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To Oliver, Stella, and Frances—the loves of my life.
And to Alaska—for letting me dream again.
Introduction
Most people wouldn’t think of January 21, 2010, as an important date. It isn’t Christmas. It isn’t 9/11. It isn’t a national holiday.
Yet that day marks a turning point in American politics.
January 21, 2010, is when the Supreme Court ruled on a case known as Citizens United. To listen to President Barack Obama, or Senator Harry Reid, or any number of self-proclaimed “good government” organizations, this decision mattered because it marked a new tidal wave of “dark” money and “shadowy” organizations into elections. It supposedly gave powerful special interests new control over democracy.
Citizens United didn’t do any of that. But it did unleash a new era. It set off a new campaign of retribution and threats against conservatives. Citizens United launched the modern intimidation game.
Up to that day, Republicans and Democrats had played a different game, a familiar one. Both sides had spent a hundred years using speech laws, also known as campaign finance laws, to bar their respective opponents from taking part in elections. Democrats barred companies. Republicans barred unions. Democrats restricted right-leaning groups. Republicans restricted left-leaning groups. The laws kept piling up and up, until the Supreme Court could no longer justify the assault on the First Amendment. Citizens United swept much of it away. Five justices restored the speech rights of millions of Americans.
The political right and libertarians mostly celebrated the decision as a triumph for democracy. The political left had the opposite reaction. Obama was on the ropes. He’d passed Obamacare, and Dodd-Frank, and a blowout stimulus spending bill—and America hadn’t liked it. The party faced a wipeout in the 2010 elections. And now the high court had said Democrats could no longer legally shut up the companies and conservative nonprofits mobilizing against his party.
So the left moved to plan B. It moved to harass and scare and shame its opponents out of speaking.
Some in the liberal movement, including Obama and congressional Democrats, trained the federal government on opponents. They encouraged, explicitly and implicitly, the IRS to target and freeze conservative groups during election years. They called out conservative donors by name, making them the targets of a vast and threatening federal bureaucracy. They filed complaints with federal regulators and the Justice Department, calling on them to hassle or bar or prosecute their rivals. They came up with proposed executive orders and new IRS and SEC and FCC rules to order or frighten the other side out of the electoral process.
Powerful elected politicians used their positions to hold hearings into conservative political groups and to scare off donors to those operations. They sent letters to companies and think tanks and nonprofits, demanding to know who funded them, and whom they funded in turn. They launched investigations and leaked select details to the press. They flooded groups with document requests to drive up their costs and slow down their work. They made clear that those who donated “wrong” would end up on blacklists, or in front of Congress, or subject to boycotts.
Unions and liberal financial firms threatened to withdraw their money from companies that continued to speak. They pressured shareholders to force corporations to withdraw from the political scene. Activists camped outside CEOs’ homes and staged rallies outside corporate headquarters.
Liberal prosecutors stepped up to threaten litigation against organizations that didn’t hand over names of donors, so that those donors could be subject to the same treatment. Some prosecutors went much further: They sent armed police to march into houses in predawn raids, to let their opponents know that their exercise of free speech might land them in prison.
Liberal activists took to the streets—to urinate on houses, and block the entrances to stores, and stalk those who didn’t agree with them on political issues. They left threatening telephone messages, and delivered ugly e-mails, and got people fired from their jobs for holding unpopular political views.
The intimidators embraced the tools that remained to them. They embraced disclosure laws, using the information they gleaned to create their lists of targets. They embraced arcane bits of campaign finance law, engineering new ways to persecute their opponents. They embraced the Internet and social media platforms, to launch protests, and badger free-market advocates, and even to create searchable, walkable maps that allowed them to harass people, one home at a time.
They also cleverly cloaked all this behind a claim of good government. Citizens United, they said, threatened to put powerful and nefarious forces in charge of democracy. And therefore all of their actions and tactics were justified in the name of the people. It was right to make Tea Party groups wait five years for permission to speak. It was right to send private investigators to dig into the divorce records of conservative donors. It was right to subject federal contractors to political litmus tests. It was right for prosecutors to issue gag orders. It was right to go to the Senate floor to vote to alter the First Amendment, and to put government in charge of speech. Getting rid of speech was for democracy’s own good.
All these things happened. The stories are in this book. That they did happen, and are still happening, requires every American to rethink some conventional wisdom about the merits of speech and disclosure laws.
Nearly sixty years ago, the Supreme Court issued a groundbreaking decision, NAACP v. Alabama, that protected the rights of Americans to engage in politics with some degree of anonymity. This was the civil rights era, and blacks were being targeted, firebombed, and shot at for daring to speak out. The high court understood how corrosive this was to democracy, and declared that the Constitution provided some measure of refuge to citizens at risk of political retribution.
Yet the Court’s brave stand slowly gave way to Nixon-era worries over electoral corruption. It rubber-stamped one campaign finance and disclosure law after another, eating away at its free-speech and anonymity legacy. Conservatives embraced the laws too, hoping to land on the right side of good-government history. In doing so, the conservative movement turbocharged its own muzzlers. Over time, the intimidators came to use the laws themselves—the ones supposedly designed to guard the electoral process—to intimidate.
Today, every American is at risk of retribution, because those who seek to control the debate do not make distinctions based on party affiliation. This book is largely about the new attempt by left-leaning organizations to shut down conservative speech. But the stories show that those who want absolute control over the debate are happy to silence anyone who proves a threat to their ideology.
They feel they must. Barack Obama ushered in a new era of liberal governance, yet one that has been rejected by significant numbers of Americans. The backlash brought the Democratic Party to new lows—to its smallest congressional and state majorities in nearly a century. Unable to win the debate in Washington, Obama has taken to imposing his will through executive orders. Unable to win the debate in the wider country, the liberal movement has decided to just shut it down.
This book chronicles
the rise of those intimidation tactics—their genesis, their refinement, and the toll they’ve taken on free speech in America. The history is told through real stories, of real Americans, who faced silencing. The book as a result has almost accidentally become a record of the heroic attempts by those targeted to fight back, to make their voices heard, and to shore up the rights of their fellow citizens.
Those stories, though inspiring, ought to nonetheless be heard as a clarion call—particularly to the courts. In the 1950s, the high court recognized the stakes in the civil rights battle and felt compelled to secure the free-speech rights of black Americans. Today, Americans are again being targeted on the basis of their political views; they again risk losing their jobs and reputations for speaking out; they again face economic and community reprisal; they again face a government that is leading the charge to strip them of basic rights. Only this time, those who would shut them down are more powerful, and have more tools.
Indeed, today’s environment is scarier. In the 1950s, the state and Jim Crow defenders had to work hard to conjure up a list of names of people to go after. They had to go to court. Today, all that information is available in a nanosecond, on any iPhone or computer, via any election disclosure site. Americans know this, and are increasingly scared to give to political causes, to join political groups. They have seen what happens. They know that if they take part, they will be called up, served up, beat up, and run out.
The intimidation game is working.
Chapter 1
An “Oh Shit” Moment
Washington spent two years denying Karen Kenney all the things she’d thought her basic rights: free speech, a fair hearing, equality under the law. Now it was denying her a bathroom break.
She’d got the call two days earlier. Come to Washington, said the House staffer, help us tell the world your story. She’d hustled—to cancel clients, to conjure up a dogsitter, to arrange the long flight from California. She’d rustled up a dress for the cameras. She’d touched down the night before the hearing, and only after a TSA agent confiscated the mousse she’d belatedly bought to bring order to her hair.
Kenney is hyperorganized, so she arrived that June 2013 day more than an hour before the big show. She sat in a little anteroom as Republican staffers prepped her and her fellow newbies in hearing basics: Sit here, not there; don’t forget to turn on your mike; wait until you are called; do this if you are nervous; please hand in the requisite 150 copies of your remarks. Kenney observed that at least when it came to their own show, Washington really did care about rules. Twenty minutes in, the homily ended, and she decided on a quick trip to the ladies’.
The Longworth building is like every Washington federal building—an M. C. Escher drawing. No beginning, no end. She spent precious minutes hunting down the bathroom. Precious minutes later, she was back at the hearing room, only to discover she’d left her wallet in the stall. Another return trip, and she found spectators lined up, crowding into the gallery. House members were taking their seats. She rushed to the guard and anxiously explained that she was supposed to be in a witness chair. Really, truly, she needed to get in. He didn’t believe her. He looked her up and down and judged her an eager bystander who was hoping to cut the line. Kenney politely explained that, while she may not look it, she really was supposed to testify. No dice.
At the last moment, a GOP staffer appeared at her arm and rushed her into the room. As they scurried in, Kenney contemplated just how fitting was this moment. She couldn’t even get into her own hearing.
* * *
The story Kenney tells that day is one that should never happen in America. Her tale involves the Internal Revenue Service. One mid-February day in 2012, she’d stood in the staff room of her group counseling practice in Encino, California, opening her mail. As she shuffled through the catalogs and bills, she noticed a large package from the IRS.
Kenney is a serious person and a careful speaker; most of her sentences are delivered with articulate precision. But she also has a habit of ending them with funny asides. (My first thought on seeing that packet? The only two words any American thinks when they see a letter from the IRS: “Oh shit.” )
The tax agency wanted answers to more than eighty questions about her small nonprofit, the San Fernando Valley Patriots (SFVP). In 2010, Kenney used an Internet service to apply to the agency for tax-exempt status. It was a straightforward process, and she’d thought it would only take a few months. Instead, she’d sat in radio silence for two years. And now the IRS was telling her she had twenty days to answer its questions, and that if she got anything wrong she could go to federal prison for perjury. (Like everything with the feds, they do it backwards. Most people, it is hurry up and wait. Them, it is wait and hurry up.)
At the hearing, more than a year after that IRS letter day, Kenney impressed upon several dozen Ways and Means Committee members that these weren’t your average factual inquiries. “Generally, the questions were a demand that read like the chilling words from the 1950s: ‘Are you now, or have you ever been…?’” The echo of McCarthy set members to shifting uneasily in their seats. The federal government was supposed to have learned something from those dark years. Or maybe not.
Kenney would find out only long after opening that packet that SFVP was one of 298 groups the IRS targeted—delaying their applications, freezing them out of elections. She’d learn that her own group had landed on the list for the simple reason that it had the word “patriot” in its name. She’d learn that top IRS officials, when questioned by Congress under oath, had for more than a year denied that this was happening. (Now, remind me again, how many of them are in federal prison for perjury? Oh, that’s right. None.) She’d listen to IRS official Lois Lerner in 2013 finally use a planted question at a late-Friday tax conference to let slip the news that the agency had in fact been targeting and freezing conservative applications. She’d wait to get answers—from Congress, from the Justice Department, from the Obama administration—about how and why her right to speak had been put through a political wood chipper.
She’s still waiting.
* * *
George W. Bush, as one of his final acts, signed a $700 million bank bailout. Barack Obama had barely warmed his Oval Office chair before he signed his own blowout $831 billion stimulus into law. A day later, on February 18, 2009, the administration unveiled yet another spending bonanza, this one to subsidize underwater homeowners. A day after that, CNBC business editor Rick Santelli lost it on the Chicago trading floor, raging that Washington was on a bender. He proposed that his city host a modern Boston Tea Party, this time to dump derivatives securities into Lake Michigan. “President Obama, are you listening?” he shouted on prime-time television.
Obama wasn’t. But plenty of pissed-off Americans were. Within hours of Santelli’s cri de coeur, Tea Party websites started popping up across the country. Within a week, forty cities had coordinated to hold a Tea Party protest day. The reference was to 1773, but with a modern twist. The leaders declared themselves Taxed Enough Already. TEA. TEA Party.
Kenney was among those who’d watched with alarm as Bush bailed out the banks. The alarm grew to frustration as Obama pumped his stimulus and outlined plans for even bigger bailouts. In April 2009, she heard that local activists were staging an antispending rally on Tax Day, one of more than two thousand protests planned nationally. She’d jumped into her silver Honda Civic and motored to the Van Nuys Civic Center ( fifteen minutes with a tailwind; twenty when you hit the lights) for the evening event. Eight hundred Americans lined the sidewalks, holding signs, waving flags. The microphone played host to a hit list of taxpayer advocates, talk-radio hosts, even a conservative comedian—all encouraging the attendees to be heard. Kenney left fired up.
These days, Kenney’s a sixty-four-year-old psychotherapist working in a small practice in Encino, mostly with veterans with severe trauma. But it’s a second career. She spent four years as a composing typist with the Los Angeles Times, then nine years as
a reporter at the Santa Monica Evening Outlook and the Los Angeles Daily News—on the police blotter, doing medical writing, radio work. It was all exciting stuff, though it left her unfulfilled. Journalists shine lights on problems; they never do anything. So in 1987 she went back to school to become a counselor, and ultimately to grind out a doctorate in psychology. Her new mission is to change lives rather than document them. Her smallish waiting room at her practice is full of handouts and signs that celebrate learning, self-growth, and taking charge.
Which is all, too, very much Kenney. She’s a Valley girl, with short brown hair, a wide-open face, and a frequent smile. (I myself like the description short, pudgy, and cute.) She’s a history and government buff, able and willing to tell you the correct spelling of the fourth president’s wife (It’s D-o-l-l-E-y!), as well as the height of Dolley’s diminutive husband ( four foot eleven). Kenney married early, divorced early, and turned down six subsequent marriage proposals in penance for breaking her first vow. She lives in a tiny house with a big yard, along with a tiny dog with a big personality, in Lake Balboa. She’s a thinker, knows her mind, has calm, happy energy, and looks fifteen years younger than her age. (Turns out drinking formaldehyde really does work. Don’t care what they say.)
Kenney’s long been a political activist, if never a partisan warrior. She and her two siblings were adopted, and raised in a rural part of the Valley. (Did you know I have an identical twin sister? I weigh more than her now. Do I look pleased?) Her father, who worked in construction, never had more than an elementary school education, and money was always tight. He nonetheless wanted more for his kids, and enrolled his daughters in Catholic school starting in second grade. Kenney credits the nuns for her moral base—for a work ethic, for a sense of duty, for a purpose. In her junior college, she was the first to organize an Earth Day. In her junior year, six chemistry majors drafted her to represent them on the student body senate, even though she was a history major. She did public speaking, volunteered for a local politician. She’s missed voting in only one election in her life. (Can’t remember why. It was either because I was sick or had a flat tire. Every important thing I’ve ever missed is because I’m sick or have a flat tire.)
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