U.S. Senate Republican Leader Mitch McConnell made the following remarks on the Senate floor Tuesday regarding free speech in the health care debate:

“I rise to call my colleagues’ attention to a disturbing development in the health care debate.

“A colleague of ours has called for an investigation into a major health care company because this company informed its customers of its concerns about health care legislation that this colleague of ours introduced.

“As a result, the federal government has now told all companies that provide Medicare Advantage to seniors to stop communicating with their clients about the effects of that legislation — even telling them what they can and cannot post on their websites. This gag order, enforced through an agency of the federal government at the request of a Senator, is wrong.

“It started when a company based in my hometown of Louisville — Humana — had the temerity, in the eyes of some of our colleagues, to explain to its customers that if Medicare Advantage is cut, as the chairman’s mark requires, it may have to reduce benefits, which, of course, is a common sense conclusion.

“Mr. President, this is America: Citizens, either as individuals or grouped together in companies, have a fundamental right to talk about legislation they favor or oppose. That is the core of the First Amendment’s protections on speech. Unfortunately, this is part of a troubling trend of efforts to dismiss the concerns raised by the American people over the past few months.

“Over the summer, we saw American citizens who raised concerns about the health care proposals before Congress dismissed as ‘un-American’ by leaders in Congress. That’s bad enough, but using the full weight of the federal government’s enforcement powers to stifle free speech should trouble all Americans — and all of us — even more.

“We cannot allow government officials to target individuals or companies because they do not like what they have to say.

“This latest effort to squelch free speech raises several serious questions:

“Is this what we have come to as a country — that an individual or company can no longer factually advocate their position on an incredibly important public policy issue?

“Shouldn’t customers have a right to know the potential impact of a Congressional action?

“Is this what we believe as a Senate — that this body should debate a trillion-dollar health care bill that affects every American while using the powerful arm of government to shut down speech?

“Is this how citizens and companies can expect to be treated if health reform passes? That any health provider that disagrees with a powerful Senator will be subject to an investigation and a gag order?

“How is this any different than what the Washington Post and New York Times have done in lobbying for a reporter shield law? Would we stand by if the Judiciary Committee asked the FBI to investigate the media for taking positions on pending legislation we don’t agree with? Of course not.

“Humana is headquartered in my hometown of Louisville, and yes, I care deeply about its 8,000 employees in Kentucky. But this gag order now applies to all Medicare Advantage providers.

“I would remind my colleagues that I have spent my career defending the First Amendment rights of people to criticize their elected officials, including me. I would make the same argument if this were a company based in San Francisco or Helena or Chicago.

“The right to free speech is at the core of our democracy. Free citizens have a First Amendment right to petition their government for a redress of grievances. This gag order on companies like Humana and those in all our states, in my view, is a clear violation of that right. It’s wrong.

“Employers that warn their customers about the effects of legislation aren’t the ones who should be getting warnings here. Senators who threaten Americans’ First Amendment rights are.”

Today, the prevailing view seems to be that Congress can do anything we want to do, any time, and in any way. There are always problems to solve, good ideas to implement, money to spend, activities to regulate, agendas to pursue, or constituencies to please. But those are merely the ends and, in our system of government at least, the ends cannot not justify the means. Not if we truly value our liberty. Our liberty requires that government be limited, that government’s actions have legal authority, ultimately rooted in the Constitution itself.

The Constitution, for example, does not grant Congress all legislative authority. Article I gives Congress only “legislative powers herein granted.” Those powers are listed, or enumerated, in Article I, Section 8. The Tenth Amendment affirms that the federal government has only powers that are affirmatively delegated to it. James Madison explained in The Federalist No.45 that these powers delegated to the federal government are “few and defined.” Why all this emphasis on definition and limitation, especially of the federal government? Because individual liberty requires limited government.

In The Federalist No.51, Madison wrote that “if men were angels, no government would be necessary.” In other words, some government is necessary to have any liberty at all. But Madison went right on to write that “if angels were to govern men, neither external nor internal controls on government would be necessary.” In other words, unlimited government makes liberty impossible. The truth is that men are not angels and angels do not govern men. Acknowledging that truth, America’s founders in their genius created a system of limited government to maximize ordered liberty.

I realize that such notions as definition and limitation are not in fashion today. Many today think these ideas passé, antiquated, or (and this is my personal favorite) archaic. Limited government is fine when we have no major problems to solve, when there are no big crises looming large. But today we face the worst economic crisis since the Great Depression and many Americans want government to be robust and full-throttled. We want government to come to the rescue, to set things right, to make everything OK. I realize that today saying NO is not popular, whether for individuals or for the government.

So we have to make the same basic, fundamental choice that America’s founders did. How much do we prize liberty? The laws of human nature and, therefore, of government have not changed. Men have not become angels and angels do not govern men. That condition will never exist. Ordered liberty will always require limited government and so we must repeatedly ask whether, and how much, we prize liberty.

This bill embodies these principles by requiring that each of act Congress state its constitutional authority. In other words, each act of Congress must state the very condition that indicates it is consistent with limited government. Congress has no authority to act, Congress has no authority to exist at all, unless that authority is derived from the Constitution. It is no less important than that. So this bill would require that each act of Congress state the one condition that is necessary for that act of Congress to be legitimate – authority derived from the Constitution.

That statement alone would be important, but purely symbolic. Virtually everyone could ignore it. So this bill would create a mechanism for challenging and even debating whether an act of Congress is indeed authorized by the Constitution. It does not require such a debate for every act of Congress, but provides for a point of order that can result in such a debate. That debate would focus everyone’s attention on the absolutely necessary connection between Congress’ actions and the Constitution and, ultimately, on the Constitution itself.

In the landmark case of Marbury v. Madison, Chief Justice John Marshall wrote that “[t]he powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” A written Constitution that delegates enumerated powers to Congress is central to limited government and, therefore, central to our liberty. If we prize liberty, we must prize limitations on government. Chief Justice Marshall later wrote in McCulloch v. Maryland that “this government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it…is now universally admitted.”

That was then. How about today? Do we still believe that ordered liberty requires limited government? Do we still believe that Congress may only do what the Constitution authorizes us to do? Or do we believe that Congress needs no more than a good idea powered by a good intention? Are the principles embraced by Madison, by Marshall, still universally admitted today? If so, then this bill is an important way to prove it. On this Constitution Day, I urge my colleagues once again to embrace those principles of limited government and to demonstrate it by supporting this bill. Policy ideas and political positions shape our legislative activity, the Constitution should do so as well. I applaud my colleague from Oklahoma, Senator Coburn, for introducing this bill and offering this opportunity to raise these principles closer to the position of importance they deserve.