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.”