MCCONNELL: The First Amendment is still under assault

Last June, I spoke at the American Enterprise Institute and warned of a grave and growing threat to the First Amendment. That threat has not let up. Our ability to freely engage in civic life and to organize in defense of our beliefs is still under coordinated assault from groups on the Left that don’t like the idea of anyone criticizing their aims, and from a White House that appears determined to shut up anybody who challenges it.

On the outside, there’s a well-documented effort by a number of Left-wing groups like Media Matters to harass and intimidate conservatives with the goal of scaring them off the political playing field and off the airwaves.

An internal Media Matters memo from January 2010 showed the extent to which these tactics have been turned into a science. In it, we learned of the group’s plan to conduct opposition research into the lives of on-air news personalities and other key decision makers at Fox News, and to coordinate with 100 or so partner groups to pressure the network’s advertisers and shareholders, get this, “by the threat of actual boycotts, rallies, demonstrations, shame, embarrassment and other tactics on a variety of issues important to the progressive agenda.”

Its multiple databases could also be used, the memo said, to remove what it describes as “chronically problematic media figures,” or “to preempt programming” … altogether.
 
Then, of course, there’s the widespread effort to stifle speech from within the government itself, something the Obama Administration has been engaged in from its earliest days.

Some have traced this back even further, to the 2008 campaign. But my central point last June, and my central point today, is this: the attacks on speech that we’ve seen over the past several years were never limited to a few Left-wing pressure groups or the DISCLOSE Act, which I’ll turn to in a minute. They extend throughout the federal government, to places like the FEC, the FCC, HHS, the SEC, and as all Americans now know — even to the IRS. These assaults have often been aided and abetted by the administration’s allies in Congress. And they’re as virulent as ever.

As for the IRS, my own concerns trace back to a phone call I got from a constituent early last year, who said he’d been subjected to excessive questioning and unreasonable deadlines from the IRS. When similar complaints followed, I sent a letter to IRS Commissioner Shulman asking for assurances that there wasn’t any political targeting going on. I said public confidence in the IRS depended on it. Six weeks later I got a lengthy response from the Deputy Commissioner, Steven Miller, in which he basically told me “move along, nothing to see here.”

Well, now we know that wasn’t the case.

Now we know that the IRS was actually engaged in the targeted slow-walking of applications by conservatives, and others who were, get this, criticizing “how the country [was] being run.” It overwhelmed them with questions and paperwork, and in some cases initiated audits on folks that had never been audited before.

In one case, an IRS agent allegedly demanded that the board members of an Iowa pro-life group sign a declaration that they wouldn’t picket Planned Parenthood. Several pro-Israel groups have said that they were singled out by the IRS for audits after clashing with the administration over its policy on settlements.

Then there’s the story of Catherine Engelbrecht.

Catherine says that after applying for tax-exempt status for a voter-integrity group called True the Vote, she and her husband were visited by the FBI, the ATF, OSHA, and an affiliate of the EPA. When all was said and done, OSHA told the Engelbrecht’s they had to cough up $25,000 in fines. The EPA affiliate demanded they spend $42,000 on new sheds. And three years after applying for tax-exempt status, True the Vote is still awaiting approval.
The list of stories like these goes on and on. And so now we have an administration that’s desperately trying to prove that nobody at the top was involved in any of this stuff, even as they hope that the media loses interest in this scandal and moves on.

But we can’t move on.

Because as serious as the IRS scandal is, what we’re dealing with here is larger than the actions of one agency or any group of employees. This administration has institutionalized the practice of pitting bureaucrats against the very people they’re supposed to be serving, and it needs to stop.

The good news is, more people are beginning to catch on.

When I warned about all this last year, I got slammed by the usual suspects on the Left. They said I was full of it. But even some of them now seem to realize that just because McConnell’s the one pulling the alarm doesn’t mean there isn’t a fire. The IRS scandal has reminded people of the temptations to abuse that big government, and its political patrons, are prone to. People are waking up to a pattern. They’re connecting the dots. And they’re rightly troubled.

Looking back, the IRS scandal helps explain a lot of the things this administration has done. You all remember the President wagging his finger at the Supreme Court during his 2010 State of the Union address. Well, I assure you this little piece of presidential theater wasn’t done for the ratings. There was a good reason the President and his allies devoted so much time and energy to denouncing the Citizens United case. But it’s not the reason they gave. I realize this may be shocking to some of the interns in the crowd. But the fact is, the Court’s decision was actually fairly unremarkable.

All it really said was that, under the First Amendment, every corporation in America should be free to participate in the political process, not just the ones that own newspapers and TV stations. In other words, there shouldn’t be a carve-out when it comes to political speech for folks who own media companies. It was a good and fair decision aimed at leveling the playing field.

The real reason the Left was so concerned about Citizens United was that they thought it meant more conservatives would start to form what are known as social-welfare organizations — something they’d been doing, with groups like Planned Parenthood and the Sierra Club, for years. And what’s notable about social welfare groups is they don’t have to disclose their donors.

That was the main concern of the President and his allies. They weren’t interested in the integrity of the process. If they were, they’d have been just as upset at Left-wing groups for maintaining the privacy of their donors. What they really wanted was a hook that enabled them to stir up outrage about conservative groups, so they could get their hands on the names of the folks who supported them — and then go after them. Citizens United provided that hook.

As a longtime political observer and First Amendment hawk, I knew exactly what the Democrats were up to with their complaints about this decision. I’ve seen what the loudest proponents of disclosure have intended in the past, and it’s not good government. That’s why the FEC has protected the donor lists of the Socialist Worker’s Party since 1979. That’s also why the Supreme Court told the State of Alabama it couldn’t force the NAACP to disclose the names and addresses of its members back in the 1950s.

The President could claim, as he did six months after wagging his finger at the Supreme Court, that “the only people who don’t want to disclose the truth are people with something to hide.” But the fact is, there’s a very good and legitimate reason that courts have protected folks from forced disclosure — because they know that failing to do so would subject them to harassment.

So the political response to Citizens United, the so-called DISCLOSE Act, wasn’t really about cleaning up politics: It was about finding a blunt political weapon to use against one group and one group only: conservatives. Those who doubt this haven’t been paying attention to the tactics of the Left. They must not have noticed the stories about top administration officials holding weekly phone calls with groups like Media Matters. They clearly don’t know their history. And they must not have noticed the enemies list of conservative donors on the Obama campaign’s Web site. Or the strategic name-dropping of conservative targets by the President’s campaign team.

These folks were talking about the Koch Brothers so much last year you’d think they were running for President. About six months after the President berated the Supreme Court, he even went so far as to call out Americans for Prosperity by name. It was like sending a memo to the IRS that said “audit these guys”.

All these things together point to a coordinated effort to stifle speech. And that’s why one of the most enduring lessons from the IRS scandal comes from the timeline.

Based on the IG report, we now know that a team of IRS specialists was tasked with isolating conservatives for scrutiny as early as March 2010. What matters isn’t whether they were doing it in Washington or Cincinnati — or Duluth, for that matter. What really matters is that it coincided with a very public campaign by the President, and a small army of Left-wing allies in and out of government, to vilify anyone who had recently formed a group around conservative causes.

What happened before this targeting began is just as important as what happened after.

What matters here was the atmosphere; what matters is the culture of intimidation this President and his allies created around any person or group that spoke up for conservatism — or against the direction the President and his administration wanted to take us.

The so-called “special interests,” he said, would “flood” the political process, with money that might be coming from “foreign entities.” “The problem”, he said, “is nobody knows” who’s behind these groups. They were “shadowy.” They might even be “foreign controlled”. These were the kinds of unsubstantiated claims the President and his allies trafficked in from early 2010 right up through the election, and they were just as reckless and preposterous as Harry Reid saying Mitt Romney hadn’t paid his taxes in 10 years. They may have been wrapped in the appealing rhetoric of disclosure, but make no mistake: the goal was to win at any cost, and that meant shutting up their opponents in any way they could. So, no, I don’t believe that the President ever actually picked up a phone and told someone over at the IRS to slow-walk those applications or audit anybody. But the truth is, he didn’t have to. The message was clear enough.

But if the message was clear, the medium was also perfectly suited to the cause. The federal bureaucracy, and in particular the growth of public sector unions, has created an inherent and undeniable tension between those who believe in limited self-government and those who stand to benefit from its growth. Let’s face it, when elected leaders and union bosses tell the folks who work at these agencies that they should view half the people they’re supposed to be serving as a threat to democracy, it shouldn’t surprise any of us that they would. Why would we even expect a public employee — whose union more or less exists to grow the government — to treat someone who opposes that goal to a fair hearing? When the head of the union that represents unionized IRS workers publicly vilifies the Tea Party, is it any wonder that members of her union would get caught targeting them?
This is something liberals used to worry about.

FDR himself was horrified at the idea of public workers conspiring with lawmakers over how to divide up the taxpayer pie. To him, it was completely incompatible with public service for the public to be cut out of a negotiation in which the two sides are bartering over their money. Even the first president of the AFL-CIO once said it was impossible to bargain collectively with the government. Yet that’s exactly what we have today. Over the past several decades, the same public employees who’ve arrogated vast powers to themselves have conspired with their patrons in Congress to expand those powers even more, and to endlessly increase the budgets that finance them. This isn’t done in the interest of serving taxpayers; it’s done in the interest of fleecing them. Because that’s what happens when politicians start competing for the support of public-sector unions – they stop serving the interests of the people who elected them and start serving the interests of a government they’re supposed to be keeping in check.

There’s no better illustration of this than the news this week that in the midst of congressional hearings into their activities, unionized employees at the IRS are about to get $70 million in bonuses. The IRS union is thumbing its nose at the American people. It’s telling them in the clearest terms possible that it doesn’t care about this scandal, or how well government works, or how well it’s serving the public. All it cares about is helping union workers get theirs. It’s pure arrogance, and it reflects a sense of entitlement better suited to an aristocracy than to a nation of constitutional self-government. So it’s increasingly appropriate to ask whose interests these public sector unions have in mind — the taxpayers’, or their own. And on this question, I’m with Jonah Goldberg: public sector unions are a 50-year mistake.

Years ago, I saw the dangerous potential for collusion between lawmakers and public employee unions when I served as County Executive of Jefferson County, Kentucky. And I fought hard against the formation of public sector unions. At the time, there was bipartisan agreement on this issue. Most people realized it wasn’t in the public interest. But unfortunately the appeal of union support proved too great for some, and shortly after I was elected to the Senate, the dam of resistance broke, ushering in the same destructive arrangement that’s been gutting the finances of other cities across the country.

The existence of public-employee unions is without question a big part of the reason people have so little trust in government these days. They are the reason so many state and local municipalities are flat broke. They’re behind the unsustainable expansion of public pensions. They’re a major problem, and today I’m calling for a serious national debate about them.

On the federal level, the first thing we should do is stop the automatic transfer of union dues from employee salaries at the taxpayer’s expense. If the unions want their dues, it should be incumbent on them, not us, to pay for it.

So the assault on free speech continues, and it’s clearly an uphill battle, but if we’re alert to the tactics of the Left, and take these assaults one by one, I’m confident we’ll beat them back.

Let me give you a couple final examples of what I’m talking about. Right now, there’s an effort over at the FCC to get groups that buy campaign ads to disclose their supporters. This is utterly irrelevant to the mission of the FCC. We need to say so. The SEC is under pressure right now to force publicly-traded companies into disclosing all their political spending, even though it has no core interest in knowing what political causes companies support. This proposal doesn’t protect shareholders, and it doesn’t lead to better corporate governance. We need to call this stuff out.

For the Left, this isn’t about good government or corporate governance, it’s about winning at all costs – even if that means shredding the First Amendment.

And that’s why we need to be vigilant about every one of these assaults. They may seem small and isolated in the particular, but together they reflect a culture of intimidation that extends throughout the government — a culture abetted by a bureaucracy that stands to benefit from it.

The moment a gang of U.S. Senators started writing letters last year demanding the IRS step in and force more disclosure upon conservative groups, we all should have cried foul.

The moment the White House proposed a draft order requiring applicants for government contracts to disclose their political affiliations, we all should have called them out.

When the HHS Secretary told insurance companies they couldn’t tell their customers how Obamacare would impact them, we all should have pulled the alarm.

And as soon as we realized that Left-wing groups were manufacturing a public outcry for corporate disclosure at the SEC, we should have exposed it for what it was.

There might be some folks out there waiting for a hand-signed memo from President Obama to Lois Lerner to turn up. What I’m saying is that a coordinated campaign to use the levers of government to target conservatives and stifle speech has been in full swing and open view for years. It’s been carried out by the same people who say there’s nothing more to the DISCLOSE Act than transparency, and no more to other disclosure regulations than good government.

But the IRS scandal puts the lie to all this posturing.

Because now we know what happens when government gets its hands on this kind of information, when it’s able to isolate its opponents. And whether you’re a pro-Israel group, or a Tea Party organization in Louisville, they can make your life miserable. Even worse for democracy, they can force you off the political playing field …which is really what they want, and precisely what we cannot allow. There are a lot of important questions that remain to be answered about the IRS scandal. But let’s not lose sight of the larger scandal that’s been right in front of us for five years: a sitting president who simply refuses to accept the fact that the public isn’t going to applaud everything he does.

So my plea to you today is that you call out these attacks on the First Amendment whenever you see them, regardless of the target. Because the right to free speech doesn’t exist to protect what’s popular. It exists to protect what’s unpopular. And the moment we forget that is the moment we’re all at risk. If liberals can’t compete on a level playing field, they should think up better arguments. But until they do, we need to be vigilant, and fight every assault on the First Amendment with everything we’ve got.
The only way to beat a bully is to fight back. So be wise to the ways of the Left, and never give an inch when it comes to free speech.

Sen. Mitch McConnell, Kentucky Republican, is minority leader of the Senate.