I sat down recently with Senate Minority Leader Sen. Mitch McConnell (R-KY) to discuss the first amendment and free speech issues during the 2012 campaign. He had plenty to say on campaign finance disclosure, enemies lists and the left’s fight to shut down political opposition.
LEVEY: What first made you interested in the free speech cause – including fighting campaign finance reform – and why are you so passionate about it?
SEN. MCCONNELL: It goes back a long way. I was teaching part-time. I was a struggling lawyer who taught a night class around the time of Watergate and the post-Watergate legislation. The course I taught was called “American Political Parties & Elections” and obviously, the year I taught it was about the time Nixon resigned and all the subsequent legislation that lead to the Buckley v. Valeo decision was being debated. As someone who went into politics myself, I guess you could say I’m a practitioner so both from an academic and practitioner’s point of view I’ve had a long standing interest in this issue. And it’s an issue that never seems to go away because the temptation of those in power to draft the rules in such a way that benefits them and disadvantages their enemies is always there.
And one of the great disappointments I’ve had on this issue is to have to witness a Republican president sign McCain-Feingold, a bill that passed through a Republican house and a Republican senate. There have been temptations on a bipartisan basis from time to time to pass bills that have clearly advantaged one side of another. I came to believe a long time ago and continue to believe that we don’t have a problem in this country because we have too much political speech and I don’t think we ought to monitor who gets to talk.
I was always particularly offended that corporations that own media outlets had full First Amendment rights and those that didn’t did not. And of course that was the great thing about Citizens United. The fundamental holding of the case which was entirely about corporate political speech only – that’s all it was about – eliminated the preferential treatment for companies that owned media outlets and said the First Amendment right to participate in political discourse without quantification by government is available to everyone in the corporate world. So I think that was a big step in the right direction.
So what did our friends on the left want to do? They want to try to intimidate people off the playing field. The president attacked the Supreme Court over this decision and they’ve had agencies of the government – the IRS, the FEC, the FCC – going after donors trying to shut them up, intimidate them off the playing field. The Obama campaign itself was rifling through the divorce records of one of the donors to Mitt Romney’s Super PAC.
It’s clear when they say they want disclosure what they really mean is we want the opportunity to go after those on our enemies list. It’s quite reminiscent of Richard Nixon – I’m old enough to remember that period – this Nixonian fixation on enemies begins in the White House and reverberates out from there to the president and his allies both inside the government and outside the government. It’s a genuine threat to free speech.
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LEVEY: You mentioned selective disclosure and that’s an important point because we all know what the motivation behind this is. But people on the left will say “whatever statutes we pass for further disclosure will apply to all groups equally.” How do we counter that?
MCCONNELL: Look at it this way: We already have not only disclosure but limits on contributions to parties and candidates. There are limits on contributions and full disclosure. 527’s which directly advocate for candidates are already fully disclosed. That’s how we know some of these very wealthy people like George Soros and others on the right are giving – because they’re contributing to the so-called Super PACs which already disclose. So the vast majority of financed political speech is already disclosed.
Now what they want to focus on is 501(c)4’s which exist not solely for the purpose of being involved in politics. These are social welfare groups that have to spend 50% of their money on non-political activities and it includes a lot of American groups on both the right and the left. Don’t they have enough people to harass already? Because they know who’s given to candidates, they know who’s given to parties, they know who’s given to 527’s. Now they want to find out everybody who’s given.
Which reminds me of NAACP v. Alabama, the famous 1958 case where the state of Alabama was trying to get the membership list of the NAACP. There was a right to keep that confidential because of the clear goal of Alabama with regard to that group. It’s also noteworthy that the Federal Election Commission since 1979 has said that the Socialist Worker’s Party does not have to disclose. It’s the only political party I’m aware of that doesn’t have to disclose. And the rationale for that is the harassment, intimidation and threats that their donors would be subjected to. So there are some examples where the privacy of donor lists and membership lists — it strikes me — remain an important part of the American discussion.
LEVEY: Given the NAACP precedent, why can’t the tea party groups being asked for their membership lists and meetings notes by the IRS take some kind of legal action?
MCCONNELL: They don’t have much money. They’re up against the State here. We had one quote from a Kentucky tea party activist. They’re confronted with a choice between compliance and getting hung, or not complying and getting subjected to costs that they can’t afford.
I think the best thing for America would be for either side to just accept the notion that not everyone is going to agree with them and there are going to be great national debates in the country and let the marketplace of ideas determine the outcome and quit the business of trying to quiet the voices of those who oppose what we’re trying to do. They ought not to do that and we ought not to do that.
LEVEY: So you wouldn’t suggest that groups that are under attack from the Obama Administration or from outside groups like Media Matters use legal action?
MCCONNELL: Some of them can afford to a hire a lawyer and some of them can’t. But for those who can’t they’re left with a Hobson’s choice: comply and get hung or don’t comply and hire a lawyer. …
Which gets me back to Richard Nixon and the enemies list. The White House knows who their enemies are and they’re going after them and using the power of the government to do it or using their campaign to do it. And the appropriate analogy I assure you is Richard Nixon and his enemies list.
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LEVEY: And it may actually be a violation of the First Amendment.
MCCONNELL: Well, they’re very queasy about the First Amendment. You know Axelrod has said one of the things the president wants to do after he gets reelected is amend the First Amendment for the first time in history – an act of genuine radicalism. Let me mention we had that vote in the Senate about ten years ago to amend the First Amendment to allow the government to control political speech. You’d be interested to know that among the people who opposed that – it didn’t get many votes – were Ted Kennedy, Paul Wellstone, and Russ Feingold. … Is there nothing these people won’t do to win? Nothing?
LEVEY: How are they going to exempt themselves from it, because they seem to have a double standard? When it comes to conservative Super PACs, for example, they want disclosure. But with the Obama Super PACs – Priorities USA, American Bridge – they … (interrupted)
MCCONNELL: That gets back to my initial point. They want to craft the rules to advantage themselves and disadvantage their opponents. The problem with that line of thinking is what if the conservatives control the government and have the same view and the shoe was on the other foot. That’s how short-sighted all that is. These people are scary and they need to be stopped. The best way to do that is on the first Tuesday in November this year.
LEVEY: Do you think it will be a lot better under a GOP Administration? …
MCCONNELL: I think it will be better. I’ve discussed this issue with Governor Romney and with my colleagues in the Senate and with the Speaker. I don’t think you’ll see any more legislation like [McCain-Feingold] coming out of a new conservative Congress and president. I don’t think you’ll see it.
LEVEY: CREW [Citizens for Responsibility and Ethics in Washington] did a FOIA request for FCC documents about Fox News and News Corp. The FCC responded in just 3 weeks and handed over virtually everything requested. Which I’m sure you know, speed or thoroughness-wise, is not normal. So we know CREW has friends on the inside and I just worry that that’s a broader problem.
MCCONNELL: The regulators are all appointed by the president of the United States and it’s not surprising to me that you have regulators that are sympathetic to groups like CREW. That’s one of the many reasons why we need a new president. And I assure you that since the Senate confirms all these people that we’ll be vetting nominees from a Republican president just like we do from a Democratic president – hopefully with a much better set of options being sent down to the Senate for confirmation from a different president.
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LEVEY: Speaking of electing Romney, it’s been said that outside groups that are running pro-Romney ads are raising a lot more money than outside groups running pro-Obama ads. Do you think there’s a real difference there or is it like comparing apples and oranges?
MCCONNELL: It does raise the question of why they weren’t so upset about this back in ’08 and ’04 when most of the outside groups were on the left. I don’t remember them being so upset about all this – do you?
LEVEY: I think it was just the opposite – the fact that Obama raised a lot more money than McCain was taken as a sign that Obama was so popular.
MCCONNELL: I just don’t recall the outrage. … This was never a problem when they were dominating the outside groups.
LEVEY: Other than suing, what can people who are sympathetic to your concerns do to fight?
MCCONNELL: Elect Romney president and make me the majority leader of the Senate. We need to change the White House – which then changes the people who get nominated for these kinds of things – and have people in power who don’t think they’re given a license to shut up their opponents.