Free The Intimidation Game by Kimberley Strassel Page A

as he tells me, “there should be a very heavy burden on anybody who wants to invade your political privacy.”
    When Smith talks about disclosure, he likes to reference that McIntyre decision of 1995. “You’ve got to think about this in context, not legal speak,” he says. Here is an average mom just trying to raise the alarm about a school tax. “Which means she is a person whose kids could easily face retaliation from teachers who don’t appreciate a parent opposed to more school funding,” he says. Smith is himself the child of two teachers, and grew up understanding how vindictive the profession can be. “Those kids might have trouble getting references for college; they might be punished in band, or chess club, or in their athletics. There’s a whole bunch of reasons, in a public school, that you don’t want to be known as the kid whose parent is leading the charge against the tax increase.”
    And the McIntyre case, Smith adds, was about vindictiveness. School officials knew exactly who had distributed the flyer; it is how they were able to file a complaint against McIntyre with the Ohio Elections Commission in the first place. There was no “disclosure” problem. “The complaint was instead filed to send a message to others to not do the same thing,” says Smith. “Is that what we want disclosure laws used for?”
    As an FEC commissioner, Smith saw up close and in person the ways that disclosure discouraged political speech. He also saw how the burdens always fell disproportionately on the little guys—folks like Karen Kenney. Corporate America and powerful political groups hire teams of lawyers to walk the right side of the law. But the average American has no such legal adviser, and their hardest area of compliance is disclosure. “Even small, grassroots groups, they generally understand the big rules. There is an easy cheat sheet for them to follow,” says Smith. “But the disclosure forms are insanely complex. Nobody can get them right.”
    Conservatives are fortunate to have had a string of distinguished free-speech advocates at the FEC, including one who immediately followed Smith, Hans von Spakovsky. Von Spakovsky worked years in the Justice Department before serving at the FEC as a commissioner in 2006 and 2007. He remembers his own first realization that conservatives had made a mistake in embracing disclosure. The FEC was contacted by a woman who had given a contribution to a political candidate whom animal rights groups detested. Those groups tracked down her name with disclosure forms and started harassing her. “She wanted her name off these public lists, so they’d leave her alone,” he recalls. “We evaluated it, but there was nothing we could do under the law. And that was one of the first times I saw the really bad purposes to which disclosure laws could be put. They sound innocuous, but there are all kinds of things that are innocuous until they are used in a bad way. Say, box cutters.”
    The problem is that disclosure and finance laws have become an article of faith for much of America, particularly liberals. Smith remembers getting in an elevator at the 2000 Republican convention and discovering himself in the company of the liberal Al Hunt, then a Wall Street Journal columnist. Hunt had written critically of Smith during his nomination to the FEC. Smith recalls that after a few seconds of polite chitchat, Hunt proclaimed that it didn’t matter that Smith had recently been confirmed, because the FEC never did anything useful anyway. Smith disagreed; the FEC played an enormous (often terrible) role. He attempted to explain to Hunt that he’d met many average Americans who were “scared to death” of the FEC and of running afoul of its scary laws, and that this discouraged them from taking part in politics. By the end of the elevator ride, Smith remembers, Hunt was screaming at him—and the conservative law professor had learned something about the depths of liberal love