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5:32 pm CST - June 18, 2010

Posted under On The Record

Fatal, Cynical Flaws Shown in NRA’s ‘Campaign Disclosure’ Bill Exemption

By Cleta Mitchell

The cynical decision this week by House Democrats to exempt the National Rifle Association from the latest campaign finance regulatory scheme is itself a public disclosure. It reveals the true purpose of the perversely named Disclose Act (H.R. 5175): namely, to silence congressional critics in the 2010 elections.  

The NRA “carve-out” reaffirms the wisdom of the First Amendment’s precise language: “Congress shall make no law . . . abridging the freedom of speech.”

Congress can’t help itself. Since 1798, with the Alien and Sedition Acts, incumbent politicians have yearned for legal duct tape for their opponents’ mouths. The Disclose Act is a doozy of a muzzle.

For its part, the NRA — on whose board of directors I serve — rather than holding steadfastly to its historic principles of defending the Constitution and continuing its noble fight against government regulation of political speech instead opted for a political deal borne of self-interest in exchange for “neutrality” from the legislation’s requirements.

In doing so, the NRA has, sadly, affirmed the notion held by congressional Democrats (and some Republicans), liberal activists, the media establishment and, at least for now, a minority on the Supreme Court that First Amendment protections are subject to negotiation.

The Second Amendment surely cannot be far behind.

 Since the court’s January decision in Citizens United v. Federal Election Commission that corporations cannot be constitutionally prohibited from making independent candidate-related expenditures, Democrats have been hyperventilating at the notion that corporations might spend millions of dollars criticizing them.

To foreclose that possibility, the Disclose Act would impose onerous and complicated “disclosure” restrictions on organizations that dare to engage in constitutionally protected political speech and on corporations that dare to contribute to such organizations.

Democrats would effectively neuter the court’s decision by requiring the names of multiple donors to be recited in ads (thus shrinking the time spent on actual speech), requiring the CEO of a corporate donor to personally appear in campaign-related ads, expanding the coverage period to virtually the entire election year, and including myriad other rules that the NRA described last month as “byzantine” and an “arbitrary patchwork of reporting and disclosure requirements.

The NRA’s wheel-squeaking bought it an exemption from those requirements. Tea Party organizations arising spontaneously since 2009? Out of luck. Online organizations with large e-mail followings but perhaps no formal dues structure?

Forget it.

Receiving less attention than the NRA “carve-out” but no less cynical is the bill’s sop to organized labor: Aggregate contributions of $600 or more would be disclosed. Why start at $600? Why not $200 or, say, $500? Because most union members’ dues aggregate less than $600 in a calendar year and thus members’ contributions to labor’s campaign-related spending wouldn’t need to be disclosed … even to the union members whose dues are spent for political purposes.

In Citizens United, the court held that the First Amendment doesn’t permit Congress to treat different corporations differently; that the protections afforded political speech arise from the Constitution, not Congress. Otherwise, it would be tantamount to a congressional power to license the speech of some while denying it to others.

The NRA carve-out is a clear example of a congressional speech license.

The ostensible purpose of the legislation is benign “disclosure,” upheld in Citizens United as permissible under the First Amendment. Even conservative Justice Antonin Scalia has expressed skepticism about the constitutional infirmity of disclosure requirements in another case argued this term; Scalia intoned in oral argument that “running a democracy takes a certain amount of civic courage.”

That’s true.

Indeed, the law upheld in Citizens United requires all donors to candidate-related expenditures to be publicly disclosed to the FEC in a timely manner.

But the Disclose Act isn’t really intended to elicit information not currently required by law. The act serves notice on certain speakers that their involvement in the political process will exact a high price of regulation, penalty and notoriety, using disclosure and reporting as a subterfuge to chill their political speech and association.

It is only disclosure, say the authors. And box-cutters are only handy household tools . . . until they are used by terrorists to crash airplanes.

This is not just “disclosure.” It is a scheme hatched by political insiders to eradicate disfavored speech. There is no room under the First Amendment for Congress to make deals on political speech, whether with the NRA or anyone else.Cleta Mitchell is a partner at Foley & Lardner who works in campaign finance law and is a member of the NRA’s board of directors.

8 Comments

Bill A
9:12 pm CST
June 18, 2010

In his February 19, 1999 speech to the Harvard Law School Forum, Charlton Heston said,

“As I have stood in the crosshairs of those who target Second Amendment freedoms, I’ve realized that firearms are not the only issue. No, it’s much, much bigger than that. I’ve come to understand that a cultural war is raging across our land, in which, with Orwellian fervor, certain acceptable thoughts and speech are mandated.”

Today’s lesser lights in NRA leadership, with the possible exception of Cleta Mitchell, should listen.

Drifter
11:31 am CST
June 18, 2010

I’ve been a member for 40 years. NRA–hang your head in shame!

Radman
8:34 am CST
June 18, 2010

I, too, have been an NRA member for many years, and this deal smells very BAD. Bill A’s Charlton Heston quote is “on target” regarding the cultural war being waged by the Democrats against “We the People.” Bit-by-bit, they are attempting to consolidate power in the federal government and usurp and abrogate our basic Constitutional right to “speak out” in opposition (an essential aspect of any petition to our government for “redress of grievances”).

The founders of this nation pledged their fortunes and their sacred honor to establish, preserve and protect ALL of the inalienable rights endowed by our Creator. However, I think that in this case, the NRA has made a financial CYA “deal with the devil” while throwing a lot of folks directly “under the bus.” Based on a number of recent articles, it is clear that any others, both inside and outside the NRA, sincerely hope that enough pressure can be exerted to force the NRA leadership to reconsider their actions in this case.

Christian Archer
8:55 am CST
June 18, 2010

If the NRA and other similar groups like National Association for Gun Rights, are taken over by left-wingers, then where will this nation be? I would say that it would be ripe for revolution or a civil war. If the leftists keep pushing for their way and agenda, then they will be the blame should revolution or civil war occur. The fuse is lit and it is nearing the powder keg. If the lefties really love this nation, then they’d better back-off or neither them or us will enjoy it’s fruits.

Should there be a revolution or civil war, are there any countries in the world that would view the U.S. as vulnerable and become opportunists, thus conquering the U.S. for the first time? Would the leftists welcome foreign troops to help them in their march towards totalitarianism?

Sonny
10:30 am CST
June 18, 2010

These organizations that are making deals with the socialist President Obama are hurting themselves. First AARP and healthcare now NRA and free speech. This President seems to overcome all obstacles. November can’t come soon enough for me.

Texas Nomad
9:37 pm CST
June 18, 2010

http://www.nra.org has a piece on their homepage about this subject. Read it and then make up your own minds.

CLWebb
10:27 pm CST
June 18, 2010

Texas Nomad has some good advice, read the NRA article, sometimes the news can be warped.

LALee
10:51 am CST
June 18, 2010

It seems we have an article written by a disgruntled member of the board of directors. Perhaps she is not what the NRA needs. Cleta Mitchell will get a closer look thoughout the year to see if she needs my vote next election. This article >http://www.usatoday.com/news/politics/2010-06-21-campaign-spending-legislation_N.htm< makes it quite clear that this was not a "deal with the devil", but rather the devil trying to sweeten the pot to get the NRA to back the worthless bill.

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