Standing Guard: A Win For Free Speech
Tuesday, September 04, 2007
WAYNE LAPIERRE, NRA Executive Vice
A Win For Free
or all of us who have
worked so hard to reshape the federal judiciary, proof positive of
our success came this summer with a stunning turnaround by the U.S.
Supreme Court in support of First Amendment
With two new justices joining the 5-4
majority, the high court struck down as unconstitutional a Federal
Election Commission (FEC) pre-election ban on public policy
Federal Election Commission v. Wisconsin Right
to Life, Inc. (WRTL), penned by new Chief Justice John Roberts, was
a clear victory for freedom. NRA filed an amicus, or "friend of the
court," brief in support of WRTL's case. The decision will have a
major impact on NRA's ability to reach the American people with our
public policy messages about firearm rights. In summing up the
court's June 2007 ruling, Roberts wrote ". . . we give the benefit
of the doubt to speech, not censorship."
The decision will have a major impact on NRA's ability
to reach the American people with our public policy messages about
This new decision partially
reverses the prior court's abominable December 2003 McConnell v.
FEC decision. In that case, NRA and a diverse group of grassroots
organizations and unions were instrumental in challenging the
pre-election broadcast speech bans contained in the so-called
Bipartisan Campaign Reform Act of 2002 (BCRA). That valiant
constitutional challenge was led by U.S. Sen. Mitch McConnell,
But with the makeup of the court then,
that effort was to no avail.
That loss spurred our determination to
see court vacancies filled by jurists who believe in the
fundamental meaning of the U.S. Constitution. In that, we
succeeded. Chief Justice Roberts filled the seat vacated at the
death of William Rehnquist and Justice Samuel Alito replaced
retiring Justice Sandra Day O'Connor, who was the key jurist
swinging the former majority against the First Amendment in
McConnell v. FEC.
The banned Wisconsin Right to Life issue
ads at the heart of this new decision merely asked voters to
contact their senators and demand an end to filibusters of
President Bush's nominees for federal
That filibuster effort--led by gun-ban
U.S. Senators Charles Schumer, D-N.Y., and Ted Kennedy,
D-Mass.--was intended to kill up-or-down votes on all federal
judiciary candidates cut from the same cloth as the new justices
who made the difference in this
Ironically, the initial FEC ruling
against WRTL involved a claim that the target of what it deemed
"illegal" ads was U.S. Sen. Russell Feingold--co-author of
BCRA--who was running unopposed in a primary
In reviewing the WRTL decision, we would
have preferred that the court had thrown out as unconstitutional
the entire onerous "electioneering communication" section of BCRA.
But this ruling goes a long way toward protecting First Amendment
rights of grassroots incorporated entities like NRA. In essence, it
forbids federal regulators from banning broadcast issue advertising
that does not directly exhort voters to either support or oppose
candidates for federal office.
Before this decision, federal election
law made it a felony to use corporate funds (like your NRA dues) to
air a broadcast message that the speech-police at FEC could
construe as even remotely referring to a candidate for federal
office. That broadcast speech ban applied 30 days before a primary
election and 60 days before the general
When Congress enacted this oppressive
law, the National Rifle Association, as a grassroots corporation,
was singled out for censorship. Our highly acclaimed infomercials
were labeled "sham ads" and were targeted for broadcast speech
Without this new ruling, NRA's running
an educational broadcast alluding to any candidate for federal
office anywhere in the nation during the pre-election blackouts
could amount to a federal crime. A broadcast expressing NRA's
staunch opposition to a gun ban could be seen by FEC enforcers as
indirectly urging Americans to vote against a candidate favoring a
firearm ban--say, Hillary Clinton.
One remarkable aspect of FEC v.
Wisconsin Right to Life, Inc. is that three of the five justices
voting for the ruling felt the high court should have gone further
and ruled the entire "blackout" broadcast ban
Writing for Justices Clarence Thomas and
Anthony Kennedy, Justice Antonin Scalia said that the effect of
BCRA ". . . has been to undermine the traditional and important
role of grassroots advocacy in American politics . . .
Perhaps suggesting the nature of a
future challenge, Scalia said of the U.S. Supreme
". . . It is perhaps our most important
constitutional task to assure freedom of political speech. And when
a statute creates a regime as unworkable and unconstitutional . . .
it is our responsibility to decline
Even if it didn't go far enough, this
new decision demonstrates the dramatic change in the court and
illustrates how urgently important the 2008 elections are. There
will be Supreme Court vacancies in the near
We must work to assure that a true enemy
of the Second Amendment does not take the White House in those
coming watershed elections.
At stake is nothing less than who will
control future nominations to our entire federal court system from
top to bottom.