The Intimidation Game

by Kimberley Strassel

  Brad Smith’s organization, the Center for Competitive Politics (CCP), which has operated in the state since 2008, sued Harris’s office, arguing that federal law protected those names. It ran through the roster of Supreme Court cases protecting anonymity—NAACP v. Alabama and the like. In December, the Americans for Prosperity Foundation filed its own suit, claiming that her demand violated its First Amendment rights and put its donors at risk of ugly retribution. The foundation noted that it had been registered in California since 2001 and had never been forced to give its donors before. Harris, “for reasons known only to her, is nonetheless trying to compel disclosure of the confidential Schedule B by nonprofits around the state,” read the filing.

  Harris’s office issued a laughable response, claiming the law had always meant what she said, and that Americans for Prosperity had in fact been “out of compliance with the law for a number of years.” The only reason no AG had ever done anything about the “backlog of delinquent charities” was that the department had been “chronically underfunded.” They were now receiving “delayed enforcement notifications.”

  If Harris gets her way, groups like CCP won’t just have to hand over their details about California donors; they will have to release the details of their donor network nationwide. And nobody thinks that information will ever stay secret. Leaks aside, California has sweeping sunshine laws. How long before Harris’s liberal buddies petition the government to hand over the donor details? How likely is it that Harris would do anything to stop that process?

  Rivkin believes the behind-the-scenes state coordination is vast, and worrisome. “It’s like a hydra; you can try to cut off one head, and just get more,” he says. And Harris is betting nobody will stop her. In addition to her AG powers, she has one other advantage: California. Even the federal judges in the state lean left, and the appeals court that oversees those judges, the Ninth Circuit, is infamous for its indulgence of liberal legal theories.

  Sure enough, the first judge overseeing the CCP’s case ruled for Harris, and in spring of 2015 a panel of Ninth Circuit appeals judges upheld that decision. The judges in both the CCP and Americans for Prosperity cases have at least allowed the groups to keep their donor names to themselves until the legal question is solved.

  In September 2015, fifty-eight organizations filed a friend-of-the-court brief to the U.S. Supreme Court, asking it to hear the CCP case. In November, the Supremes declined.

  * * *

  The lawsuit against O’Keefe is done, but O’Keefe isn’t done with his lawsuit. He’s continuing with his own litigation against the GAB, prying out documents, so that the public can see just how this travesty came to be. In October 2015, a new editorial in the Wall Street Journal revealed that Wisconsin investigators trawled through the files they’d taken from Wisconsin targets and put together a spreadsheet dossier that included the names and e-mail addresses of national conservatives—Jeb Bush, House Speaker Paul Ryan, RNC chairman Reince Priebus, former House Speaker Newt Gingrich, Wall Street Journal contributor Karl Rove. Documents also show that investigators used “search words” to attempt to turn up damning information—including “big union bosses” and “big government.” This is exactly what the IRS did to isolate and then smear conservative groups.

  One other revelation in the GAB litigation is noteworthy: The agency’s staff ran a lot of their John Doe communication through Gmail accounts. Which raises the question of whether O’Keefe will ever obtain all their correspondence. The prosecutors went directly to O’Keefe’s ISPs to sweep up all his e-mail. Yet they appear to have gone to great lengths to try to hide their own from the public. And unlike Wisconsin prosecutors, O’Keefe doesn’t have warrant power.

  On October 3, 2015—two years to the day after receiving his subpoena—O’Keefe and his wife held a party on a Wisconsin lake, hosting more than ninety people, many of whom had been subject to the prosecutorial abuse. “The idea,” he says, “was to redefine that day, October 3. To redefine the memory, away from being victims.” Guests spoke about their experiences and celebrated their victories. “It was a happy evening,” says O’Keefe.

  Litigation discovery aside, O’Keefe has learned a few bigger things over the past three years. He’s realized that the free-speech movement has a new job, to clean up fuzzy campaign finance laws. “If we are going to live with rules about speech, they have to be clear,” he says. “Because that’s how they went after us in Wisconsin. They used the looseness in the law to subjectively attack. That’s a dangerous situation for citizens.”

  He’s learned something about the left. “This is a party that used to embrace freedom. But they’ve now abandoned the principles of Thomas Jefferson and adopted the tactics of Joseph Stalin,” he says. And he notes that those tactics are aimed even at fellow Democrats who don’t fall in line. “I talk to Democrats at the state capitol. A lot of them, they didn’t like these raids, or the sweeping warrants. But they are afraid of their own side, of getting ostracized or attacked themselves. And so when the legislature moves to reform the Doe law, something that everybody understands is good for the cause of liberty, every one of them votes against it.”

  He’s also learned that the country is at a tipping point. “What the Founders understood is that you can’t have tyranny in a country if you have free speech,” he says. “So ask yourself: Why does the left want to get rid of free speech?”

  Chapter 21

  The President Has a List

  Frank VanderSloot woke up on April 21, 2012, from both a nightmare and a dream.

  The nightmare had started the day before. VanderSloot, then sixty-three, arrived at work at 7:30, just like he did every day of the week. The morning was as usual, right up until one of VanderSloot’s employees came in with some odd news. A blog post had just gone up, and it contained an ugly smear against the boss. This wasn’t in itself a surprise; VanderSloot had in recent months received some negative attention. The surprise was who had delivered the latest broadside. It had come from the most powerful man on the planet: Barack Obama.

  It was an election year, and Obama was already going in heavy against the presumptive Republican nominee, Mitt Romney. The president’s reelection campaign erected a website, called “Keeping GOP Honest,” and had been using it to “truth check” Republican statements. But on that April 20, it broke new territory. In a post entitled “Behind the curtain: a brief history of Romney’s donors,” the president’s team publicly named eight private citizens who had given money to the Republican, accusing them all of being “wealthy individuals with less-than-reputable records.”

  The site bluntly claimed that all eight men were “betting against America.” They were then each singled out, subjected to slurs and allegations. Investors Paul Schorr and Sam and Jeffrey Fox were attacked for having “outsourced” jobs. T. Martin Fiorentino was demeaned for his work for a firm that forecloses on homes. Louis Bacon (a hedge fund manager), Kent Burton (a “lobbyist”), and Thomas O’Malley (an energy CEO) were denigrated as oil profiteers. Most astonishing, the site outright accused “quite a few” of the men as having been “on the wrong side of the law” and succeeding at “the expense of so many Americans.”

  Nixon’s private “enemies list” was bad. Barack Obama’s public “enemies list” was arguably worse. Obama had used 2010 to alert and sic the IRS on Tea Party groups. But by calling out private citizens by name on his website, he was alerting and siccing every part of his government on Republican donors. The message from the man who controls the Justice Department (which can indict people), the SEC (which can fine people), and the IRS (which can audit people) was clear: Donate money to Romney, and you are fair government game. The posting was also an APB to every liberal group and activist in the country to target those donors.

  VanderSloot had for twenty-six years run a successful wellness-products company called Melaleuca out of Idaho Falls. He’d been involved in Idaho politics, but had only recently gained an interest in the national scene. He’d met Romney
in the mid-2000s, when the former governor spoke at an Idaho Republican convention, and VanderSloot liked him. So when the presidential aspirant later reached out to the Idaho businessman for help with his 2008 campaign in the Gem State, VanderSloot agreed and gave money to a Romney group. He signed up for the second run, too, and in August 2011 made a $1 million donation to a Romney super PAC. Such political organizations must disclose their donors. Obama’s team clearly lifted the eight men out of those public files.

  VanderSloot made the Obama list. And the entry against him was particularly vile. It accused the CEO of being “litigious, combative and a bitter foe of the gay rights movement.” The other donors were merely slammed as profiteers. VanderSloot was accused of being a profiteer, a bully, and a gay basher. Obama had only a few months earlier given a national address, in the wake of the shooting of Representative Gabby Giffords, on the need for more “civility” in politics.

  Melaleuca is a company that depends heavily on its good reputation. It sells nutrition and cleaning and personal care products that are marketed as having natural ingredients and being environmentally friendly. Hundreds of thousands of customers order direct from the company, and Melaleuca encourages those orders by paying commissions to home-based operators who refer the products. (Melaleuca is neither a pyramid scheme nor a multilevel marketer, contrary to liberal spin.) Those thousands upon thousands of operators and customers had just been told Melaleuca’s owner was an intolerant thug.

  “And we just got hit. Just blasted,” VanderSloot remembers. “The phones are ringing off the hook in the office, customers calling, so angry, canceling orders. And I was having to answer questions inside our own office, too, from my people saying, ‘Look what you’ve done.’”

  VanderSloot spent a feverish day trying to put out the fires. He was so overwhelmed by the blowback that by the end of the day he’d called his staff together and abjectly apologized for getting involved in the election. “I ate a whole humble pie,” he says. “I said, ‘I’m really sorry I’ve done this to us, to our company, to all of you—to bring this much pain to everybody and to cause all this ruckus, and I’m just…sorry.’”

  The dream came that night, after VanderSloot had ended that harrowing day. “At least I think it was a dream,” he says. “I just remember waking up, and very clear in my mind was the Declaration of Independence, and those guys who signed. I’d been feeling guilty for the pain to my family, but then I got to thinking.

  “Those guys didn’t sign on the spur of the moment. They went home, and they told their wives, ‘I’m gonna sign this thing, honey.’ And their wives said, ‘Don’t you dare! They’ll come after us; they’ll deem us traitors; they’ll kill us.’ And these guys heard their family out, and then they signed anyway.

  “Because this is America. That was my thought, laying in bed: This is America. And whatever might happen to me is nothing compared to those guys. So I’m not going to run and cower. I’m going to stand up for what I believe in.”

  It was a good thing VanderSloot woke up with that resolve. Because things were about to get a whole lot worse.

  * * *

  Frank VanderSloot was born in Billings, Montana, but grew up in the Idaho Panhandle. His dad worked hard as a railroad man and small-time rancher, though he never earned much. VanderSloot isn’t sorry about that upbringing or the values it instilled, and he has an abiding love for the idea of the little guy. His dad was a little guy, and so are thousands of his home-based operators. He still sees himself as one, despite his financial success.

  VanderSloot is not too tall. He has neatly clipped white hair, a round face, and an easy smile. He has a soft voice, which is often heard emitting old-fashioned phrases like “golly” and “darn it.” We’ve talked numerous times since he was targeted, and I’ve never once heard him brag, or raise his voice, or even use a bad word against someone. He’s a straight-arrow type.

  His employees love him. They like to talk about how he really believes in his company, and how he champions lots of “little guys.” The Idaho Statesman in 2011 told the story of Debra Lish, who at the time made about $150,000 a year marketing for Melaleuca, and who won a contest for a trip to Las Vegas. She was allowed to take a spouse, but as she wasn’t married, she asked to take a friend. A Melaleuca executive said no, so Lish chose not to go. She later told VanderSloot. “This will be changed as soon as we’re off the phone,” he told her. He paid for her, her two daughters, and her mother to go to Las Vegas. There are a lot of stories like this about VanderSloot.

  That being said, he’s hardly a pushover. The same Statesman story recounted how VanderSloot once took away his daughter’s car. He’d told her she needed a 3.0 in her first semester of college to keep it. She got a 2.98. “VanderSloot doesn’t round up,” reported the newspaper. He doesn’t round up in business, either, which is how he got a reputation for being “litigious.” Melaleuca’s entire business model rests on proprietary products and marketing, and the company is serious about enforcing nonsolicitation and separation agreements with its marketers and executives. It also goes after libelers, to protect its reputation. VanderSloot makes no apology for any of this, believing this zero-tolerance approach—through the courts, if necessary—is fundamental to protecting his workforce.

  VanderSloot became a Mormon when he was sixteen, and graduated from Brigham Young University. He paid for college in part by working and living in a laundromat. Post-degree he spent a decade at Automatic Data Processing and then a few more years at Cox Communications. In 1985, he left to help a brother-in-law start a business. It was a bust, and six months later VanderSloot built Melaleuca out of its ashes. Today, it has more than 1.2 million customers each month, and 200,000 “independent marketing executives.” VanderSloot calculates that over the years the company has paid out $4.2 billion to those home-based marketers. It sells 450 products across a network that spans 16 countries and pulls in $1.3 billion a year. It’s a big employer in Idaho Falls, with some 2,000 workers.

  VanderSloot is today, by self-description, a “young sixty-seven.” He loves the West, and he and his wife live on a working ranch outside of Idaho Falls that runs 5,000 head of cattle. He has six children and his wife has eight, and the number of grandchildren may soon outnumber the cattle. He still goes to work every day at his office in Idaho Falls, and still puts in eleven hours.

  * * *

  VanderSloot can’t peg exactly when he got interested in politics, but he remembers he was inspired to it by a desire to defend free enterprise. “It’s what made this country great—the ability to go and build businesses and create jobs. It’s what made America the most prosperous nation in history. That’s the paradigm I’ve always thought we have to protect if we want to keep America great,” he says.

  VanderSloot got active early on with the U.S. Chamber of Commerce, and by 2004 was on its executive board. Chamber CEO Tom Donohue tried recruiting him as chairman of the group. The Idahoan declined, telling Donohue he needed to remain committed to his business and employees.

  He remembers meeting Romney around 2006, which is also about the time he got active in Idaho politics. VanderSloot over the years has backed conservative candidates in state judicial elections, backed state ballot initiatives for school reform, and supported Republicans for Idaho’s attorney general and governor’s slots. But what ended up getting him slammed on Obama’s list was his even earlier involvement in the state’s fight over traditional marriage.

  VanderSloot’s position on that issue was neither outrageous nor even uncommon. This was the 1990s, when the vast majority of America was still opposed to gay marriage, and far less comfortable with gay issues than it is today. In 1999, VanderSloot discovered that PBS was intending to air a program called It’s Elementary about how schools dealt with homosexuality in the classroom, and that suggested addressing the issue with even first and second graders. PBS intended to air the program in Idaho at peak kid watching hours. VanderSloot objected, and he was hardly alone. The documentary prov
oked a debate across the country, and dozens of public TV stations refused to air it. VanderSloot in particular opposed using public tax dollars to air a show at prime kid time that promoted concepts many parents might disagree with. He helped fund billboards asking, “Should public television promote the homosexual lifestyle to your children? Think about it.” His main goal was to get PBS to broadcast the show at a later, adult viewing time. Which is exactly what ended up happening. It aired in Idaho, just at a different time.

  A year later, he donated money to a PAC that opposed the reelection of a liberal state supreme court justice, and that warned that the justice might use her power to impose gay marriage on the state. And in 2006 he ran full-page newspaper ads asking critical questions about a newspaper series by local journalist Peter Zuckerman. The series focused on several pedophiles who had been exposed in local Boy Scout troops. The articles implicated the Mormon church and Scout leaders, serious charges that VanderSloot felt lacked evidence. The ads questioned some of the facts, but also responded to some of the community’s speculation that Zuckerman’s sexual orientation (he is gay) may have prompted him to attack the Scouts and the Latter-day Saints. The ad defended him against the charge, saying it would be “very unfair” to “conclude that is what is behind Zuckerman’s motive.”

  Zuckerman and the left would later claim that VanderSloot had “outed” the reporter. This is untrue. Zuckerman had previously written openly about being gay. And the ad’s mention of speculation was in reference to a radio show that had spent at least twelve hours of airtime accusing Zuckerman of bias because of his sexual orientation. The advertisement, if anything, was defending him against that allegation. Zuckerman would later under oath admit that many of the accusations he had in turn leveled against VanderSloot (including the charge that the ads had caused his boyfriend to be fired) weren’t true.