The Intimidation Game

by Kimberley Strassel

  On June 30, 1958, the Court delivered its opinion by way of Justice John Marshall Harlan II—a fact not lost on Carter. Harlan’s grandfather had sat on the Supreme Court generations earlier, where he became famous as the lone dissenter in Plessy v. Ferguson, the infamous decision upholding racial segregation. This Harlan, this time, led a unanimous Supreme Court in redefining free speech, and in support of an organization that had sprung into being partly to fight Plessy segregation.

  “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association,” wrote Harlan, who pronounced it a fundamental aspect of “liberty.” And yet such liberty could be wrecked by “compelled disclosure.” The NAACP had shown that “revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion and other manifestations of public hostility.” Disclosure moreover “may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs.”

  Alabama never did get its names. The case dragged on for nine years and required Carter to make four more trips to the Supreme Court. But he would in the end overturn the contempt charge, and regain his group’s right to operate freely in the state. Far more lasting, he convinced the U.S. Supreme Court—for the first time—to sanctify both freedom of assembly and anonymity, enshrining new and overdue guarantees of free speech.

  These were guarantees that the high court would only strengthen in years to come. Patterson’s strategy for ousting the NAACP from Alabama was quickly replicated by other segregationist states and cities. By the end of 1957, the NAACP was involved in at least twenty-five separate cases seeking its membership lists. Carter would win several more cases in front of the Supreme Court, each decision fortifying the new doctrines of association and anonymity. In Bates v. Little Rock, a unanimous high court overturned the conviction and fines of NAACP members who had refused to provide member names as required by newly crafted tax ordinances in Arkansas. The Court, even by then, was beginning to sound exasperated. “It is now beyond dispute that freedom of association for the purpose of advancing ideas and airing grievances is protected by the Due Process Clause of the 14th Amendment,” wrote Potter Stewart in the unanimous ruling. The state has “not demonstrated so cogent an interest in obtaining and making public the membership lists of these organizations as to justify the substantial abridgement of associational freedom which such disclosure would effect.”

  The NAACP provided inspiration to others, as more and different groups of Americans sought to force the Court to look more closely at the risks of other forms of disclosure. In 1958, Manuel D. Talley, a black man and cofounder of the Los Angeles chapter of the Council for Racial Equality, began distributing handbills that urged consumers to stop shopping at businesses that contained products from “manufacturers who will not offer equal employment opportunities to Negroes, Mexicans and Orientals.” Talley’s handbills contained the name of another group he’d founded, National Consumers Mobilization, and a post-office box address. Local officials arrested and fined Talley for violating a 1932 city ordinance that required any handbill in the city to include the “name and address of the person who printed, wrote, compiled or manufactured the same.”

  Cities and states had for some time been erecting such rules and bans on pamphlets, claiming it was a way of protecting citizens from fraud. That claim may have had some truth to it, but the politicians were also interested in keeping a grip on political information. The Supreme Court had already overturned ordinances that outright forbade the distribution of literature. Local jurisdictions had responded with new “disclosure” requirements. Talley’s high-profile arrest, on flimsy charges, convinced many in the civil rights community that these new “transparency” rules were designed to intimidate activists out of political speech.

  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 s
hould 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.

  Chapter 3

  Bare Knuckles

  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 foll
owing 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.”