As the NRA explained in its Supreme Court brief in McConnell,
the congressional supporters of the speech ban "well understood
that requiring the NRA to speak through its PAC will necessarily
reduce the collective voice of its 4 million members to a whisper.
A battery of regulatory and practical hurdles precludes groups such
as the NRA from using their PACs to make independent expenditures
commensurate with public support for their political ideas. The
NRA`s PAC, the PVF, is strictly barred from soliciting beyond the
NRA`s membership for contributions, and no portion of an NRA
member`s membership fees may be allocated to PVF."
The amount that the NRA could spend on the elections, via the
Political Victory Fund, was only about 6 percent as much as total
annual contributions to the NRA. Judge Karen LeCraft Henderson
explained, "The disparity stems from the inability of NRA
members-most of whom are individuals of modest means-to pay the
NRA`s membership fee and then contribute beyond that amount to
NRA-PVF." (Judge Henderson of the D.C. Circuit Court of Appeals was
writing in the McConnell case, before it reached the Supreme
So as the NRA told the Supreme Court, the law "effectively
deprives millions of ordinary individuals of their ability to join
collectively in making `electioneering communications` to support
and preserve their freedoms under the Second Amendment."
The censorship law also meant that the NRA website, including
the blogs hosted there, were legally forbidden from expressly
advocating the election or defeat of a federal candidate.
The law made it illegal for the NRA itself to mention the name
of a federal candidate in some public communications 60 days before
the general election, or 30 days before a primary. The ban not only
prevented election communications, it also prevented many other
necessary communications. As the NRA`s amicus brief in McConnell
"An issue advocacy organization typically names federal
officeholders and candidates for innumerable reasons, ranging from
the need to educate the public about threats to the groups`
beliefs, to defending itself against direct attacks launched by the
politicians themselves. ... And, as Judge Henderson found, when the
NRA`s speech is properly taken into account, more than a third of
the broadcasts that Title 2 [part of the 2002 law] would have
criminalized in the 2000 cycle were genuine issue ads unrelated to
a federal election."
The McConnell challenge was defeated 5-4, but it laid the
foundation for the later victory in Citizens United. First
of all, the McConnell case laid out the full factual record about
the law-including the deliberate intention to shut down voices that
dared to criticize congressional incumbents. In the Citizens
United case, the Supreme Court was able to use the detailed
factual record-over 100,000 pages long-from McConnell, rather than
having to send the case back to trial court for fact finding, a
process that would have left the censorship laws in effect for the
Second, McConnell left open the possibility for further
challenges to campaign laws, based on a particular speaker`s
situation. Some of these challenges were successful, and provided a
little more breathing room for free speech.
Then came Citizens United. During the 2008 primary
elections, the advocacy group Citizens United wanted to
pay for the cable television airing of a documentary it had
produced about Sen. Hillary Clinton. The Federal Election
Commission refused to allow the documentary, which was very
critical of Clinton, to be shown on television.
Anti-gun members of Congress proudly announced the law`s
objective of censoring the NRA. Illinois Rep. Jan Schakowsky
promised that the new law would help pass gun control, because the
speech restrictions would mean, "the NRA does not call
all the shots."
Long after the primaries were over, the Supreme Court was hearing
the Citizens United case in March 2009. The narrow issue
was whether distributing a movie via on-demand cable television
counted as a "broadcast" under the law. But at oral argument, the
Obama administration made a startling argument: under the law, the
federal government had the authority to prohibit corporate or union
pre-election speech in any media-including in published books.
As matter of statutory interpretation, the Obama administration
was correct. The law did indeed allow for unlimited censorship.
The argument highlighted what the NRA had been saying all along:
The 2002 law was a bait and switch. Promoted as a tool to reduce
negative television commercials, it was by far the worst, most
extensive federal censorship law in American history. It was
becoming clear that Americans could have a strong First Amendment,
or they could have the 2002 speech ban, but they could not have
So the Supreme Court scheduled a September 2009 re-argument on a
broader question: should the Supreme Court overrule the 1990 case
of Austin v. Michigan Chamber of Commerce and part of the 2003
McConnell case? It was these cases that said the speech of
corporations and unions could be subject to special censorship
Once again, the NRA participated in the case, filing an amicus
brief that urged that the censorship law be struck down.
Finally, in January 2010, the Supreme Court ruled in
Citizens United and tore the heart out of the 2002 law:
Corporations and unions may not be subjected to special speech
restrictions during campaigns. LaPierre called Citizens
United "a validation of everything the NRA has fought
Simply put, if John Kerry had won the 2004 election-and he would
have won if not for all the hard work of NRA activists-he almost
certainly would have appointed Supreme Court justices who would
have turned Citizens United into a 6-3 win for censorship,
instead of a 5-4 win for the First Amendment.
Because of the NRA, the following words from Justice Kennedy
came in the majority opinion, rather than in the dissent:
"If the First Amendment has any force, it prohibits Congress
from fining or jailing citizens, or associations of citizens, for
simply engaging in political speech." So, "when government seeks to
use its full power, including the criminal law, to command where a
person may get his or her information or what distrusted source he
or she may not hear, it uses censorship to control thought. This is
unlawful. The First Amendment confirms the freedom to think for
Justice Kennedy explained that to suppress speech during an
election is to deny the people their sovereign rights:
"Under our Constitution it is We The People who are sovereign.
The people have the final say. The legislators are their spokesmen.
The people determine through their votes the destiny of the nation.
It is therefore important-vitally important-that all channels of
communications be open to them during every election, that no point
of view be restrained or barred, and that the people have access to
the views of every group in the community."
The rationale for the law was that certain speakers, such as the
NRA, were too powerful, and so they should be suppressed. Yet the
NRA is powerful only because millions of Americans choose to join
it-and because millions more have learned that the NRA is a
credible, accurate source of information about civil rights during
The Supreme Court acknowledged that back in 1791, there were
relatively few business corporations. Of course, there were no
civil rights corporations like the NRA, which was founded in 1871.
However, explained the court, "The Framers may have been unaware of
certain types of speakers or forms of communication, but that does
not mean that those speakers and media are entitled to less First
Amendment protection than those types of speakers and media that
provided the means of communicating political ideas when the Bill
of Rights was adopted."
According to LaPierre, "The case represents a huge retaking of
freedom by gun owners of this country who were told by elites that
the media had a greater level of access to First Amendment rights
than the NRA and individual NRA members. Citizens United
is a major victory for members who, over the years, have written
checks both large and small, and a confirmation that those checks
were used to protect our important rights."
LaPierre had a further message for NRA members.
"With your contributions, with your loyalty and years of
commitment to the NRA and the Second Amendment, this is what
happens when free people fight back against a government bent on
taking away rights," he said. "Together, eventually we win a whole
lot more than we lose."
He pointed to the great progress of the Second Amendment in the
past quarter century.
"In the early 1980s, law-abiding gun owners had a lot more
vulnerability than they have today," LaPierre said. "Through all
the major victories NRA members have won over the
years-Volkmer-McClure, the Right-to-Carry revolution, the spread of
the Castle Doctrine, the Heller decision, and so on-the
Second Amendment becomes more and more of a freedom for everyone.
The Supreme Court striking down the speech ban is a very strong
articulation of that."
It`s no surprise, however, that anti-gun politicians decried the
Supreme Court`s decision. Sen. Charles Schumer, D-N.Y., called
Citizens United "poisonous to our democracy"-as if
democracy somehow worked better with censorship.
The "mainstream" media is wailing that big business corporations
will dominate politics. In reality, though, big business influence
in politics was no greater before the 2002 law than after.
Certainly Wall Street had no problems in 2008 pouring many millions
of dollars into the Obama war chest-and then enjoying hundreds of
billions of dollars in federal bailouts.
In truth, 96 percent of business corporations are small
businesses. While the Fortune 500 companies have the manpower
resources to process all the complicated paperwork to run a
political action committee, the 2002 law actually silenced the
voices of the neighborhood auto repair shop and the family grocery
Ted Olson, former U.S. solicitor general, served as counsel to
Citizens United. He explained to The Wall Street Journal
that the Supreme Court decision now means that ordinary individuals
can "band together to counterbalance the political speech of the
super-rich." For example, your contributions to the NRA can now be
used to counterbalance the George Soros propaganda machine.
For his part, President Barack Obama took the unprecedented step
of using his State of the Union speech to denounce the Supreme
Court justices who were sitting in front of him, incorrectly
claiming that Citizens United had overruled a century of
precedent. Actually, the oldest precedent overruled in Citizens
United was the 1990 Austin case. Citizens United has
no effect on current restrictions on corporate donations to
political candidates; the case simply restores the right of groups
like the NRA to spend their own money communicating their own
Already, the Obama machine and its congressional allies are
looking for ways to circumvent Citizens United.
Anti-gun Sen. John Kerry, D-Mass., House Judiciary Committee
Chairman John Conyers Jr., D-Mich., and Rep. Donna Edwards, D-Md.,
are working on a constitutional amendment that would strip
corporations, including the NRA, of First Amendment rights. Harvard
Professor Larry Tribe proposes a law allowing states to prohibit
out-of-state corporations from spending money on election
communications. This would mean that the NRA, whose corporate
charter is from New York, would be censored in the other 49
And according to Washington Post columnist David Broder, a
Schumer aide says the senator is looking at a ban on speech by all
corporations that have Washington lobbyists-a category that
certainly includes the NRA.
The enemies of our First and Second Amendment rights are not
giving up, so the NRA cannot give up either. But for now, we can
savor a tremendous victory for our First Amendment rights, a
victory for which much of the credit belongs to those loyal
defenders of our Constitution-the members of the National Rifle
Association of America.