HH: Leader Mitch McConnell, thanks for sitting down with me. I appreciate it.
MM: Yeah, pleasure to be with you.
HH: Big news week, and obviously we have to begin with the trauma in New York, the worst
terrorist attack in America in New York since 9/11. Is it time to be talking about immigration
reform, or should we wait a while?
MM: Well, the president’s been talking about improving our vetting for some time, and you
know, you’ve got to look at a guy like this and say how did he, how did he get here in the first
place? And so I do think it’s worth taking a look at.
HH: In your office, there’s a picture of Henry Clay, the great Kentucky compromiser. Is there a
compromise to be had on, on immigration that will get us DACA, some border security, and
some additional vetting from people from suspect countries?
MM: Yeah, I think so. Yeah, the Democrats desperately want DACA. Republicans are not
necessarily opposed to that. The President has set it up in such a way that we have an incentive
to act here, because he’s given us six months to come up with a proposal. I think there ought to
be something related to making the American legal immigration system better, achieved along
with DACA. It could be border security. It could be ending chain migration. It could be the
diversity quotas. It, but something that tangibly improves the legal immigration system in this
country, I think, ought to be attached to DACA.
HH: This is also a week of indictments, and there are two views about Mr. Mueller. Some want
legislation to restrain his power and limit his reach. Others want legislation to keep him safe
from being fired. Do you think Congress has any role in legislating about the special counsel
MM: I don’t think so. I don’t hear much pressure to pass anything. There’s been no indication
that the President or the White House are not cooperating with the special counsel. I think the
view up here is let him do his job.
HH: And finally, we’ve got the tax bill that dropped on the day that we’re talking, and it’s got
some controversial provisions in it. There’s a $500,000 limit for new homes on mortgage
interest. The realtors are going to be coming after the bill. The state and local income tax
deduction is dead. Corporate tax is permanent. Is this going to make it through the Senate if it
makes it through the house?
MM: Well, we’ll have a companion bill that the finance committee will reveal a little bit later.
Comprehensive tax reform is always challenging because if you, if you achieve your goals, and
the goals here are middle class tax relief, plus changes in the business tax structure that make it
less likely your job goes overseas, that’s the core of the bill. In order to get those rates down,
both for individuals and for businesses, both corporations and what we call pass-throughs,
you’ve got to get rid of some of the preferences. But at the end of the day, nobody in the middle
class is going to get a tax increase, and we are committed to middle class tax relief and business
tax changes that keep our jobs here in America.
HH: Now your colleague, Tom Cotton, has floated raising revenue by getting rid of the
individual mandate from Obamacare. The President tweeted out this week he likes that idea.
Kevin Brady told me on my radio show that’s a non-starter, not going to happen. Will you allow
an amendment in regular order that raises the possibility of getting rid of the individual
MM: Well, the process we’re going to use here in the Senate is wide open for amendments, both
in, both in the finance committee and once it gets to the floor. So anybody who’s got a good
idea will be able to offer it.
HH: So are you going to get some Democrat votes on this, you think?
MM: You know, my guess is once we’ve demonstrated we have 50 votes and could pass it
without them, that we might get a few Democrats.
HH: I want to talk about Senate dysfunction. I spoke to the Speaker two weeks ago here, and he
held up a nice list of the hundreds of bills he’s sent over to you, and he complained that the
Senate didn’t get anything done. Same time, Steve Bannon’s hitting you with a sledgehammer.
And I keep thinking back to ’10 when we ran Christine O’Donnell and we ran Sharron Angle
and lost in ’12, when we, I’m a Republican, people know that, we ran Murdoch in Indiana and…
MM: Todd Aiken…
HH: …Todd Aiken and we lost. If you had those four votes, would Obamacare be repealed
MM: Yeah, and we’d, we’d have been in a majority a lot sooner. So what’s this really about, this
particular element that you’re referring to, specializes in losing elections. In 2010 and 2012, we
took a kind of passive view toward primaries. Some of these unelectable people were actually
nominated, and what they all have in common is they’re not in the Senate. So we intend to be
aggressively involved in primaries where it’s a choice between someone who can actually win,
help us maintain our majority and help us support the President’s agenda, and people who are
guaranteed to lose in November. So yeah, there’ll be some skirmishes, but in ’14 and ’16, we
decided the business model was flawed, and we needed to actually get involved in primaries on
behalf of candidates who could win in November, and we took the majority and we held it in
2016. And that’s the policy we’ll pursue in ’18.
HH: The Steve Bannon attacks, is there a personal vendetta involved here? Because I just don’t
get it. You got Neil Gorsuch on the Supreme Court. I’m quick to remind people that but for no
hearings, no votes, we would have lost the Supreme Court to a liberal majority for as long as
I’m going to be practicing law, which I hope is a couple more decades. Why does Steve Bannon
want Mitch McConnell to be his opponent in these things?
MM: I don’t know. You’d have to ask him. But I, look, this is about winning elections. And the
only way you make policy is you win elections. I always remind people the people that lose go
into another line of work. The people that win come here and make policy. So that’s what this
is about. And also the whining about the Senate, The Senate’s in the personnel business. The
House is not. There were 1,200 executive branch appointments subject to confirmation in the
Senate. I not only didn’t allow the Supreme Court vacancy to be filled during the last year of
Barack Obama, I also didn’t allow a lot of other federal judgeships to be filled. So when
President Trump got elected, and we held our majority, we had the largest number of federal
judicial vacancies to be filled since the early 1950s. And the President is sending up spectacular
nominees. Barack Obama only had 60 Democrats in the Senate, got three circuit judges in his
first year. We did four the week you and I are talking. We had already done four. That’s eight.
And we’ll do more before the end of the year. In conjunction with the President and his
spectacular White House counsel, Don McGahn, we are making permanent, long lasting
changes to the federal judiciary.
HH: Now judges float my boat. You’re probably not going to find another interlocutor who
wants to go so deep into the weeds, so pardon me for going deep into the weeds. I’m of the
opinion if we lose the majority, we being Republicans, that Democrats will not confirm one
judge for the next two years as payback.
MM: You’re right.
HH: Am I correct?
HH: And they, that will not be legitimate, but they will go there if we lose the majority. So the
people who are running…
MM: That’s right.
HH: …kamikaze candidates have to realize they’re giving up the federal judiciary and Supreme
HH: And so these 21 federal circuit vacancies that were inherited are almost as important as the
Supreme Court. Are you satisfied that the White House is moving fast enough, because while
there are 21 vacancies, there have only been 14 nominees, only 11 with their paperwork done.
You confirmed eight. You’ll get the other three done. But we still got another ten nominees to
come up to you.
MM: Yeah, I am convinced they’re moving fast enough. It takes a while to do the vetting and to
get them in the pipeline. And now the pipeline is beginning to fill up. And we’re not going to be
a bottleneck up here in the Senate. As you’ve noticed, as soon as the circuit judge comes out of
committee, I call them up. I’m in charge of the schedule. I’ve got to choose what to bring up.
Confirmation of circuit court judges is my top priority. As they come out of the committee, they
will be called up.
HH: The blue slip, I’ve written about in The Washington Post.
HH: And I’ve heard you say in the Rose Garden that you do not approve of the blue slip, but
other senators had different points of view. Why do you personally oppose the blue slip?
MM: Yeah, my, let’s talk about circuit judges.
HH: Yeah, that’s why, it’s limited to that.
MM: Yeah. I think the blue slip for circuit court judges ought to be simply a notification of how
you’re going to vote. Now, it’s been honored in the breach for 100 years. Sometimes it’s been an,
treated as a veto. Sometimes it isn’t. For your viewers here, the blue slip is if somebody’s
nominated from your state, you’ve got this blue slip from the judiciary committee to say
whether you approve or disapprove. At the district court level I’m perfectly content with
senators, regardless of party, still having considerable sway. But at the circuit court level, this
administration and every other administration I can remember of both parties have felt it’s a
presidential prerogative. And had we decided to allow the blue slip for circuit judges to be a
veto, here’s the situation, Hugh. Forty-eight Democrats would have been able to veto 62% of the
circuit court vacancies. That ain’t going to happen.
HH: Let’s go back to your predecessors, leader Harry Reid. He did a lot of damage to the
institution, especially when he packed the D.C. circuit. Is there a chance that after a year and
after some equity and after some circuit appointments that Leader McConnell and Leader
Schumer can sit down and put Humpty Dumpty back together again and restore judicial
confirmations to the pre-Bork era when it all started to go to hell?
MM: Probably not. Yeah. I think both sides think that particularly circuit and Supreme Court
are hugely important. And– I think there’s a good chance that this will continue to be treated as
an important matter. As a lawyer and a student of history, you recall that there have been
various points in our history in which Supreme Court nominees are just waived through.
MM: But this is a period of senatorial assertiveness, and I think you could anticipate it being
practiced on both sides. But the Democrats, I’m sure, regret their decision to lower the threshold
in 2013 to 51. That’s what makes it possible for my 52 Republicans to confirm all of these
judges. And so they are reaping what they sowed, and we intend to make long-lasting change
in the federal judiciary that will affect future generations of America far into the future.
HH: If you keep that Senate majority for eight years, the federal judiciary will be safe and
secure in originalist hands for 50. But you’ve got to keep it for eight.
MM: We do.
HH: Do you think you can do that?
MM: Well, right now we’re concentrated on keeping it for four.
MM: You know, 2018 would mean we’d have a majority through the first Trump
administration. The Trump administration’s done a terrific job of picking sharp, young, for
example, this very week you and I are talking– you know, the Democrats are always talking about a war on women?
MM: Three of the four circuit court judges that we’re confirming this week…
HH: Allison Eid, Joan Larson and Judge Barrett, now-Judge Barrett, yeah.
MM: Women. Women. And outstanding and young and who believe, yeah, I had Justice
Gorsuch in my state last month, and here’s the way he put it. Judges don’t wear red. They don’t
wear blue. They wear black. Justice Scalia always said if, you’re not a very good judge if you’re
not uncomfortable from time to time with the outcome you reach, because it’s dictated by the
law you’re supposed to apply. These are the kinds of people that we are putting on the circuit
HH: I want to wrap up, Senator McConnell, by talking about big tech. And I’ve talked to the
Speaker about it and the Leader about it. And they got banged up in the Senate this week by
Tom Cotton on others. They did not send their CEOs to speak to the Senate. Are you
disappointed that Mark Zuckerberg and Jack Dorsey and others did not come to answer the
questions about how big Big Tech has become? How powerful? How manipulated they were?
That Twitter was offering Russian television 15% of their ad space, and they would not come to
answer the senators’ questions?
MM: Yeah, I think that’s not good. And I mean they ought to be more interested in cooperating
when you have a clear law enforcement issue, more interested in cooperating with law
enforcement than they have been. I’m a little skeptical of these disclosure-type proposals that
are floating around, which strikes me would mostly penalize American citizens trying to use the
internet and to advertise. What we ought to do we regard to the Russians is retaliate, seriously
retaliate against the Russians. And the, these tech firms could be helpful in having us, giving us
a way to do that.
HH: I am not in a hurry to regulate Big Tech, because I don’t think we know what we’re doing,
but I would like some serious minds to look at it, people like Leon Panetta and Stanley
McChrystal, Condoleezza Rice, Michele Flournoy.
HH: Would you support a 9/11 sort of commission that looks at the national security
implications, not the Russia attack, that’s Mr. Mueller’s job and he’s doing a good job, but the
broader issue of encryption and whether or not they are working with our national security…
MM: Yeah, I don’t know whether we need some special entity to do it or not. We have
committees here. We have people interested in doing this. It certainly would help if the CEOs
were willing to testify, but I think it’s a big, big subject with a lot of national security
implications, and a lot of First Amendment concerns as well. This isn’t, this is a tough area,
trying to figure out how to balance national security versus the First Amendment.
HH: That’s what I wanted to end up on. You are known for McConnell V. FEC when I teach my
Con Law students in California. You’re Mr. First Amendment. But the national security
implications of these media companies does call into question whether or not there are national
security exemptions to the First Amendment. Do you think they should be cooperating with law
enforcement in the aftermath of a terror incident more than they are?
MM: Well, in any event, the First Amendment shouldn’t apply to foreigners.
HH: Well put.
MM: That’s an American protection. And so we need to be figuring out how to deal with these
foreign actors in some way that’s consistent with the national security that does not violate the
First Amendment rights of Americans.
HH: But who figures that out? Last question, Mr. Leader. I don’t think the FEC is ready for it. I
don’t think the…
HH: …FEC is right for it. I don’t think the anti-trust division is. I don’t know where the
regulation comes from, and I don’t want Congress to blunder in. What’s your advice?
MM: Well, I think we need to be careful here and not do the wrong thing, which is what we
frequently do when we try to regulate speech.
HH: Well said. Leader McConnell, thanks for the time.
MM: Thank you.
End of interview.