server. This news only came to light when a House committee began investigating the 2012 Benghazi attack and was unable to locate key Clinton records. When caught, Clinton made the unilateral decision to go through her e-mails and delete any that she felt were “personal.” She then handed over the rest to the federal government and asked the country to trust that she had given a complete record. Clinton later claimed that she used her private e-mail for “convenience,” an absurd assertion. She maintained a private e-mail account so that she could keep control over what the public could see of her government work.

She isn't alone. We have found out that Secretary of Defense Ash Carter also used private e-mail. Former EPA administrator Lisa Jackson used private e-mail. She and Agriculture Secretary Tom Vilsack also used e-mail aliases for their government accounts, making it harder for watchdog groups to FOIA their correspondence. Former Health and Human Services secretary Kathleen Sebelius used private e-mail. As did a onetime Obama acting head of the Labor Department. Lois Lerner had two private accounts. Lerner also used an instant-messaging system that wasn't archived, in order to shield her conversations from the public. Watchdog groups have discovered that many midlevel officials and federal bureaucrats used these off-grid accounts to work secretly with outside liberal organizations to craft sweeping regulations.

In the summer of 2015, the Council of the Inspectors General on Integrity and Efficiency, which represents the offices of more than six dozen inspectors general across the government, had to ask Congress to intervene after the Obama administration put up bars to their investigations. The administration had recently informed those watchdog inspectors that from here on out they would need to get permission from the very agencies they were investigating to look at crucial documents.

The administration these days outright refuses to comply with subpoenas from Congress. Years into their investigations, Republicans still don't have all the IRS documents. They still don't have the Benghazi documents. They still don't have the Fast and Furious documents. Outside watchdog groups have fared better, but they too face unprecedented roadblocks. Agencies have actively discouraged outside groups from FOIA requests by attempting to charge them huge fees. Departments sit on records, trickle them out, drag along proceedings in court. Their newest excuse for noncompliance is that they don't even have the records. Why? Because their employees have been using private e-mail accounts.

The entire concept of disclosure has in fact been flipped on its head. The American people know almost nothing about the working of government. Instead, disclosure is trained on the electorate, allowing the government to know everything about the political activities of Americans.

One beautiful example: The
Huffington Post
until recently maintained a dedicated website that conveniently dumped Federal Election Commission data straight into Google Maps. Any visitor could pull up a street map of any corner of America and identify every political donor. Each one was conveniently represented by either a blue or red dot, to indicate to which party they donated. Click on the dot and you got names, addresses, amounts of contributions, and the organization that received the dollars. Anyone could look at this information: your boss, your neighbor, your landlord, your kids' teachers and coaches.

At the height of Senator Dick Durbin's attack on ALEC, liberal organizations made the argument that groups like ALEC and its donors needed to be held “accountable” to the public. That shows the degree to which disclosure has been hijacked. Since when does government get to decide what is “accountable” political behavior? The First Amendment was crafted to protect citizens from their government. Yet we have entered a realm where citizens, if they want to donate to a political cause, must first register their details with the very government they seek to criticize.

And so the politicians know who is doing the criticizing, and with whom to settle scores. Former Senator John Kerry made sure that Sam Fox never got his ambassadorship to Belgium. Fox was disciplined for having donated to Swift Boat Veterans for Truth. The government subjected Frank VanderSloot and Catherine Engelbrecht to multiple audits as punishment for their conservative work. The IRS segregated out Tea Party applications and put them on hold as a penalty for opposing Barack Obama.

Meanwhile, the forced disclosure of information from independent political actors serves only one purpose—to tee them up for intimidation. It certainly doesn't enlighten the public, which is supposed to be the goal of disclosure. The best example of this failing is the Clinton Foundation. The foundation likes to crow that it discloses all its donations and spending. Yet that information meant little to the public until Hillary Clinton was forced to reveal some of her e-mails from her time as secretary of state. Only then did the nation discover the degree to which Clinton had used her position as secretary of state to funnel money from governments across the world to her family charity, which also operates as a quasi–super PAC for the presidential candidate. And the nation still doesn't know half the story. Because Clinton deleted her e-mails.

Campaign finance laws, too, have been turned against the Americans they were supposed to protect. Take Wisconsin, where prosecutors and the Government Accountability Board used a poorly and loosely written state statute to concoct a new definition of what counted as “illegal coordination” and to spend years persecuting independent organizations that supported Scott Walker. While Walker was certainly looked at as part of that probe, the politician was never the prosecutors' main quarry. They were going after average Americans who had dared to engage in elections.

The Obama administration is now attempting something similar. In March 2015, the Justice Department announced that it was gearing up to prosecute its own definition of “illegal coordination” under federal law. Justice put out a statement explaining that it intended to “aggressively pursue coordination offenses at every appropriate opportunity.” Questions of improper coordination are normally left to the bipartisan Federal Election Commission, which handles civil complaints. The Obama Justice Department was making it clear that it didn't intend to wait for the FEC, and moreover would skip directly to criminal prosecution. The warning was meant for Republican candidates and the super PACs that support them. And no one needs to tell those players that the federal government can subpoena their documents, their e-mail, their computers, and their bank records in any political fishing expedition it chooses. These threats are made in the name of democracy.

Yet the coordination question gets to the heart of the Constitution. One man's coordination is another man's freedom of association. If the National Rifle Association believes in gun rights, and Politician A believes in gun rights, why shouldn't they confer? What is nefarious about like-minded Americans working to advance an agenda? This is what the Constitution was designed to protect—it safeguards both speech and association. Yet we have traveled so far down the complex campaign finance road that basic constitutional rights have been made to look suspicious. And that has provided an opening for government prosecutors to go after political rivals.

And so it's time for a rethink.

It's time to rethink disclosure laws. Those rules were put in place to hold politicians and parties accountable for the money they received and spent. It's time to remove those disclosure requirements from independent political actors—such as Tea Party organizations, or environmental outfits, or free-market advocacy groups like the Wisconsin Club for Growth. The requirement that these groups disclose their political spending serves no purpose other than to arm politicians and rivals. How does it enlighten the public to require an advocacy group to detail the spending of an independent ad campaign? All it does is strip independent political actors of the freedom to speak freely and without fear of retribution.

It's likewise time to remove the requirement that these groups report their donors to the IRS and other government agencies. True, nonprofits are shielded from having to release that information to the public. But they do have to submit details about their larger donors to the IRS. Those forms are supposed to be confidential, but they are hardly safe. The IRS was caught leaking donor information to the press. There is good reason to believe the service used donor reports to single out and audit Republican contributors. And state attorneys general are moving to change state law to require that these IRS forms be made public. The government has no right to this information.

If the government believes that such a group or a donor has violated the law or engaged in fraud, it can go to court and make the case that it has a right to subpoena financial information. But the burden ought to be on government to make that case. Private actors should not be required to automatically provide all the details and make it easier for the government to conjure up supposed crimes and to exact retribution.

It's time to rethink how disclosure is applied to the political class as well. Some conservatives in recent years have proposed that disclosure should be limited to contributions to (though not spending by) candidates and political parties. The argument is that Americans arguably might benefit in knowing who is donating to elected politicians.

Maybe so. Then again, even this type of disclosure gives the government—in particular incumbents—extraordinary power. In 2010, a professor, James Huffman, ran for a Senate seat in Oregon. He lost. The next year, he ran a piece in the
Wall Street Journal
describing his experience with disclosure.

“Here's how it works. A challenger seeks a contribution from a person known to support candidates of the challenger's party. The potential supporter responds: ‘I'm glad you're running. I agree with you on almost everything. But I can't support you because I cannot risk getting my business crosswise with the incumbent who is likely to be re-elected.'

“Sometimes he adds that he has matters pending before a federal agency. Or that she has been working with the incumbent on legislation that will benefit their company. Or that he has a government grant pending.

“I heard these responses literally dozens of times in my campaign in Oregon. Sometimes I was told that someone on my opponent's staff had called with a reminder that supporting me was not a good idea.”