June 22, 2012 | Commentary on Legal Issues
It was standing room only at the American Enterprise Institute last Friday. The draw? Senate Minority Leader Mitch McConnell (R-Ky.), who gave a stirring defense of political free speech, as highlighted in this hour-long video of the speech at C-SPAN. This cornerstone of American democracy has been under continuing attack by those who claim they are trying to “reform” our campaign finance system.
McConnell’s defense of the First Amendment was a remarkable contrast to President Obama, who has attempted to restrict political speech rights in one example after another during his administration. As AEI’s Peter Wallison said in his introduction, McConnell is one of the “few good men” in Washington who has been relentless in defending the First Amendment.
Sen. McConnell began his speech by pointing out that what has always distinguished Americans “as a people is the eagerness with which they have organized around issues and causes they believe in.” He expressed his concerns over an administration that “has shown an alarming willingness itself to use the powers of government to silence” groups that hold different views. He stressed the importance of politicians resisting the temptation to muffle “one’s critics.” The Framers intended and recognized that “the form of speech most needful of absolute protection is political speech.”
McConnell spoke of his own experiences over the last three decades, often taking an unpopular stance (“the media has been merciless”) in order to protect these First Amendment freedoms, such as his fight against the 2002 McCain-Feingold amendments to federal campaign finance controls. All McConnell needed to win were “the 45 words of the First Amendment, and the determination to see their true meaning vindicated.”
McConnell went on to highlight instances of the federal government’s most recent attacks on political speech. Most prominent is the proposed DISCLOSE Act, the legislative response to the Citizens United decision. “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.” McConnell called the Act a “political weapon” intended to force disclosure on some viewed as enemies by the sponsors but not on those viewed as allies (unions). It also calls for “government-compelled disclosure of contributions to all grassroots groups, which is far more dangerous than its proponents are willing to admit.” This is nothing less than an effort by the government to expose “its critics to harassment and intimidation.”
The senator then gave examples of such harassment, such as the “Idaho businessman who becomes a personal target of the president for speaking out on behalf of candidates and causes the president opposes.” The Koch brothers have become targets because of “their forceful and unapologetic promotion and defense of capitalism.” The president’s campaign even published an enemies list, “thuggish tactics” according to McConnell, and the president himself told Latino voters to “vote with the idea of punishing their enemies and rewarding their friends.” McConnell said the president should be condemning such tactics, not joining in them.
As McConnell said, “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.”
McConnell praised Justice Clarence Thomas’s partial dissent in Citizens United. It reminds us of the “chilling effect of harassment and intimidation on free speech.” The Supreme Court used similar reasoning in 1958 when it told the state of Alabama that it “couldn’t compel the NAACP to reveal the names and addresses of its members.” Compelling disclosure from groups engaged in advocacy infringes upon the freedom of people to associate with whatever group they like and violates their First Amendment rights. The advent of the Internet has made such threats and intimidation much easier to commit, a point that is underscored by the newest tactic of “swatting” being used against conservative bloggers.
As McConnell said, “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, 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.’” Such harassment is bad enough, but according to McConnell, it is “a different order of magnitude from the government itself facilitating or encouraging” such behavior or “using its own powers to harass or intimidate those who participate in the political process.” And that, he observed, is “precisely what we have seen.”
Even worse is the recently proposed “People’s Rights Amendment.” It “basically repeals the First Amendment,” McConnell said, adding that amending the First Amendment “would be the ultimate act of radicalism.” Yet the president’s top political advisor, David Axelrod, told an audience in Manhattan that when the president is reelected, “we will use whatever tools are out there, including a constitutional amendment, to turn” back the Citizens United decision.
McConnell detailed schemes by the FEC, SEC, and FCC to limit political speech rights and criticized the White House for drafting a proposed executive order—first disclosed by PJ Media—that would force anyone bidding for a government contract to reveal their political donations. The “message of the order was clear: If you want a government contract, you’d better support our causes, or at least keep your mouth shut when it comes to the causes we oppose.”
According to McConnell, the common assumption underlying proposed campaign finance regulations is that those who make a profit are cheating their customers or mistreating their employees—or both. Therefore, these groups or people do not deserve First Amendment protection. McConnell made the key point that these constitutionally vested rights do not solely protect speech that is popular. Unpopular speech was what the Framers intended to provide with the greatest protection.
For “all its vaunted tolerance, the political Left has consistently demonstrated a militant intolerance for dissent.” McConnell said. Because they seem to have concluded “that they can’t win on the merits,” they have now “resorted to bullying and intimidation instead. And the potential consequences are grave.”
The wrongful assumption that underlies much of this attempt to regulate political speech is that “the collision of private interests with politics is somehow inherently corrupting.” The attempts “to impose limits on the political speech of any business or group that doesn’t happen to own a newspaper or a news studio” have in common “a deep suspicion of the private sphere.” McConnell said that “few people stop to think of just how radical [that] is.”
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.”
McConnell also emphasized that “campaign contributions are speech.” Anyone who thinks lifting federal contribution limits would be a bad idea should “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 contrary to all of the claims of critics of the Citizens United decision, “corporations are no more taking over politics there than they are anywhere else.” Indeed, “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.”
McConnell called for conservatives, with all of their diverse views, to unite and fight against the current attacks on the First Amendment. If we lose the right to free speech, every group, including both liberals and conservatives, will have lost. He further called for conservatives to keep this issue prominent in the election and not push it to the back or make concessions. “When you’ve got an administration that’s willing to throw core constitutional protections out the window for the sake of an election,” he said, “we’re in very dangerous territory indeed.”
McConnell’s final heartfelt plea to his audience was 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.”
As a former commissioner on the Federal Election Commission, I have to say “amen” to Sen. McConnell’s remarks. The unprecedented attacks on political speech by “reform” groups and mainstream media outlets have been unrelenting in the last three decades. The so-called “reform” laws passed by Congress with the approbation of the Washington Post and the New York Times to regulate the financing of federal campaigns have been complex, confusing pieces of legislation intended to protect incumbents and chill political speech. Everyone who believes in the First Amendment and the fundamental rights protected by the Bill of Rights should unite to fight these deceptively-labeled “reform” efforts.
The First Amendment does not need to be reformed, just abided by.
First appeared on PJMedia.com.