Free speech is under assault.
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 capitol building 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. 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 legislative acts and Supreme Court rulings.
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 v. 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 blowback 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.
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. The IRS demanded details of these groups’ activities, website pages, social-media postings, relationships between and among officers, comprehensive meeting minutes, issue positions, and protest activities, including any arrests that may have resulted from the same, and insisted that group leaders certify the information on penalty of perjury.
As a result of the IRS’s stalling and intimidation tactics, many groups gave up or withered on the vine, unable to attract donations.
Strassel catalogues how 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, depending on who holds the momentary political upper hand. Democrats have an advantage with unions; Republicans have a nominal advantage among the business community. Strassel documents the back-and-forth volleys of legislation: The Tillman Act of 1907; the Hatch Act of 1939; the Smith-Connally Act of 1943; the Taft-Hartley Act of 1947; and the Federal Election Campaign Act (“FECA” — ouch!) of 1971, amended in 1974. Parts of FECA were struck down by the Supreme Court in Buckley v. Valeo (1976), but the disclosure rules notably 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!) The act 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. But they quickly found the blind spot in the law: 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. 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.
The main effect of the 2010 Citizens United 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 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 (Michigan in particular).
The main effect of the 2010 Citizens United Supreme Court decision was to take a bite out of McCain-Feingold.
Strassel argues persuasively that all of this abuse and wasteful expenditure of law-enforcement, 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: First, that the right to spend money for the purpose of disseminating ideas is one and the same with free speech, and second, the right to anonymity (as opposed to forced disclosure) is equally essential to liberty.
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.
In many 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 only Supreme Court justice left that seems to remember NAACP v. Alabama, and to apply its principles consistently, is Clarence Thomas. “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 IRS ringleader, got away with testifying before Congress and then invoking the Fifth Amendment to avoid cross-examination. She avoided any accountability and retired with full benefits.
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.
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.” This unprecedented attempt to amend the First Amendment won’t be happening in the short term. But 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 five 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 recipient,” for the crime of 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. 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.