The left is waging a systematic assault on the First Amendment rights of anyone who doesn't toe their party line. In her 416-page monument to investigative journalism, “The Intimidation Game: How the left is silencing free speech,” Kimberly Strassel of the Wall Street Journal dissects in enlightening (and at times, excruciating) detail how this epic drama has played out during the Obama era, especially since the most recent strategic inflection point of January 21, 2010, the case of Citizens United vs. Federal Elections Commission.
Read the complete article by Howard Hyde at NationalReview.com.
The National Review piece is ~1,500 words long. For the courageous reader who requires a more in-depth exploration of Strassel's 400-page, 120,000-word book, I offer a ~6,000-word version below.
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Copyright(c) 2016 by Howard Hyde
An old Cold War joke went that Russians under the Soviet Union had just as much freedom of speech as Americans, because any of either could yell “Reagan is an idiot!” in front of his country’s state house without consequences. A variant said that Cubans under Castro had equal free speech rights as Americans under Bush, with the only minor difference being that Americans could also be free after the speech.
Freedom of speech has been the exception in human civil society for as long as there has been government. Our own doctrine, which may have been born less of magnanimous enlightenment than of the stalemate of thirteen competing and at times mutually hostile colony/states attempting to impose their orthodoxies upon all of the others, was nearly snuffed out in its infancy with the Alien and Sedition Acts of the 1790s. Public expression of ideas that are offensive to the powerful, or to the mob, has been a perilous exercise, under assault even in America throughout our history, punctuated by various Supreme Court rulings, and student campaigns such as the Free Speech Movement of this writer’s hometown of Berkeley, California in the 1960s.
Americans should now be familiar with restrictions on speech on university campuses and their buzzwords: “safe spaces”, “trigger warnings”, “micro aggressions”, “dog whistles” and the like. But not all speech codes are so obvious. There is another class of restriction on freedom of speech, more treacherous for cloaking its meaning in entirely different terms. It is called campaign finance law.
In her 416-page monument to investigative journalism, “The Intimidation Game: How the left is silencing free speech,” Kimberly Strassel of the Wall Street Journal dissects in enlightening (and at times, excruciating) detail how this epic drama has played out during the Obama era, especially since the most recent strategic inflection point of January 21, 2010, the case of Citizens United vs. Federal Elections Commission.
While that case was a blow in favor of freedom of speech, specifically the freedom of corporations to engage in the public square on an equal footing with labor unions, the blow-BACK in the aftermath of the ruling would usher in one of the murkiest eras of government-sanctioned and/or initiated persecution in clear contradiction to the letter and spirit of the First Amendment that we have known for at least a few generations. To the degree the decision didn’t go far enough in clearing the path for unfettered speech, the decision may have aided and abetted the persecution.
Strassel launches her narrative with the revelatory stories of several Tea Party and other conservative groups that had applied for tax-exempt status under the IRS 501(c)(4) classification whose applications sat in limbo for months or even years, while ever-more detailed, intrusive and privacy-invading interrogatories were required of them. Karen Kenney and her San Fernando Valley (California) Patriots are Strassel’s primary case study. Here is a sampling of the questions that the IRS demanded of her, several months into her application process:
“Provide a printout of each of your website’s pages, including any pages with restricted access.”
“Provide details regarding all of your activity on Facebook and Twitter. Also provide hard copies of all advertising you have conducted using social media outlets.”
“Indicate if any of your current and former officers, directors, and key employees are related to each other (including family and business relationships) and describe the nature of the relationship.”
“Provide minutes of all board meetings since your creation.”
“Provide a list of all issues that are important to your organization. Indicate your position regarding each issue.”
“Have you conducted any protests? If yes, please answer the following regarding your protest activities: What percentage of your time and funds are spent protesting? How’s your organization ever conducted or promoted any illegal activity? If yes, explain. Have any of your members been arrested by the police during a demonstration? If yes, explain.”
All of these questions are completely out of line, and the IRS and its leftist allies tacitly acknowledge so by their action of NOT requesting the same of leftist or “progressive” organizations seeking tax-exempt status. Strassel: “The IRS... is a tax agency. Its job isn’t to question the motives of an organization, but to examine its later spending – after it files its first tax reports – and make sure that followed the tax rules. That’s why, between the years of 2001 and 2011, the IRS issued tax-exempt letters to more than fourteen thousand social welfare organizations. It turned down only fifty-six.”
But the IRS wasn’t done. As if these demands didn’t create sufficient hardship and/or weren’t intimidating enough for the applicant (keep in mind that we are talking about a volunteer organization with annual revenue less than $4,000 – compare with the progressive League of Women Voters, which spent $9.6 million in the 2012 election cycle), the judge-jury-and-executioner agency demanded the following: “UNDER PENALTY OF PERJURY [my emphasis], I declare that I have examined this information, including accompanying documents, and, to the best of my knowledge and belief, the information contains all the relevant facts relating to the request for the information, and such facts are true, correct and complete.”
While the IRS took its time processing Kenney’s and others’ applications and answering their questions, they brooked no delays on the part of the applicants. Kenney received a letter from the IRS requiring a response within three weeks, a response that required dozens of hours to compile.
Then, the showstopper: “The IRS was demanding that she provide it with the names and Social Security numbers of every person who had ever donated their money or time to SFVP” (again, the 501(c)(4) designation that Kenny was seeking for her group is specifically exempt from having to disclose the identity of its donors).
As a result of the IRS’s stalling and intimidation tactics, many groups gave up or withered on the vine, unable to attract donations. Kenney ultimately pulled her application but continued her group’s modest activities.
Two hundred thirty years ago, the Framers, understanding the danger and futility of prohibiting criticism of political leaders, or of outlawing one man’s sacred religious practice as another’s blasphemy in a nation composed of thirteen states, each with its own dominant sect, were wise enough to recognize a transcendent principle which could be simply and plainly woven into the Constitution’s Bill of Rights and the social fabric of the nation: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
In contrast, as Strassel catalogues, modern Democrats and Republicans have been engaged in a cynical frog-vs-snake game of attempting to rig the system to the disadvantage of the other, requiring ever-more reams of regulations, ever-larger armies of enforcement bureaucrats, lawyers and judges, and ever-more creative cruel and unusual punishments to meet out for infractions upon the least of the rules, depending on who holds the momentary political upper hand.
Democrats have an advantage with unions, so they jockey to give coercive power and free spending rein to the same. Republicans have a nominal advantage among the business community, so they try to get the laws written to the advantage of commercial companies. And so, Benjamin Tillman, a white supremacist Democrat Senator, persuaded President Teddy Roosevelt to sign the Tillman Act in 1907, in order to shut up the corporations that opposed Jim Crow laws in the South; Republicans pushed the Hatch Act in 1939 to rein in political activity on the part of federal employees; Republicans again passed the Smith-Connally Act in 1943 (during WWII) to shut up labor unions; the Taft-Hartley Act of 1947 prohibited corporations and unions from participating in elections at the federal level; and in 1971 the Federal Election Campaign Act (“FECA” – ouch!) required political participants to disclose their donors, and, as amended in 1974, restricted the amounts the people and organizations were permitted to spend in elections. As Law professor Brad Smith, author of “Unfree Speech” put it, “Congress had passed a law requiring citizens to register with the government in order to criticize its officeholders.” Parts of FECA, in particular spending limits, were struck down by the Supreme Court in Buckley v. Valeo (1976), but the disclosure rules remained intact.
There has been only acceleration of the gamesmanship in the past 20 years, especially since passage of the Bipartisan Campaign Reform Act of 2002, a.k.a. McCain-Feingold.
We can thank McCain-Feingold for, among other things, those useless and annoying declarations in political ads that go “I’m Fred Flintstone and I approve this message” (God help the republic if we didn’t have that!). McCain may sincerely believe that his eponymous legislation is the best thing for tempering the undue influence of “big” and/or “dark” money in politics. But as Strassel points out, it might not have happened had it not been for McCain’s own personal lapse of judgment in what became known as the (Charles) “Keating 5” scandal involving Lincoln Savings and Loan, in which the Senator from Arizona was called out for the appearance of improperly intervening on behalf of a major campaign donor. With the public upset about this and several other corporate financial scandals of the 1990s – Tyco, Enron, Global Crossing – McCain was vulnerable to pressure to salvage his honor by giving a bipartisan veneer to an otherwise naked power move by the Democrats.
The Bipartisan Campaign Reform Act may have been McCain’s penance, but it didn’t earn him much credit with Democrats or Republicans. In fact, it would ultimately help Obama to out-fundraise McCain by a wide margin in the 2008 presidential campaign.
McCain-Feingold almost backfired on the Democrats who pushed it, as it is in fact the Democratic party and its candidates who depend upon large contributions from wealthy donors (which the act outlawed) to a greater extent than Republicans. Joseph Sandler, a lawyer for the Democratic National Committee called the act a “fascist monstrosity” and a “disaster for Democrats”. But they quickly found the blind spot in the law (there is always at least one, accidentally or by design), hiding in plain sight: independent organizations defined by the IRS as “527s” are allowed to raise and spend unlimited quantities as long as they disclose the source of their funds and don’t coordinate with candidate’s campaigns. Who needs official political party organizations when you’ve got these? So the Democrats happily sallied forth, with George Soros alone underwriting the liberal Media Fund, Americans Coming Together (ACT), and Moveon.org to the tune of $23 million. But then the Republicans discovered that they too could use 527s, which they did to devastating effect in the 2004 election, in particular via the group Swift Boat Veterans for Truth (SBVT), which called out Democrat presidential candidate John Kerry’s Vietnam War record. Then, of course, the Democrats cried foul and called for investigations, prosecutions and more regulation, asking the courts and the press to turn a blind eye to how their own 527s were operating.
Not all attempts at suppression of political rival’s fundraising and/or speech crossed party lines; some of the most vicious fights have been intra-mural. During the 2008 presidential primary season, Bob Bauer, chief attorney for the Obama campaign, held a press conference in which he threatened legal action, civil and criminal, via the Department of Justice and the Federal Elections Commission, against the entity, officers and even donors of the American Leadership Project, a pro-Hillary Clinton 527. It was a shocking bluff, but it accomplished the desired effect of deterring substantial numbers of potential donors to ALP.
Once the primary was passed, they turned the technique against Republicans. Tom Matzzie, a prolific fundraiser variously associated with the AFL-CIO, the 2004 Kerry-Edwards campaign, Moveon.org, and Americans Against Escalation in Iraq, in 2008 founded a group called Accountable America, whose mission was essentially to do to Republicans what the Obama campaign and Bauer had done to Hillary and ALP, upping the ante with increased public harassment and humiliation of their targets. One of their primary targets was the 501(c)(4) American Issues Project, which among other things had exposed Obama’s ties to the 1970s Weather Underground terrorist Billy Ayers. ALP and its donors, notably Harold Simmons, also of Swift Boat Veterans for Truth, stood their ground and didn’t pull their ads. But they did come to the attention of IRS official Lois Lerner, head of the IRS Exempt Organizations unit and chief of the Tea Party targeting.
The next, and most significant recent milestone, has been Citizens United. The main effect of the 2010 Supreme Court decision was to take a bite out of McCain-Feingold and put corporations back on an even footing with labor unions. And that is when Democratic bureaucrats, fettered de jure, upped the ante by nakedly using, and abusing, the de facto power that they wielded in the agencies of federal and state governments. This took various forms, including the targeting of Tea Party groups for delay and invasive scrutiny of their applications for tax-exempt status by the IRS, harassment by rogue Federal Elections Commission staff and by the SEC, and the painting of private citizens as political enemies of the regime personally and publicly by the Democratic Senate Majority Leader Harry Reid and even President Obama. In a few extreme cases, innocent people had their homes raided and families with children terrorized in the pre-dawn hours by armed agents of the state (in particular, of Michigan).
So while the IRS was harassing and stalling Tea Party groups, leftist 501(c)(4)s and 527s were putting unrelenting pressure on every government agency they could find, from the Federal Communications Commission to the Securities and Exchange Commission, to crack down on and/or compel disclosure of donor lists and anything else that they could use against conservative 501(c)(4)s and 527s. The leftist organizations got friendly treatment from the fellow-traveling staff and leaders of these agencies. Rogue staff at the Federal Elections Commission (FEC) pursued investigations of the Rick Santorum for President campaign and other Republican and conservative targets, without the prior knowledge or consent of the commission’s six bi-partisan commissioners. Almost before the ink was dry on Citizens United, Democrats in Congress attempted to pass the Democracy Is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act. Republicans called it the Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections Act and defeated it, with as assist from the NRA. Undeterred, Obama maneuvered to implement portions of DISCLOSE by executive fiat.
In January 2012, president Obama, commander of the IRS, the SEC and the Justice Department, kicked off his re-election campaign by calling out private citizens, the Koch Brothers, personally. From March to September 2013, Harry Reid called out the Kochs by name from the Senate floor twenty-two times (imagine if George W. Bush and/or Mitch McConnell had done something like this).
Liberal groups posing as shareholder advocates bullied or embarrassed corporations out of politics or into “politically correct” public positions by buying minimal stock ownership positions and launching proxy fights and/or “rating” companies on the “Zicklin Index” of “good political disclosure” and “accountability”. But caving to these pressures provided no relief from further pressure. Strassel: “By virtue of the fact a company gave in, the left also knows that it is susceptible to pressure. So disclosure is an invitation for them to come back again and again.” Companies that scored high on the Zicklin Index in 2013 were over 50 percent more likely to be the targets of proxies than the companies with scores at the bottom of the index. “These companies aren’t rewarded for their best practices; they are teed up for further abuse. Conversely, there is zero proof that voluntarily adopting a disclosure provision helps a company in any material way.”
In April 2013 a few business leaders, notably Chamber of Commerce CEO Tom Donohue, Business Roundtable President John Engler and National Association of Manufacturers president and CEO Jay Timmons decided to call out the do-gooders. Strassel: “They also laid out [and then demolished] the four ‘key myths’ of this movement: 1) disclosure of corporate political activity has broad support among investors; 2) a lack of disclosure regarding government relations activities (as the activists define it) is risky for investors; 3) most companies are satisfying activists’ demands for disclosure; and 4) disclosure is the activists only goal.”
“In October 2014 ... Carly Fiorina, the former head of Hewlett-Packard, penned a piece in the Washington Post calling on businesses to ‘grow a pair’ [my quotes] ... ‘Caving on an issue only invites more attacks.’”
Leftist activists scared off forty percent of the members of a bi-partisan pro-free market think tank focused on state legislatures, the American Legislative Exchange Council or ALEC, by accusing it of supporting Florida’s “Stand your Ground” laws – which they recast as “Shoot first” or “Kill at Will” – that allegedly got Trayvon Martin killed by George Zimmerman. Strassel doesn’t mention it, but John Lott, author of “The War on Guns” points out that “Stand Your Ground was actually irrelevant to the Dunn and Zimmerman cases. After all, forensic and eyewitness evidence indicates that Zimmerman was on his back and being held down by Trayvon Martin. Zimmerman had no option to retreat [therefore the law didn’t apply].” Lott also cites the facts that “No Stand Your Ground law has ever been repealed [because they are popular] ... Since 2005, eighteen black Florida men have defended themselves against attackers and then successfully used Stand Your Ground it to defend themselves in court.” Are those eighteen black men less deserving of justice than Martin?
The U.S. Chamber of Commerce and its member companies likewise came under assault for the supposed threat that its $35 million of expenditures in the 2012 election cycle posed to democracy (in comparison to the $1.7 billion spent by unions).
And then there is Climate apostasy. Strassel: “Bernie Sanders ... declared in a 2015 debate that global warming was the biggest national security threat of the country faced – bigger than ISIS, terrorists, or a nuclear Iran…In 2009, liberal Democrats squeaked the Waxman-Markey cap-and-trade bill through the House.” The bill failed to get a vote in the Senate, so Obama imposed it by executive fiat through the EPA. “Arizona representative Raúl Grijalva, the ranking democrat on the House Committee on Natural Resources ... sent letters to universities asking about seven climate scientists, all chosen solely for the fact that they had at one time or another objected to climate change hysteria...The letters demanded that the university’s cough up any details about the seven scientists’ funding…A trio of three Democratic senators – California’s Barbara boxer, Massachusetts’s Ed Markey, and Rhode Island’s Sheldon Whitehouse – backstopped the Grijalva effort with their own letter campaign. The senators sent a missive to 107 different companies, think tanks, independent organizations, and trade associations, demanding information about anybody in the climate arena to whom they had given funding.”
Fortunately, many of the recipients were endowed with sufficient spinal material to tell the Senatorial inquisition trio to go pound sand, including Lisa Nelson of ALEC, the American Meteorological Society, the American Geophysical Union, John Allison of the Cato Institute, Joseph Bast of the Heartland Institute, and the Senate Environment and Public Works Committee’s eleven Republicans. But the fact remains that in today’s academic world, as Strassel says, “Any scholar who challenges the liberal ideology has come in for a professional takedown.” Ask Dr. James Enstrom, a UCLA epidemiologist who was fired after his research into the public health effects of diesel pollution failed to produce the politically correct conclusions (he was reinstated after a legal battle and given a “Hero of Conscience” award from the American Freedom Alliance, on whose board this writer serves).
Possibly the most astonishing story in the entire book relates the lengths to which anti-Scott Walker attorneys in Wisconsin were willing and able to go in their pursuit of their political enemies and their supporters. As Strassel relates, R.J. Johnson, a conservative political consultant, “had been in Atlanta with his wife, fundraising for a charity. His 16-year-old son was alone in their rural Dodge County home. In the dark morning hours of that Thursday, a Milwaukee County investigator ushered a troop of armed officers into the house. Johnson’s son was not allowed to call his parents. He was not allowed to call his grandparents, who live only a half mile away. The boy had the wits to ask to call a lawyer. He was told no. As Johnson would later sum up in the Wall Street Journal, ‘He was a minor and he was isolated by law enforcement.’ Armed deputies stood by him while investigators tossed the house, hauling off documents and technology. Johnson’s son was told that the gag order applied to him. If he told anybody what had happened, he could go to jail. When he finally arrived at school, two hours late, he couldn’t tell anybody why he was so upset.”
This was not the only pre-dawn raid traumatizing children for purpose of harassing the subjects of an investigation into a case of alleged violations of highly technical speech rules (note: NOT murder, armed robbery or racketeering). The charges were eventually found to be baseless, and the law permitting this abuse, Michigan’s “John Doe” law, was amended to put more constraints on prosecutors and law enforcement. Scott Walker himself signed the reform bill.
Strassel: “The John Doe got shut down, but not before the left accomplished many of its goals. It harassed and put in suspended animation most of Wisconsin’s conservative movement during a crucial election period. It disclosed donors and pertinent information that could be used to attack and silence the right. It required its victims to spend, collectively, millions of dollars on legal defense – money diverted from advocacy. It subjected individuals to the terror of personal prosecution, wreaking havoc on their livelihoods, their families, their ability to sleep at night. It made them think twice about taking part in the electoral system.”
Strassel argues that all of this abuse and wasteful expenditure of law enforcement and the regulatory and court system resources wouldn’t be happening in the first place if the American citizenry in general, and Republicans in particular, understood two concepts that should be joined at the hip with the First Amendment: 1) that the right to spend money for the purpose of disseminating ideas is one and the same with free speech, and 2) the right to Anonymity (as opposed to forced Disclosure) is equally essential to liberty.
On that first point, “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.” A fundamental flaw of popular wisdom across the political spectrum is the failure to recognize that freedom of speech and freedom to spend money to build and operate the presses, deliver the papers and/or produce the social media ads go hand in hand; one is moot without the other.
Disclosure versus Anonymity might seem more difficult to grasp or less of a slam-dunk, except that we have adequate precedent to inform us.
Sunshine may be the best disinfectant of government corruption (thank you Supreme Court Justice Louis Brandeis), but cover of darkness is the best safeguard against tyranny of government against private citizens. As Strassel points out, America has a long and honorable history of anonymous participation in civic debate, with one of the most illustrative examples being Alexander Hamilton, John Jay and James Madison writing under the nom de plume “Publius” in dozens of published essays in favor of ratification of the draft Constitution during the 1780s, which essays would eventually be compiled as the Federalist Papers. The primary purpose of that anonymity was less protection against personal reprisals than to compel readers to address the arguments on the merits, without reference to any personal prejudices they may have had regarding the authors.
But in many, if not most cases, anonymity really is protection against persecution, even unto death. The Supreme Court recognized as much in 1958 when it overturned the Alabama court’s demands that the NAACP turn over all of its private documents including financial records and lists of members and donors. The court recognized that Alabama’s demands upon the civil rights organization entailed “the likelihood of a substantial restraint upon the exercise by petitioner’s members of their right to freedom of association. Petitioner has made an uncontroverted showing that on past occasions 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” and thus was a violation of citizens’ First Amendment in addition to Fourteenth Amendment rights. Other cases reinforced this defense of anonymity as essential to liberty; for example, Bates v. Little Rock and McIntyre v. Ohio Elections Commission.
In contrast, recently passed laws and regulations which limit the anonymity of donors, petition signers and other participants in the civic process and marketplace of ideas, Strassel argues, are in direct contradiction to the letter and spirit of NAACP v. Alabama. Now the tactics that were attempted against the black civil rights movement are in full reprise against conservatives in general and tea party groups in particular. In many ways, the tactics are more effective today, when so much personal information on all of us available at the click of a mouse or the swipe of a smart screen phone. Leftist operatives in government have turned the alleged virtue of disclosure on its head, insisting that it is private citizens who are obliged to expose and declare their private thoughts, associations and actions to scrutiny and approval or sanction by government officials, instead of the other way around. Republicans have been fooled into going along with Democrats’ siren songs of “transparency” that would be used not as a check on government but as a weapon of Democratic government bureaucrats against their political enemies, especially private citizens.
In May 2008, the California Supreme Court legalized same-sex marriage. On November 4, 2008 Proposition 8, outlawing same-sex marriage passed, 52 percent to 48. Following that reversal, anyone who had the remotest connection to Prop 8 – as little as a donation of $100 – became the target of harassment by leftist LGBT political activists. Demonstrators picketed and disrupted businesses physically and on social media at restaurants and grocery stores owned by pro Prop 8 donors. Even the Sundance film festival, pride of the “Sundance Kid” Hollywood star actor/director Robert Redford (not exactly anyone’s idea of a right-wing extremist), came under fire for the sin of being based in Utah, source of substantial pro Prop 8 money. Individuals identified with Prop 8 received hate mail, death threats and had their property vandalized – smashed windows, keyed cars, deflated tires.
All of which prompted country lawyer James Bopp, Jr. to sue to protect the identity of donors and petitioners. One of these cases (Doe v. Reed) made it to the Supreme Court, but both lost: Doe v. Reed on the grounds that petition disclosure did not violate the First Amendment (only Clarence Thomas dissented). The second case was nixed by San Francisco’s notoriously leftist Ninth Circuit (or is it Circus?) Court of Appeals on the grounds that it was too late to do anything about identifying information that was already in the public square.
And therein lies the Catch-22. Strassel: “So what protection is there, ever, for a citizen, against threats and reprisals? Go to the courts prior to it happening and be told that you have no proof it will happen. Go to the courts after and be told it’s too late, it already happened.”
The only Supreme Court Justice left that seems to remember NAACP v. Alabama, and to apply its principles consistently, is Clarence Thomas. “Disclaimer and disclosure requirements enable private citizens and elected officials to implement political strategies specifically calculated to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights...I cannot endorse a view of the First Amendment that subjects citizens of this nation to death threats, ruined careers, damaged or defaced property, or preemptive and threatening warning letters as the price for engaging in ‘core political speech, the primary object of the First Amendment protection,’” he wrote in criticism of McCain-Feingold.
So where are we today? The IRS’s illegitimate targeting of Tea Party groups was exposed in May, 2013. The Democrats’ (feigned) outrage over this scandal lasted one whole month. Lois Lerner, the ringleader, got away with testifying before Congress and then invoking the Fifth Amendment to avoid cross-examination. The story is incomplete because her email server, and all backup copies, conveniently crashed (retroactively?) in 2011. Strassel: “The Justice Department investigation never went far...Lerner was never fired, prosecuted, or even reprimanded.” She retired with full benefits.
Some of the worst excesses by over-zealous leftist activists and bureaucrats have been held back thanks to the heroic stands of many of the high- and low-profile targets. But as Strassel states, it’s time to rethink: Rethink Disclosure. Rethink the oversight of speech. Rethink campaign finance laws. Rethink corporate speech. Rethink the Federal Records Act and the Freedom of Information Act, so that government agents can’t stonewall citizens’ requests. And it is time for Americans to wake up and speak up.
The essays that became the Federalist Papers were originally published anonymously, so that readers would have to evaluate the arguments on the merits rather than based on their prejudices (favorable or unfavorable) toward the writers. So imagine if the First Amendment were the last word, and there were no restrictions on campaign finance and no disclosure requirements. Imagine a “clean democracy” worst nightmare, in which the Chinese, Russians, Saudis, Iranians, North Koreans or ISIS could sponsor and produce issue ads in American elections. Would the American people truly be helpless to evaluate whether or not they agreed with the ad’s message? If elections could be so easily bought for money as the progressives claim, then surely Jeb! Bush would have been the 2016 Republican nominee.
The corruptive power of money in politics is exaggerated. As Strassel points out, we spend twice as much on Halloween every two years as we do on national elections, an amount less than what the federal government spends in a single day. Ninety-six percent of campaign spending sources are disclosed. On the other hand, the moral hazard of laws, regulations and bureaucracies created to micromanage every activity of public and private life – untethered from fundamental prevention and/or punishment of murder, assault, robbery, theft, fraud, rape, persecution or conspiracy – has been underestimated for far too long. The truth is that Citizens United didn’t go far enough. It is time to energetically sweep away the encroachments upon fundamental liberties.
How likely is that? On September 11, 2014, the Senate Democratic Caucus floated the following trial balloon, known as SJR 19: “Constitutional Amendment - Authorizes Congress and the states to regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections. Grants Congress and the states the power to implement and enforce this amendment by appropriate legislation, and to distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections. Declares that nothing in this amendment shall be construed to grant Congress or the states the power to abridge the freedom of the press.”
You are reading that correctly: Initiating an amendment to amend the First Amendment to the U.S. Constitution, and at a stroke, sweep away all recent Supreme Court precedents defending free speech from Citizens United back at least as far as NAACP v. Alabama. While unprecedented in our history, this assault on the Bill of Rights is of a piece with the progressive’s post-constitutional vision of America and her place within the world.
This amendment won’t be happening in the short term. To actually amend the Constitution requires two thirds votes in both the House and the Senate, plus ratification by three fourths of the states. The state legislatures in particular are where Republicans currently hold strong majorities (which is why Mark Levin is pushing his “Liberty Amendments” to be initiated by a convention of the states rather than starting in Congress). But that is all the more reason that we can expect the left to go after state legislature-oriented organizations like ALEC.
The motion to end debate failed by only 6 votes. Like HillaryCare, it will be back, with a vengeance, once the left has pulled the country a few more inches in its direction.
A couple of notable omissions in Strassel’s narrative are Dinesh D’Souza and Mark Steyn. D’Souza was sentenced in 2014 to 5 years’ probation, eight months of community confinement, and psychological counseling for exceeding campaign contribution limits. Mark Steyn has been languishing in judicial limbo for four years, sued by climate scientist Michael Mann for “defamation of a Nobel Laureate” for criticizing the latter in a blog post. Nevertheless, the book is exhaustive in its coverage.
The sheer volume of data points and complexity of the interwoven story lines at times overwhelms even Strassel’s superlative skill and with it, her reader. As an example, Jim Jordan is mentioned several times throughout the book, and featured prominently in one chapter, but is otherwise a relatively minor character in the overall cast that includes such “stars” as Obama, Lois Lerner, Judicial Watch’s Tom Fitton and even Karen Kenney, president of the San Fernando Valley Patriots. So when his last name only is dropped repeatedly and casually in later chapters in a manner that assumes that the reader has fresh recall of his position and significance in the overall scheme, the reader is instead compelled to scramble to the index to retrace the other references and discover that the same index isn’t 100% accurate. As it turns out, there are at least two Jim Jordans, one the Republican congressman from Ohio who led the House Oversight Committee’s investigation into the IRS, and the the other a leftist political consultant associated with George Soros’s groups Americans Coming Together (ACT) and Media Fund, and the John Kerry for President campaign; but neither the text nor the index clarify that distinction. There are no index entries for TIGTA (the Treasury Inspector General for Taxing Administration) or the Zicklin Index, despite many significant references in the text.
There are many similar difficulties throughout the book, especially for those of us who don’t read many detective mystery or conspiracy novels; some of us need a little more hand-holding, and the book might sell better if it did so.
But as with so much else in the current political season, we don’t have the luxury of waiting for perfection. A merely outstanding, indispensable, exhaustive and definitive account, delivered in time to inform the voters of the true nature of the contest, will have to do; in fact, it will do very well.
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