June 22, 2012

Mitch McConnell is the Republican leader in the Senate.

Last week, in the face of alarming harassment and intimidation of Americans actively engaged in the political process, I spoke out on the need for those on the right and the left to oppose these tactics.

My main target was the Obama administration’s attempts to single out its critics through federal agencies such as the Federal Communications Commission, the Internal Revenue Service, the Securities and Exchange Commission, and the Department of Health and Human Services, and even through a proposed executive order aimed at denying critics government contracts.

The leader of one tea party group in Kentucky has said that organizations like it “either drown . . . in unnecessary paperwork . . . or you survive and give them everything they want, only to be hung.”

My central point was that such tactics may be legal in most cases, but it is something else for the government to employ them. No American should face harassment by his or her government simply because that government doesn’t agree with the causes he or she supports.

Unfortunately, many journalists have been less concerned about a president using his powers to silence critics than in drawing false inferences about the motives of those blowing the whistle. Shortly after my speech, I was accused of changing my views on the First Amendment.

Post columnist Ruth Marcus went back to 1987, to my introduction of a constitutional amendment to allow limits on self-funding millionaires as evidence of my supposed hypocrisy. Just as I came to believe I had made an early mistake on the constitutionality of flag burning, I recognized I was wrong on this issue. Nine months after proposing it, I testified publicly against my own amendment. Not only have I voted against this idea every time it’s come up, but I have also led the opposition.

The main charge against me, leveled on this page by The Post’s Fred Hiatt, relates to disclosure. My central point last week — one that I have raised for more than three decades — is that if government-compelled disclosure is forced upon some but not all, it’s not an act of good government but a political weapon.

Proponents of the so-called Disclose Act would have us believe that the only groups they’re after are those engaged in causes associated with the right. Yet their efforts would also capture such groups as the Humane Society, Immigration Equality and the Environmental Defense Fund. Presumably these groups don’t want people snooping through their donor lists any more than Americans for Prosperity does.

After all, if a liberal government can go after tea partyers, what’s to keep a future conservative government from harassing donors to liberal causes?

Proponents of the Disclose Act often fail to mention that the Supreme Court has spoken on this issue. In the 1958 case NAACP v. Alabama, the court ruled that forced disclosure of the NAACP’s member lists by the state of Alabama violated the Constitution, as it would discourage people from freely associating with a cause or group. This is also why the Federal Election Commission has exempted a political party — the Socialist Workers Party — from disclosing its supporters since 1979.

Throughout my career I have opposed efforts to constrain speech, even when it would have benefited me not to. Opposing a constitutional amendment to ban flag burning wasn’t just difficult for the son of a World War II veteran — it also didn’t win me many votes in Kentucky. And in my last election, I loudly defended my self-funding multimillionaire opponent’s right to spend as much of his money as he wanted — against me.

Some, including Hiatt, have pointed to a 12-year-old quote in which I expressed support for disclosure not just for politicians and parties but maybe even for certain outside groups. This supposedly proved that I now oppose disclosure measures I used to support. Omitted was the rest of the quote — in which I raised the same issue addressed in NAACP v. Alabama and conditioned my support for disclosure on its not being selective.

Eleven days after that interview, I backed up these statements with a vote against forced disclosure by outside groups, including those that support candidates and campaigns. My position has not changed on this.

As for Hiatt’s point that these groups are free to open separate election accounts while continuing to shield the names of their regular donors, this would simply put a bigger bull’s-eye on the back of anyone who contributes. Moreover, requiring groups to bear administrative burdens associated with such an account would be yet another barrier to their right to speak.

My concern remains what it was in 2000: Selective disclosure would be used to harass people who have participated in the political process or to scare others from doing so. Then, I feared that a government could use this information against people, just as President Richard Nixon did. I did not know that a decade later another administration would validate those concerns and that a free press would do so little to hold it accountable.

The First Amendment allows all of us to have a place in the national debate. There can be no retreat from its defense.

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