The Intimidation Game

by Kimberley Strassel

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.

  Thirty years after the Tillman Act, a different Roosevelt was sitting in the White House, and congressional Republicans suspected him of using his ever-growing New Deal program to construct a permanent power base for the Democratic Party. Those suspicions turned to outrage in 1938, following accusations that employees at the Works Progress Administration had influenced congressional elections. Republicans, working with conservative Democrats, in 1939 used the scandal as an excuse to pass the Hatch Act, which limited the political activity of federal employees. In 1940, Republicans expanded the law, putting a dollar limit on federal employee contributions to candidates and extending other political restrictions to certain employees of state agencies that received federal funds.

  Three years later, Roosevelt’s allies gave Republicans an excuse to shut down the speech of an even bigger prize. FDR had done more to grow the union movement than any other president, and Big Labor returned the favor by throwing vast sums of money at Democratic candidates. But in 1943 the United Mine Workers made the monumental error of going on strike over wages—in the middle of a global war. Republicans played off the resulting public anger and fear to whip through the Smith-Connally Act. In theory, the law was about giving the federal government power to seize and operate wartime industries threatened by strike. But Republicans made sure to throw in a provision prohibiting labor unions from federal campaign contributions for the duration of the war. In 1947 they made that ban permanent, and upped the ante. Up to then, Congress had concentrated its fire on restricting direct contributions to candidates. The 1947 Taft-Hartley Act banned both unions and corporations from spending money on pretty much any federal political activity. No giving dollars to candidates, but also no spending money independently to endorse or disapprove of politicians. In the space of forty short years, Democrats and Republicans had teamed up to make themselves immune from criticism from two of the biggest political constituencies in the country—businesses and workers (both private and public).

  Next up were private citizens, and the moment this time was provided by Richard Nixon. Despite the Tillman Act, the Hatch Act, the Smith-Connally Act, and the Taft-Hartley Act, campaign spending just kept going up. Congress wanted a better handle on where all the money was coming from, and in 1971 it passed the Federal Election Campaign Act (FECA), instituting the nation’s first formalized disclosure laws. And what that disclosure found was that a lot of individual Americans, including wealthy ones, were giving a lot of money to campaigns. Including to Richard Nixon.

  Watergate has come to stand in many Americans’ minds as the ultimate reason why the country needs campaign finance laws. Yet Nixon’s campaign-finance infractions were almost incidental to his broader crimes. Nixon’s real offense was his abuse of power—his decision to use all the levers of the federal government to “screw” his political enemies. His administration ultimately stood accused of bugging the offices of political opponents, of using the CIA, the FBI, and the IRS to harass his adversaries, of hiring thugs to break into the Democratic National Committee headquarters, and of digging up dirt on adversaries.

  The wrongdoing flowed from the skewed morals of a corrupt chief executive, and Nixon’s resignation—and the subsequent incarceration of forty-eight of his officials—might have ended the story. Yet Congress felt it must do more to reassure the public and get credit for action. And because some of Nixon’s activities had been funded via an outside campaign organization, and because some of that money had been donated illegally and secretly, Congress settled on passing yet another campaign finance law.

  Washington in 1974 amended the 1971 FECA law to include sweeping new disclosure laws, restrictions on how much money private individuals and independent outfits might contribute to campaigns, and restrictions on how much politicians and parties could spend in elections. It also set up a new body to referee all these disputes—the Federal Election Commission. Campaign finance expert (and onetime FEC commissioner) Brad Smith, in his book Unfree Speech, calls FECA “one of the most radical laws ever passed in the United States; for the first time in history, Congress had passed a law requiring citizens to register with the government in order to criticize its office holders.”

  The Supreme Court wasn’t impressed. FECA required the high court to meditate for the first time on the question of money and speech. Unfortunately, the Court fell for the same political sell-job as most of the nation. In its 1976 Buckley v. Valeo decision—one of the nation’s most far-reaching cases—it did strike down a few important chunks of FECA, including limits on spending. But it would at the same time give its blessing to one of the more radical parts of the law—forced disclosure.

  In doing so, the Supreme Court undermined the impressive body of law it had been building protecting political anonymity. The Court of course referenced its recent prior decisions—NAACP v. Alabama, Bates v. Little Rock. It had to—those decisions were less than twenty years old. Yet it cleverly wrote around them, pretending it wasn’t undoing anything. The government, the Court found, had a compelling “interest” in disclosure, on the grounds that it prevented corruption and that this was necessary for the “free functioning of our national institutions.” Yes, yes, said the Court, “compelled disclosure” can seriously infringe “on privacy of association and belief guaranteed by the First Amendment.” And yes, yes, it conceded that there could well be a situation in the future in which that threat is so “serious” that the new disclosure rules “cannot be constitutionally applied.” When might that moment come? Like pornography, the Court would know it when it saw it. Supposed victims need only come back to the judiciary, which would decide the issue on the merits, on a case-by-case basis.

  Even critics of disclosure will point out that the Burger Court sanctioned only “limited” disclosure in Buckley v. Valeo. But it was a sanctioning nonetheless, and it licensed the political class to think of yet new ways to track and make public the political activity of private citizens. It was a big moment.

  Chapter 4

  Fascist Monstrosity

  Buckley was huge. It was overshadowed only by the most modern moment—the one that would create the rules that Bauer would help mold into a new culture of intimidation.

  The author of that moment was the son and grandson of four-star admirals. He followed his kin into the U.S. Navy, and in 1967, while on a bombing mission over Hanoi, was shot down and captured by the North Vietnamese. He spent more than five years as a prisoner of war, subjected to brutal torture, yet refused Hanoi’s offer to return him home early. He wouldn’t step back on U.S. soil until 1973.

  John McCain came back to the United States a war hero, a reputation that meant everything to him. When he finally retired from the Navy in 1981, he chose a run for Congress. He spent four years as an Arizona representative in the House, then jumped to the U.S. Senate. And that’s when the trouble began.

  McCain, starting in his time in the House, had benefited from campaign contributions from a man named Charles Keating Jr., the head of Lincoln Savings and Loan Association. A few months after McCain took his Senate seat, K
eating contacted him and four other senators to ask for help in preventing the federal government from seizing his company, which was teetering at the edge of bankruptcy in the savings and loan crisis. McCain met twice with federal regulators to discuss the situation.

  The episode blew up into the “Keating Five” scandal, with the accusation that the senators had been bought and had corruptly intervened in federal business on Keating’s behalf. The Senate Ethics Committee held embarrassing public hearings and ultimately found that three of the senators had acted improperly. McCain and Senator John Glenn were cleared of wrongdoing but criticized for exercising “poor judgment.”

  McCain had not been in the Senate for long when the scandal erupted, and it scarred him. The war hero had never been anything but that—a hero—in the public’s eye, and here he was enmeshed in what he’d later describe as one long “public humiliation.” He’d write that those two meetings were “the worst mistake” of his life.

  McCain chose to atone by devoting his Senate career to erecting new finance rules that would make it harder for people to engage in politics. He resented that Keating’s donations had put him in a questionable position. It never seemed to occur to the Arizona senator that his problem wasn’t the money, but his own actions. Later chronicles of the Keating episode would reveal that McCain had been nervous and troubled all along about attending the meetings or intervening on Keating’s behalf. He knew that what he was doing was a problem. He did it anyway. It was, as he admitted, his mistake.

  But that didn’t stop him from blaming money. Within a few years of his humiliation, McCain had teamed up with Wisconsin Democrat Russ Feingold to introduce in the Senate in 1995 the most sweeping change in political money laws since Nixon and the FECA. McCain had the backing of most Democrats. He’d made the centerpiece of his bill regulations to bar the business community from any meaningful interaction in elections whatsoever. Democrats knew that business mostly supported Republicans, so they adored his approach.