McConnell: Growing threats to our First Amendment rights
WASHINGTON, D.C. – Senate Republican Leader Mitch McConnell spoke Friday at the American Enterprise Institute on the growing threats to our First Amendment rights. The following are his remarks (as prepared).
One of the things that has always distinguished Americans as a people is the eagerness with which they’ve organized around issues and causes they believe in. As Alexis de Tocqueville put it more than a century and a half ago, “In no country in the world has the principle of association been more successfully used or applied to a greater multitude of objects than in America.”
And yet today, this principle faces a grave external threat. The danger comes from a political movement that’s uncomfortable with the idea of groups it doesn’t like speaking freely, and from an administration that has shown an alarming willingness itself to use the powers of government to silence these groups.
This dangerous alliance threatens the character of America. And that’s why it is critically important for all conservatives – and indeed all Americans – to stand up and unite in defense of the freedom to organize around the causes we believe in, and against any effort that would constrain our ability to do so.
The bulwark of this freedom is the First Amendment. And defending it is what I’d like to talk about today.
It’s hard to imagine a more broadly accepted proposition than the fact that Americans are free, above all else, to speak their minds openly and freely, without fear of punishment or reprisal from government authorities. Human nature being what it is, however, I think we would all have to admit that there will always be a temptation, particularly among those in power, to muffle one’s critics.
But for politicians in this country, it is a temptation always to be resisted. Because any inclination to do so would demonstrate a deeply misguided notion of our proper place in a government that was established, as the preamble to the Constitution makes clear, by the people. For the framers, the highest form of speech, the form of speech most needful of absolute protection, is political speech, particularly at those moments of national decision we call elections.
In other places, at other times, those in authority may have asserted a right to limit speech. But not here. In this country, the government simply does not have the authority. This point was so obvious to the founders that the primary author of the Federalist Papers could suggest that the Bill of Rights was not only unnecessary, but dangerous, since by identifying the things that government can’t do, it might lead some to think that whatever wasn’t listed was fair game.
And, of course, Hamilton was dead on to fear that future governments would attempt to assume powers they were never intended to have. And it’s precisely for this reason that we should all be glad he lost this particular debate, and that the Bill of Rights survived.
Without it, we’d have far less to point to in defending the principles of our founding. And over the past few years, Americans have needed all the help they can get.
Now, for many of us in this room, the constitutional debates we’ve been engaged in over the past few years have been deeply encouraging. They’ve revealed a broad appreciation of our founding principles and a capacity for civic engagement that some had feared was in decline. For me personally, they’ve also provided strong validation of a fight I’ve waged for nearly three decades against those within the government who would micromanage political speech.
At times, this fight has compelled me to take positions that weren’t exactly popular. Opposing a constitutional amendment to ban flag burning was not a popular position in Kentucky, I assure you. My views on so-called campaign finance reform were far from universal, even within my own party. And with very rare exceptions, the media has been merciless.
But as the years have gone by, many of the early critics have begun to come around. And it’s my firm conviction that in the years ahead, I’ll prevail. Since McConnell v. FEC, I’ve filed six amicus briefs in subsequent court battles, with a seventh in the works. But all I’ll really need to win is all I’ve ever needed in this fight: and that’s the 45 words of the First Amendment, and the determination to see their true meaning vindicated.
It’s the same approach that millions of other citizens have taken in battling this administration’s attempts to assume powers it simply does not have under the Constitution. And I’m confident that they’ll be vindicated too. Every one of these fights is winnable, as long as we all keep at it.
But I think that precisely because we’ve been fighting on so many fronts, it’s easy to overlook the growing severity of certain individual threats, including the threat to speech. We see instances of it here and there, but engaged as we are in so many other battles, we risk losing sight of the size and scope of this one. So if you’ll allow me, I’d like to spend a few moments just running through some of what we’ve seen. And then I’ll lay out the stakes as I see them.
The attacks on speech are legion. Perhaps the most prominent is the so-called DISCLOSE Act.
This is the Democrats’ legislative response to Citizens United, in which the Supreme Court correctly ruled that Congress may not ban political speech based on the identity of the speaker. The DISCLOSE Act aims to get around this ruling by compelling certain targeted groups to disclose the names of their donors, while excluding others, such as unions, from doing the same.
Now, to most people the idea of disclosure sounds perfectly reasonable. And throughout my career, I too have consistently called for the full and timely disclosure of all contributions to candidates and parties. But what we’re talking about here is entirely different. What this bill calls for is government-compelled disclosure of contributions to all grassroots groups, which is far more dangerous than its proponents are willing to admit.
Because if disclosure is forced upon some but not all, it’s not an act of good government, it’s a political weapon. And that’s precisely what those who are pushing this legislation have in mind. This is nothing less than an effort by the government itself to exposes its critics to harassment and intimidation, either by government authorities or through third-party allies. And that should concern every one of us.
Those pushing the DISCLOSE Act have a simple view: if the Supreme Court is no longer willing to limit the speech of those who oppose their agenda, they’ll find other ways to do it.
You’ve all heard about the Idaho businessman who’s become a personal target of the president for speaking out on behalf of candidates and causes the president opposes. Shortly after being publicly singled out by the president’s campaign, people were digging through his divorce records, cable television hosts were going after him on air, and bloggers were harassing his kids.
Charles and David Koch have become household names, not for the tens of thousands of people they employ, not for their generosity to charity, and not for building up one of the most successful private corporations on the planet; but because of their forceful and unapologetic promotion and defense of capitalism.
In return for their decades of work, one of the president’s top aides exposed them to public scrutiny by insinuating that they’d done something shady on their taxes. And earlier this year, the president’s own campaign manager sent a mass email to the campaign’s supporters, notifying them of a Koch-backed event, presumably to incite just the kind of mob that showed up.
The results have been predictable. The Koch brothers, along with Koch employees, have had their lives threatened, received hundreds of obscenity-laced hate messages, and been harassed by left-wing groups. One e-mail carried a typical message. It read: “Choose your expiration date.”
If the President of the United States opposed these kinds of tactics, all he’d have to do is condemn them. Instead, he’s joined the effort.
President Obama has publicly accused the Koch’s of being part of a, quote, “corporate takeover of our Democracy,” whatever that means. And not only did his campaign publish a list of eight private citizens it regards as enemies – an actual old-school enemies list – it recently doubled down on the effort when some began to call these thuggish tactics into question.
None of this should be surprising for a former community organizer who told a radio audience shortly before the 2010 mid-term election that Latino voters should vote with the idea of punishing their enemies and rewarding their friends. But all of it should be surprising to a former community organizer who happens to be president.
What’s more, the tactics I’m describing extend well beyond the campaign headquarters in Chicago. To an extent not seen since the Nixon administration, they extend deep into the administration itself.
News reports suggest that top White House officials have long participated in a weekly conference call with a left-wing organization in Washington whose stated purpose is to track conservative media voices, seize on potentially offensive content, and then use it to mount corporate intimidation campaigns aimed at driving these voices clear out of the public square.
Earlier this year, dozens of Tea Party-affiliated groups across the country learned what it was like to draw the attention of the speech police when they received a lengthy questionnaire from the IRS demanding
attendance lists, meeting transcripts, and donor information. One of the group’s leaders described the situation this way: “[groups like ours] either drown … in unnecessary paper work … or you survive, and give them everything they want, only to be hung.”
The head of one national advocacy group has released documents which show that his group’s confidential IRS information found its way into the hands of a staunch critic on the Left who also happens to be a co-chairman of President Obama’s re-election committee. The only way this information could have been made public is if someone leaked it from inside the IRS.
And just last week we learned of an IRS decision revoking the tax-exempt status of small political nonprofit groups that undoubtedly foreshadows an effort to do the same to bigger groups on the Right that the Obama administration regards as a threat to its campaign.
Those who have the resources and the will to fight these things should be commended. Those who don’t should be able to count on our support. But let’s be very clear: no individual or group in this country should have to face harassment or intimidation, or incur crippling expenses, defending themselves against their own government, simply because that government doesn’t like the message they’re advocating.
One person who grasps this issue better than most is Justice Clarence Thomas. And if you haven’t read Justice Thomas’s partial dissent in Citizens United, I highly recommend it. His opinion reminds us that the courts have found the chilling effect of harassment and intimidation on free speech can actually run afoul of the First Amendment.
This is why the FEC has exempted the Socialist Worker’s Party from any public disclosure since 1979. As long as they’re able to show that disclosure has led to harassment, the FEC has been happy to exempt them on First Amendment grounds. As the Court put it in Buckley, “the evidence offered need show only a reasonable probability that the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment, or reprisals, from either government officials or private parties.”
The Court used similar reasoning when it told the state of Alabama back in 1958 that it couldn’t compel the NAACP to reveal the names and addresses of its members. In NAACP v. Alabama, the Court found that compelling disclosure of affiliation with groups that are engaged in advocacy infringed upon the freedom of people to associate with whatever group they like and violated their First Amendment rights.
All of this explains why Justice Thomas thought the majority opinion in Citizens United didn’t go far enough. Citing recent accounts of people who’ve been blackmailed, threatened, and targeted for retaliation for speaking out on various political issues over the past couple of years, he said the Court failed to acknowledge their constitutional significance.
Among others examples, Justice Thomas cites the case of a Los Angeles woman who was forced to resign from a job she’d held for 26 years managing a family-owned restaurant because protesters kept showing up at the restaurant shouting “shame on you” at customers. According to press reports, the police had to show up in riot gear one night just to quell the mob.
The woman’s supposed crime: writing a $100 check in support of California’s Prop 8.
Justice Thomas goes on to note that the advent of the Internet has made these tactics even easier to pull off, and thus increases the likelihood that the public will be discouraged from participating in the political process. It’s a point that’s underscored by recent news reports of a tactic known as Swatting, something Andrew Breitbart raised the alarm about in one of his final interviews.
Here’s how it works. Somebody who knows how to hack into phones calls 911, ostensibly from your phone, and tells the police they just killed somebody. Within minutes, the local SWAT team shows up at your house, guns drawn, helicopters swirling overhead. And while this tactic is clearly criminal and should be prosecuted aggressively, the goal is equally reprehensible – namely to scare people who’ve dared to speak, write, or otherwise support a cause that the Swatters don’t like.
Justice Thomas pretty well sums up my own sentiments on tactics like this in the closing paragraph of his opinion in Citizens United: “I cannot endorse a view of the First Amendment,” he wrote, “that subjects citizens of this nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the prices for engaging in core political speech, the primary object of First Amendment protection.”
Now, what Justice Thomas is describing here – the harassment and intimidation by private citizens of those who choose to participate in the political process – is deplorable. But I think we would all have to admit that it’s of a different order of magnitude from the government itself facilitating or encouraging these things … or the government using its own powers to harass or intimidate those who participate in the political process. And that’s precisely what we’ve seen.
Fortunately, Republicans have been alert to these dangers. One of the most important things we did in the past few years was to block passage of DISCLOSE. But the assaults keep coming.
Democrats in the House and Senate recently proposed the so-called “People’s Rights Amendment”, which basically repeals the First Amendment. And just this week, citing Citizens United, the president’s top political advisor, David Axelrod, told an audience in Manhattan that, quote, “When we win, we will use whatever tools are out there, including a constitutional amendment, to turn [it] back.”
This, my friends, is all you need to know about this administration’s view of free speech. The courts have said that Congress doesn’t have the authority to muzzle political speech. So the president himself will seek to go around it by attempting to change the First Amendment.
Amending the First Amendment for the first time in history would be the ultimate act of radicalism.
And yet these are not the only ways the administration is aiming to restrict speech. In a standard tactic of the Left, what they haven’t been able to achieve through the courts or Congress, they’re already attempting to achieve through regulations.
Over at the FEC, the Democrat commissioners are pushing a rule to compel third-party groups to reveal their donors. They’re deadlocked at the moment, with all three Republican commissioners standing strong. But this effort isn’t limited to the FEC.
The FCC just finalized a rule requiring broadcasters to list the names of any groups that pay for, or want to pay for, television ads online. The National Association of Broadcasters is fighting back right now in court.
Last year, the SEC proposed a rule requiring shareholder approval or disclosure of political activities. And under pressure from left wing groups, many companies have already included the question on their proxy statements.
During the health care debate, the Department of Health and Human Services issued a gag order on Humana and other private health insurers, saying they can’t inform seniors about what Obamacare meant for them. More recently, HHS spent $20 million in taxpayer money to promote Obamacare. So they’re stifling speech that’s critical of the bill, even as they tell taxpayers they’ve got to foot the bill for the administration’s own efforts to promote it.
And it’s not just the agencies.
Over at the White House, the president’s lawyers recently circulated a draft executive order that would have required anyone bidding for a government contract to disclose political donations, including those of affiliates and subsidiaries, officers and directors in excess of $5,000. The message of the order was clear: if you want a government contract, you better support our causes, or at least keep your mouth shut when it comes to the causes we oppose.
It’s the same message that an administration official sent last week when asked about Newark Mayor Cory Booker’s relationship with the administration after he had the nerve to speak his mind about the president’s attacks on private equity. “He’s dead to us,” he said.
My own view has always been that if you can’t convince people of the wisdom of your policies, then you should come up with some better arguments. But for all its vaunted tolerance, the political Left has consistently demonstrated a militant intolerance for dissent. Sadly, a growing number of people on the Left, and now within government itself, appear to have concluded that they can’t win on the merits. So they’ve resorted to bullying and intimidation instead. And the potential consequences are grave.
Which brings me to another point.
It should go without saying that the political Left has always faced an uphill climb in a country in which there are two self-identified conservatives for every self-identified liberal. America is not Western Europe. In order to succeed in this environment, liberals have generally resorted to one of the three tactics I’ve already identified: obscuring their true intent, pursuing through regulation and the courts what they can’t through legislation, or muzzling their critics.
But there’s another element to these efforts that’s less widely understood, but that I believe is essential to understanding why it is that liberals have been working so hard to regulate political speech over the past four decades. It involves the great assumption behind all of their campaign finance efforts: that the collision of private interests with politics is somehow inherently corrupting.
This is the great untested premise behind all these efforts to regulate political speech. And few people stop to think of just how radical it is. Because whether it’s the public financing of campaigns, or the
attempt to impose limits on the political speech of any business or group that doesn’t happen to own a newspaper or a news studio, what all these efforts have in common is a deep suspicion of the private sphere.
All these efforts are for the purpose of limiting the ability of those engaged in private enterprises – or certain disfavored private groups or associations – to influence the direction of our country by participating in the electoral process. The goal is to hermetically seal off Congress from anyone engaged in the private economy or in certain kinds of advocacy, for that matter, outside the public sector.
And the assumption behind all these proposals is the same assumption that appears to underlie this President’s economic and regulatory policies; that anyone who makes a profit is either cheating their customers, mistreating their employees, or both. Their motives are impure, those who interact with them are somehow duped, and therefore they’re not entitled to the full protections of the First Amendment.
For those who hold this view, the legislative Holy Grail has always been taxpayer-funded campaigns. If the advocates of this approach had their way, government would control how much is spent on elections, and how it’s directed, courtesy of the taxpayer.
But the question is, who would have sway over the politicians then?
With private interests pushed to the sidelines, the only voices lawmakers could be expected to respond to would be the self-appointed tribunes of the public interest. Private interests would end up with minimal influence on the direction of public policy, and the odds of people running toward public sector solutions would increase dramatically.
If you write the rules of the game, it’s easier to win the game - especially for incumbent politicians, I would add. And that’s what the so-called reform crowd has always had in mind.
Now, it’s important to remember that one of the things that makes effective the harassment and intimidation tactics I’ve described is their selectivity. There aren’t exactly a lot of folks running to the ramparts to defend oil company executives and hedge fund managers. But we all need to understand something: the minute we allow ourselves to be convinced that some people stand outside the protections of the First Amendment, we’re all in trouble.
These rights don’t exist to protect what’s popular. They exist precisely to protect what isn’t. That’s why it’s a mistake to view the recent HHS mandate as merely a “Catholic” issue. And that’s why it’s a mistake to view the attacks we’ve seen on “millionaires and billionaires” as outside our concern. Because it always starts somewhere; and the moment we stop caring about who’s being targeted is the moment we’re all at risk. If we don’t protect unpopular speech, no speech is safe. If we don’t protect unpopular expressions of belief, then no belief is safe.
Let people support whomever they want as much as they want to, and let the best man or woman win. Then government could finally get out of the business of divvying up speech rights that it has no authority to confer. That’s what the founders intended. In my view, no one who values our freedoms should accept anything less.
As the Court put it in Buckley: “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed to secure the widest possible dissemination of information from diverse and antagonistic sources, and to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”
Campaign contributions are speech, and in case anybody thinks unlimited contributions are a bad idea, or somehow far-fetched, just look across the Potomac to Virginia, which imposes no restrictions on contributions whatsoever. Last I checked, elected officials in Virginia are no more prone to scandal than officials in states that impose contribution limits.
And corporations are no more taking over politics there than they are anywhere else. Indeed, for all the talk after the Citizens United ruling about the corporate takeover of politics, not a single Fortune 100 company contributed a penny to the eight Super PACs that supported the Republican primary candidates. And that includes Big Oil, Wall Street banks, and health insurers – the three corporate bogeymen that President Obama himself warned us about in the wake of the Court’s ruling.
Here’s my larger point.
One of the traditional strengths of the conservative movement has always been its great diversity. We don’t all agree on everything. But my message to you today is there are certain principles that should always unite us: and one of them is the inviolability of the First Amendment. And that’s why we’ve all got to unite against these tactics, wherever we see them. If you see these things, speak up. Call out the offenders. Get ready for the criticism. And fight back.
For me, that’s meant a very long-battle against efforts to constrain political speech. It may not be the most glamorous issue out there. And it didn’t make me any friends on any editorial boards that aren’t run by
Paul Gigot. But a great freedom is at stake. And having been in this fight for a long time, I can tell you this: when you’ve got an administration that’s willing to throw core constitutional protections out the window for the sake of an election, we’re in very dangerous territory indeed.
This may not be the fight that brought you to Washington. But it may very well be the one that keeps you from achieving your goals. Especially if you’re a conservative, your ability to speak out on behalf of that cause is very much at stake right now. But as I said at the outset, this isn’t just a conservative fight. It affects all of us. Because everyone in this room, liberal or conservative, is engaged in what they regard as very important battle of ideas. And the First Amendment makes all of that possible. If we lose the right to speak, we’ve lost these battles before they’ve even been waged.
I know that as November draws near, some of those running for office will feel the need to choose their battles. There will be a very strong temptation, particularly among conservatives, to take this particular issue off the table, to make concessions. My advice is to resist the temptation. Because, as I’ve said, everything we’re fighting for is contingent on our ability to speak our minds.
And so my plea to you is this: unite. Send a message to the next generation of leaders, whatever their stripe, that the First Amendment is something about which there can be no compromise. We may not win every fight, but we can at least guarantee we’ll always have a place in the debate. And in the end, I’m confident, the best ideas will always win out.
After all, that’s how free markets work. Whether it’s a market for goods or, the market of ideas, the best product will win in the end. And no American should ever be afraid of that.
As Oliver Wendell Holmes put it nearly a century ago, “The best test of truth is the power of the thought to get itself accepted in the competition of the market”
And the best defense of this truth we have is still found in that sweeping command: “Congress shall make no law… abridging the freedom of speech.”