The Intimidation Game (6 page)

(I felt obliged in our interview to break it to Smith that his elevator ride wasn't all that special. When I was a young editor for the
Wall Street Journal
editorial page, one of my first jobs was editing Hunt's weekly column. Hunt is a jolly, warm, and smart man, and I always enjoyed our weekly talks. He's also known for a short fuse, and another of my jobs was to submit to the occasional Hunt scream-fest. It was my first lesson in hanging up on someone. To Al's credit, he'd often follow these up with a wine-and-cheese basket, sent by way of apology. As a young and poorly paid staffer at that time, I occasionally joked whether, in moments of low funds, it might be worth provoking Al into a temper.)

Smith points out that you also don't have to be the average unknown citizen to feel intimidated. He himself is a respected academic, operating in a world of higher education that rarely practices the tolerance it preaches to its students. He ticks off the long list of ways that a university can make life difficult for a professor who practices the “wrong” politics. Want tenure? You may not get it. Want that deanship? Not likely. Want to teach a particular class? They may say no. Want more money in your department? Not possible. And the insidious part is that schools and faculties can access that disclosure information on the sly and make those judgments without ever admitting to them. “How do you even know when you are getting harassed?” notes Smith. “How do you know what jobs you didn't get because of your political views?” Smith admits that even he at times has limited his political contributions to $199, just short of the enforced disclosure limit. “I'm a pretty tough guy. I like to think I meet Scalia's standard for ‘courage.' I've made a career of saying what I think, and standing by it. But there are times when I know a donation might disturb a social relationship I have, or a case that I'm working on, or a situation with an organization I'm connected to. Some people want to preserve family harmony; or they don't want their neighbors to know what they are worth; or they don't want their kids passed over for the varsity team. And that's the point: There are all kinds of reasons why people, in different circumstances, might not want to broadcast their politics. What right has the government to force them to do so?” A lot of the intimidation is subtle, but Smith muses that it is only a matter of time before disclosure leads to deadly retribution—say the bombing or shooting of a pro–abortion rights or anti–gay marriage financial contributor.

Smith's other insight at the FEC: the degree to which disclosure is the hook for yet more speech laws. “It's standard operating procedure for the pro-regulation crowd,” he explains. “They will say, ‘Well, we just need to know what this group or that group is doing.' But once they have that information they will say, ‘Look, how bad it is what this group and that group are doing! We need more rules and regulations to stop it.' And that's how you end up with the insane system we have today.”

Smith became one of Washington's loudest opponents of McCain-Feingold, an archnemesis to John McCain, and a big reason why the legislation barely passed the Senate. Among his predictions was that the law—the most massive and complex juggernaut of regulations yet—would set off an unprecedented round of political jockeying, as the dueling parties tried to game the new system to their electoral benefit. In this, too, he was right. Washington had done the Tillman Act, Smith-Connally, Taft-Hartley, FECA. But it was McCain-Feingold that laid the groundwork for a new era of political brutality, one that led directly to the left's new tactics and the modern intimidation game.

President Bush signed the law on March 27, 2002. Bush had publicly said that he thought parts of the law were unconstitutional, yet he feared a public hammering if he vetoed it. So he signed—a sin for which many free-speech advocates have never forgiven him. The new rules weren't set to kick in until 2003, but well before that Democrats and Republicans geared up to manipulate the law.

Democrats pushed the bill because they hoped it would resonate with the public and help against opponents. But savvier party members were outright terrified that it would all go wrong. This was the clear-eyed crowd that knew, for all its complaints about big, shadowy money in politics, that the left had long been far more dependent on it than the right. McCain-Feingold essentially outlawed it, and therefore potentially gave Republicans—who thrived on small donations—a big advantage in the upcoming 2004 presidential race.

In a 2003 piece by Seth Gitell in the
Atlantic
entitled “The Democratic Party Suicide Bill,” Joseph Sandler, counsel to the Democratic National Committee, said what few other Democrats were willing to say. The law was “a fascist monstrosity.” He continued, “It is grossly offensive…and on a fundamental level it's horrible public policy.…And it's a disaster for the Democrats. Other than that, it's great.” Bauer, at that time a counsel to the Democratic Senatorial and Congressional Campaign Committees (which exist to elect and reelect Democrats to Congress), also made the rounds, warning party leaders that they needed a plan.

They had one pretty quickly. For decades, the IRS code had allowed Americans to create tax-exempt political groups known as 527s. These groups could accept unlimited donations, so long as they didn't coordinate with campaigns and focused solely on issues. The political parties and their operatives had never been much interested in them, since the parties had always been able to raise plenty of money in their own right. But McCain-Feingold severely cracked down on party fund-raising. It hadn't, however, imposed nearly as many restrictions on 527s. Suddenly, every Democrat and their dog was setting one up. And all that big money the party had traditionally relied on flowed into them. George Soros, the billionaire liberal financier, in the space of three months had dumped more than $15 million into three 527 groups—the Media Fund, Americans Coming Together (ACT), and MoveOn.org. He'd ultimately give more than $23 million in the cycle to 527s. Peter Lewis, the owner of the Progressive insurance company, threw that much again at groups set up by Big Labor and trial lawyers.

President Bush's financial advantage rapidly began to shrink. The GOP might have tried matching the Democrats with 527 money. Instead, Republicans became the first in the McCain-Feingold era to (unforgivably) call in the forces of government to silence their opponents. They went running to the FEC, demanding that the campaign finance umpire devise a new rule that would explicitly extend the big-money ban to 527s. Eighty percent of congressional Republicans had voted against McCain-Feingold on free-speech principles, yet in the face of an electoral shellacking those principles went out the Capitol window.

Sitting as chairman of the FEC at that time was none other than Smith. The professor and his two Republican colleagues on the commission knew that Republicans, and the White House in particular, desperately wanted restrictions placed on the 527s. But to the GOP's absolute fury, Smith refused to abandon his free-speech principles and essentially declined to silence the groups. He was publicly scathing about the Republicans' hypocrisy and their attempts to use a law they supposedly hated to cripple their opponents. “If Republicans think they can win by silencing their opposition, they are wrong and they are going to deserve to lose,” he said. Democrats crowed over the victory, with Jim Jordan, the spokesman for both the Media Fund and ACT, telling the
Washington Post
that the FEC's decision meant his groups would charge into the election operating “robustly and effectively.” The media, unsurprisingly, largely failed to point out that it was Democrats who'd wanted all these new rules, and yet were celebrating the continued use of “big money.” Smith earned himself short-term enmity from the right. And he earned no credit from the left, which still viewed him as the enemy.

The operating words here are “short-term.” For it happens that even as the FEC and Republicans were duking it out, a retired rear admiral by the name of Roy Hoffmann had himself discovered the merits of a 527. Hoffmann patrolled the Mekong Delta on Swift Boats during the Vietnam War. In early 2004, historian Douglas Brinkley published
Tour of Duty
, an account of Senator John Kerry's “heroic” Vietnam service. Hoffmann read it. He didn't like it. He remembered Kerry criticizing his fellow servicemen in the 1970s when he was spokesman for Vietnam Veterans Against the War.

Mr. Hoffmann started calling fellow Vietnam veterans. The result was Swift Boat Veterans for Truth (SBVT), a 527 group that would receive generous conservative funding. SBVT launched a campaign against Kerry's presidential bid, with hundreds of Swift Boat sailors signing a statement accusing the nominee of both distorting the conduct of his fellow servicemen and overstating his own contribution to the war. The group would continue to go after Kerry, publishing a book and running extensive advertising hitting him in swing presidential states during the campaign. The allegations caused a firestorm for the Democrat, who spent no small amount of time attempting to rebut the claims. And this time it was Democrats who went running to the FEC; liberal groups like Democracy 21 filed complaints with the FEC, as did the Kerry campaign itself. (The Bush campaign, for the record, also filed complaints about left-wing 527s. Tit for tat.)

John Kerry lost the 2004 election, for a myriad of reasons, of which the Swift Boat allegations were but one. Democrats knew Kerry's many flaws, but they needed someone or something to blame for his defeat, and they latched on to SBVT. Conveniently forgetting that Kerry had benefited immensely from their own well-funded 527 groups, the liberal left decried SBVT as a return of big and ugly money in politics, a skirt-around of all their carefully crafted finance rules.

It's worth noting the depths to which Democrats internalized SBVT as their downfall in 2004. They turned the organization into a verb, referring to any political attack that they viewed as unfair as “swiftboating.” They particularly resented the nature of the attack. Democrats had banked that Kerry, as a veteran, would prove a shield against the public perception that Democrats were weak on national security, especially after 9/11. And they were furious that Republicans had outmatched them in the 527 game, which they'd carefully nurtured as their path to the White House. Years later, the bitterness lingered. When Bush in 2007 nominated naval veteran and businessman Sam Fox as ambassador to Belgium, Kerry led Democrats in a filibuster. Connecticut senator Chris Dodd would spit that he could never give approval to Fox because of his “unwillingness to express regret for providing $50,000 to bankroll” SBVT. In Dodd's view, Fox's willingness to participate in an election made him unfit to represent the world's greatest democracy.

SBVT received financial contributions from well over fifty thousand Americans, mostly in small amounts. Democrats nonetheless obsessed on the contributions from a handful of wealthy Republican donors, including Houston builder Bob Perry, oil baron T. Boone Pickens, and businessman Harold Simmons. Soros had single-handedly given more to Democratic 527 groups than all three of those conservatives combined had given to SBVT. But there's no accounting for a political party scorned.

So they determined it wouldn't happen again. Democrats had a good 2006 midterm election; they took control of the House (the first time since 1994), the Senate, and a majority of governorships. The GOP flailed against an unpopular war, congressional scandals, and the perception that it had lost its ability to effectively govern.

The country slid into the 2008 elections. The Democratic Party, and especially its newest force, Barack Obama, wasn't taking any chances.

Enter Bauer—who wasn't taking any chances with Republicans or Democrats. His attack on the Clinton group during the primary caught a lot of headlines, but it wasn't the first time the Obama maestro pulled this trick. Very early in the primaries, when North Carolina senator John Edwards looked to be a potent force, Bauer took his first steps toward using finance intimidation against an opponent.

It was late December 2007, and Edwards was riding an unexpected surge in the Iowa polls. He was helped by a lot of positive airtime from 527 groups, one (the Alliance for a New America) run by a former Edwards campaign manager and another funded by the big carpenters' union. In a memo released five days before the primary, Obama campaign manager David Plouffe took aim at both. Under the title “Flood of Washington Money in Iowa,” Plouffe slammed the “underhanded” financial support. He berated Edwards for exploiting loopholes and hinted that the groups were breaking finance laws. The goal of Plouffe's memo was twofold: to send a warning shot to the 527s, and to make Obama look pure by comparison (no 527s were supporting him in Iowa). Obama had already joined in the attack, criticizing what he called “huge, unregulated contributions from special interests” and accusing Edwards of trying to get around finance laws. Obama ended up winning the caucuses decisively. Edwards collapsed, and dropped out of the race a few weeks later.

With Edwards out, Bauer trained his fire on Clinton and her own 527 support. The whole campaign joined in. “News broke yesterday that a few wealthy Clinton supporters are gearing up for a massive spending campaign to boost her chances in the big upcoming contests in Texas and Ohio on March 4th,” Plouffe wrote in a February fund-raising e-mail. Knowing how scarred many Democratic voters still were over the Kerry experience, Plouffe took care to blow the dog whistle. “The so-called ‘American Leadership Project' will take unlimited contributions from individuals and is organized the same way as the infamous Swift Boat Veterans for Truth.” Bauer would repeat the accusation, calling ALP a “Swift-boat wannabee.” And he issued his threats to haul the group in front of Justice and the FEC.

All of this was designed to scare off ALP's donors, and the initial attack nearly worked. The ads that ALP planned for Texas and Ohio didn't appear for days, and then only after some funding from a large union came through. The threat was particularly rich given that Obama was in these states benefiting from significant independent help himself. The Service Employees International Union (SEIU) had moved to his camp, and was spending some $1.4 million to support his candidacy in Ohio and Texas. A separate 527, the Fund for America, bankrolled (yet again) by George Soros, was pouring money into ads attacking John McCain on his behalf.