The Intimidation Game (4 page)

And once again, the Supreme Court agreed. In a 6–3 decision, Justice Hugo Black struck down L.A.'s ordinance, writing that “an identification requirement” restricted “freedom of expression.” He cited the glorious history of “anonymous pamphlets, leaflets, brochures and even books” that had allowed “persecuted groups” to “criticize oppressive practices and laws.”

Black's opinion marked an important shift for the Court, a much broader, more direct way of reinforcing anonymous political speech. In the NAACP case, the Court had cited anonymity as a form of protection—and thus a reason to stop the state from requiring lists of names. Here, Black was heralding anonymity as its own force for political good, a means of enriching political debate. “It is plain,” he wrote, “that anonymity has sometimes been assumed for the most constructive purposes.”

He was right. Western Europe boasted a riotous tradition of anonymous political writing, one that transferred to American colonial shores. A German-American printer in New York, John Peter Zenger, in 1733 published newspaper copies excoriating the new colonial governor, William Cosby. Zenger didn't write the articles; he published broadsides from political activists writing under pseudonyms. Cosby's council ordered Zenger's arrest for seditious libel and demanded that he reveal the names of the writers. He would not, and spent months in jail. His case became a sensation, encouraging one of the most famous lawyers of the day, Andrew Hamilton, to defend him at trial. Hamilton offered a ringing defense of the rights of the common man to speak and write freely, in any form. The jury took all of ten minutes to return a verdict of not guilty.

The most famous political words of the Revolutionary era, and of the Founding, were anonymous. Thomas Paine's
Common Sense
—his attack on the tyranny of George III—was an instant bestseller, with more than seventy-five thousand copies sold in just a few weeks in a nation that at that time contained just two and a half million residents. John Adams credited Paine with firing the Revolution, noting, “Without the pen of the author of ‘Common Sense,' the sword of Washington would have been raised in vain.” And yet the first edition of
Common Sense
bore no author, and the second only the inscription, “Written by an Englishman.” Paine felt that what mattered was “the Doctrine, not the man.”

In 1774, a wickedly bright college student, all of age seventeen, wrote his first essay—defending the Continental Congress—and published it anonymously. His name was Alexander Hamilton. John Adams wrote several anonymous essays in the
Boston Gazette
in 1765 in response to the newly imposed Stamp Act. Isaac Collins, who printed the first family Bible in America, famously refused an order by the upper house of the New Jersey state legislature to reveal the real name of “Cincinnatus,” who'd written a scathing attack in his newspaper against Governor William Livingston. The very same governor would a few years later write under the name “Scipio” to criticize his legislature. Benjamin Rush, a Pennsylvania signer of the Declaration of Independence, would anonymously (under the name “Leonidas”) in the
Pennsylvania Packet
accuse members of Congress.

One of America's most famous political documents, the
Federalist Papers
, was written by Alexander Hamilton, James Madison, and John Jay under the collective name “Publius.” These authors didn't fear for their lives, but still had good reason for choosing a collective pen name. Clinton Rossiter, a renowned historian of the
Federalist Papers
, explained that the men wanted their arguments debated on the merits, free of preconceptions readers might have about the authors themselves. And they didn't want controversial writings to undermine other work they were doing in government or their communities.

And the tradition continued. The chief justice of the U.S. Supreme Court, John Marshall, in 1819 wrote a series of pieces anonymously in a newspaper to elaborate on a landmark court ruling. And Abraham Lincoln was famous for writing anonymous attacks on his political opponents.

At the root of Justice Black's praise of anonymity was a heartfelt belief in the U.S. project. American democracy is premised on a belief in an educated, rational audience. The Founders didn't think government should be filtering speech. Americans could and must be trusted to hear the widest range of it—both disclosed and anonymous—and make their own judgments.

The Talley and NAACP cases would become the first in a growing pile of judicial decisions to protect the freedom of association and privacy, because the courts were getting hit with such cases right and left. Canny politicians had recognized the tool they had in disclosure laws. Segregationists like Patterson had got to the idea first, but it didn't take long for powerful state players, high and low, to realize that a little “transparency” could go a long way to shutting up an opposing politician or a meddlesome activist.

In 1967, a Democratic state attorney, Jeff Mobley, appears to have figured out a new way to do this: Go after donors. He issued subpoenas, calling on the chairman, secretary, and treasurer of the Arkansas Republican Party to hand over information about the party checking account. Arkansas had been essentially a one-party (Democratic) state since Reconstruction, but the GOP had started to gain a foothold—and Democrats didn't like it. Mobley claimed to be investigating whether Republicans had violated election laws during the 1966 election, when it paid supporters to knock on doors and get out the vote.

Republicans believed that what he really wanted was a list of the individuals contributing to his political rivals, and details on who the Republicans were paying to help it grow. GOP party officials sued in federal court, and in 1968 a panel of three judges expanded political anonymity to money and financing. The judges admitted that there are times when there is a legitimate state or public interest in seeing the financial records of political parties, and those records therefore should not be “completely immune from public disclosure.” But they decreed that there was no reason here for Mobley to obtain the identities of contributors. The Court boldly plowed new ground, pointing out the connection between money and speech—noting that, apart from voting, “financial contributions” were the only other way “most people can participate effectively in politics.” To the extent that the government “unreasonably inhibits or discourages” this, it violates the First Amendment. Moreover, forcing disclosure subjects some to “potential economic or political reprisals of greater or lesser severity.”

Reprisals do happen. In 1998, Margaret McIntyre showed up at a public meeting at Blendon Middle School in Westerville, Ohio, and handed out flyers opposing a referendum on a new school tax levy. The flyers weren't misleading or false. A few referenced her, while a few said they represented “
CONCERNED PARENTS AND TAX PAYERS
.” A local official didn't like that the school was being bucked in its campaign for more money, and filed a complaint with the Ohio Elections Commission claiming that she'd violated election law by not disclosing information required under Ohio laws. She was fined $100, and the Ohio Supreme Court upheld the fine. The U.S. Supreme Court did not. It instead broadened its privacy doctrine to encompass entirely anonymous political speech.

Liberal justice John Paul Stevens wrote for five other justices, finding that “the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.” Stevens reprised the arguments in favor of anonymity. He talked about the risk of economic reprisal or government retaliation; of a desire for privacy; of the fear of social ostracism. He noted that the practice “provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.” Justice Clarence Thomas, in a rousing concurrence, gave a powerful, chapter-and-verse rendition of the history and merits of anonymous speech in the United States.

The biggest disappointment of the
McIntyre
case was Justice Antonin Scalia, who normally supports freedom. Here instead, he filed a dissent (joined by William Rehnquist) in which he argued for more intrusive government power. His argument was weak: Because lots of states had disclosure rules, it was now a “tradition” that must be upheld.

The
McIntyre
decision was one of the last intelligent decisions the Supreme Court would issue on association and anonymity. In the nearly twenty years since, it has instead been in thrall to the growing public enthusiasm for more “transparency” in campaign speech and spending. The Court's failure to honor its past positions would play inexorably into the trammeling of Karen Kenney.

Senator Barack Obama
was frustrated. The presidential aspirant had pulled off a surprise victory in the Iowa caucuses, and only a few weeks later crushed Hillary Clinton in South Carolina. By the end of January he'd pushed every other credible Democrat but her from the race and surged in national polls. The press loved him, and quickly predicted that come Super Duper Tuesday—February 5, when twenty-four states held their contests—he'd have the nomination sewed up.

Instead, the Obama team ran into the grinding power of the Clinton machine. Hillary threw vast money and resources at targeted Super Tuesday states, and ended the day with nearly as many delegates as Obama. The race was once again in a standoff, and Obama was irritated. He wanted this done, and yet independent groups were gearing up to promote Clinton in the big upcoming primaries in Ohio and Texas. So a few weeks later, on February 21, 2008, the national presidential press corps was summoned to a conference call with Bob Bauer.

A bearded and bespectacled stereotype of a Washington lawyer, Bauer spent thirty years working political law on behalf of Democrats before becoming the Obama campaign's chief attorney. He is smart, aggressive, and steeped in politics. His wife, Anita Dunn, ran Obama's communications team. But the skill that has come to define Bauer—and in consequence national politics—is his particular expertise in campaign finance law. Bauer understands the power of money and speech in politics. More important, he understands the power of denying it to others.

As the reporters tuned in, Bauer wasted no time identifying his target: an outfit known as the American Leadership Project. A pro-Clinton group, ALP was what's known in politics as a 527. Under the election rules at the time, ALP could run pretty much any kind of ad it wanted—so long as it didn't expressly endorse a candidate. And it could accept money in unlimited amounts—so long as it disclosed its donors to the IRS. ALP raised millions and intended to put it all into spendy ads that either praised Clinton, or hit Obama, on the issues. Obama was outmatching Clinton in overall fund-raising, but ALP threatened to even the odds in key primary states.

Bauer didn't like that, and he made his legal case to the reporters: ALP's clear support for Clinton was the functional equivalent of expressly endorsing her, he insisted. He claimed that ALP was, as a result, engaged in a “very clear runaway case of lawbreaking” vis-à-vis campaign law. Bauer intended to go to the Federal Election Commission to complain, though he wasn't stopping there. Rather, he issued two threats, both near-unprecedented in presidential politics.

First, he was calling on the Justice Department to undertake a
criminal
investigation of the group. Second, he demanded that federal law enforcement focus its probe not on ALP as an entity, but on its individual leaders, its staff, and (most sinisterly) its donors. “There's going to be a reckoning here,” he warned. “It's going to be rough—it's going to be rough on the officers, it's going to be rough on the employees, it's going to be rough on the donors.” In case any Hillary financial backers missed the point, he repeated, “Whether it's at the FEC or in a broader criminal inquiry, those donors will be asked questions.” He referred reporters to a memo he'd authored the prior day, in which he'd laid out his legal case and had reiterated—twice—that “liability for violating the federal campaign finance laws is both civil and criminal,” and “any investigation” will “involve the Project's officers, staff and donors.”

The threat was jaw-dropping, given that independent groups were spending far more on behalf of Obama than they were on Clinton. Moreover, the FEC had issued a regulation a year earlier that spelled out how 527s could operate, and ALP was clearly following the rules. Bauer's charge of lawbreaking was bogus, and everyone—even the press corps—knew it.
Politico
's Ben Smith was honest enough in his resulting story to cast the Bauer threat as a bare-knuckle effort to stop ALP “before it starts, and to scare off other, similar efforts.”

A spokesman for ALP, Roger Salazar, was incredulous. “Is that guy for real?” he responded to the
New York Daily News
. “That [is] a blatant attempt to quell free-speech with unsupported legal attacks. It is the legal equivalent of schoolyard bullying.” As Bauer in the coming months ratcheted up his threats, a furious Jason Kinney, head of ALP (and a fellow Democrat), would publicly accuse the Obama lawyer of having gone from “credible legal authority” to “political hatchet man.”

The intimidation nonetheless worked. Bauer had made his threats clear, and ALP donors had no interest in an FBI knock on their door or in being named publicly by Mr. Bauer in his next national press conference. Contributions dried up.
Politico
would later report that Bauer's words had “the effect of scaring [Clinton] donors and consultants,” even if his efforts hadn't “result[ed] in any prosecution.”

Bauer had just laid the groundwork for an entire political movement to come.

Bauer understood the modern power of using government—even if only the threat of it—to silence political opponents. And his special insight was realizing that the tool for getting those government drones trained on the right targets was campaign finance law.

He was hardly the first person to figure it out—he was just a modern innovator. All throughout history and all across the planet, government officials have used state power to silence critics. It's what government officials do.

American politicians have always had a harder time of it, though. They've always faced a particular hurdle: the Constitution. The Framers understood the real threat to liberty, and so wrote freedom of speech into the opening lines of the Bill of Rights. Americans are passionate about those First Amendment freedoms. And the courts, too, have been highly reluctant to mess with pure speech expression. So what's a would-be censor to do?

Look to the money. (It's always about the money.)

The First Amendment guarantees a right to speech, but says nothing about a right to spend money on speech. Why would it? In colonial days, a frustrated citizen might stand in the town square to denounce government, and feel confident his friends and neighbors would hear. In today's modern campaign world, it takes money to do the equivalent. How else does a citizen or a group send a message about a useless U.S. president to a nation of three hundred million? How is that possible without spending a dime on a flyer or an Internet site or a radio ad or a homemade documentary?

And that is how U.S. politicians get their hands on the First Amendment. They do it by proxy. Regulate money and you regulate speech. And better yet for the pols, regulating by proxy has extra upsides.

For one, most Americans don't get the connection. Tell the average American that you intend to restrict his right to speak at a town hall meeting, and watch the pitchforks come out. Tell the average American that you intend to regulate money in politics, and watch the praise flow. The architects of money restrictions are very good at selling their campaign finance rules. They make the case that the laws stop corruption; Americans hate corruption. They make the case that the laws empower average citizens and hinder powerful players from buying elections; Americans love the idea of the little guy. They make the case that the laws provide honesty and openness in elections; Americans love to be honest and open.

What they never mention is that few politicians have ever passed a campaign finance law for those reasons. Washington has its share of fanciful good-government types, who honestly (if mistakenly) believe that campaign restrictions help elections. But the men and women who make the laws aren't that naïve; they pass these restrictions for their own benefit. Often, they pass them as a means of quieting their opposition. Just as often, they pass them to survive a scandal: Some official is caught misbehaving, and Washington's way of extracting itself from blame is to impose new speech and money regulations on everyone else.

Second, regulating speech by proxy provides politicians with useful information—information they wouldn't otherwise be able to obtain. As Justice Clarence Thomas wrote in that rousing 1995 concurrence, government has a long and inglorious history of harassment—one reason why the country has an equally long and glorious tradition of anonymous speech.

Government has plenty of tools for rooting out targets, but at least in the past it was hard work. New York colonial governor William Cosby had to arrest John Peter Zenger and hold a trial to try to force him to disclose the names of contributors to his newspaper. Republican senator Joseph McCarthy in his 1950s witch hunt had to hold hearings and issue subpoenas to rootle out suspected communists. Alabama attorney general John Patterson had to dig deep to find a law he could use to prosecute the NAACP to try to unearth the names of its members.

Campaign finance law, however, makes the job of identifying political opponents dead easy. You can't regulate money unless you know who is giving it, and so at the beating heart of every finance law are sweeping disclosure requirements. And in the age of the Internet, that means that a list of every person who has given to most every cause is sitting in the ether. Drafting an enemies list requires little more than a few mouse clicks. Bauer took care to include donors in his threats against ALP, because he knew they would prove sensitive to being outed and attacked.

Finally, regulating by proxy gives politicians new ways to intimidate. The First Amendment is a guarantee to the people and a restriction on government. “Congress shall make no law…” Campaign finance rules, by contrast, flip this. Finance laws are a restriction on the people; they empower government. As Bauer warned ALP, these modern finance laws have the force of both civil and criminal penalties behind them. The result is a bizarre situation. Stand on the street corner to complain about Barack Obama, and the First Amendment bars government from doing anything about it. Write a big check for a TV ad that complains about Barack Obama, and campaign finance rules may allow the government to arrest and jail you.

Around 2008, the left started to realize the potential of combining all these tools. They had disclosure rules that let them identify opponents. They had a (willing) government they could pressure to employ finance laws against those opponents. They had the extraordinary new power of the Internet and social media, which liberal activists could use to mobilize instant pressure campaigns against any target. And they had the “argument.” They could tell a credulous public that all their actions were aimed at “cleaner” and “more open” elections.

This is the modern intimidation game. And it now defines American politics.

Bauer, as the author of several campaign finance books, knew better than most the real history of the laws and their potential for muzzling. Indeed, his call on that February day was only the most recent and most consequential of a series of moments that led to the intimidation game.

One came in 1907, courtesy of a deeply unpleasant man named Benjamin Tillman—a wealthy landowner, a Democrat, a South Carolina senator, and a white supremacist. For all those reasons, he hated Teddy Roosevelt and the corporations that disagreed with Jim Crow policies.

TR was a trust buster, but he was first and foremost a politician. He'd started attacking corporate giants not long after taking over for the assassinated William McKinley. But as the 1904 election approached, he knew he'd need business community support. He toned down his rhetoric and started courting every titan in the land. The E. H. Harrimans and J. P. Morgans were wary of Roosevelt, but they were far more wary of a populist and radical Democratic Party. And they saw in the reelection a chance to soften TR's stance toward them. They poured money into his campaign. Henry Clay Frick, the steel baron, gave him $100,000; J. P. Morgan, more than $150,000. (In today's dollars, each of those gifts would total well more than $2.5 million.) By some estimates, corporations floated nearly 75 percent of TR's reelection bid. He won easily, albeit against a highly flawed Democratic nominee.

Tillman, a committed Democrat, was incensed. The South Carolinian despised anyone and anything with a liberal attitude about race. That included Roosevelt, who had in Tillman's eyes committed the unforgivable sin of inviting Booker T. Washington to the White House. And it included corporations, many of which publicly opposed the South's segregationist policies, in part because they disliked having to spend money on separate-but-equal facilities.

Democrats had heaped abuse on TR for accepting all that corporate cash, and by the end of the 1904 campaign had thoroughly soured the public on big money in politics. Tillman saw his opportunity to undercut both the GOP and its corporate benefactors, and so proposed one of the first sweeping federal finance laws: a total ban on corporate contributions to campaigns. He also had an unlikely and powerful backer for his campaign: Teddy Roosevelt. Eager to tamp down criticism of his donations and to relaunch his trust-busting campaign, the newly elected president used his first address to Congress to declare his new dedication to cleaning up the finance system he'd so skillfully used to get reelected. Roosevelt signed the Tillman Act into law in 1907.

And thus the pattern was set for nearly every finance law to come. The Tillman Act wasn't passed out of some thoughtful, benevolent congressional desire to clean up dirty politics. It
was
dirty politics. Democrats proposed and passed it to kneecap political rivals. A Republican signed it to mute criticism of his prior actions (a decision made monumentally easier by the fact that TR had already pledged not to run for office again, so he wouldn't need any cash in the future). And the joke was that subsequent events proved that corporate money wasn't in fact corrupting. TR would go on to tear down most of the industrialists who'd backed him in 1904. Frick would later famously moan to fellow millionaires, “We bought the son of a bitch, and then he didn't stay bought.” The Tillman Act was government silencing a sweeping category of critics. All under the guise of good government.