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...this new decision demonstrates the dramatic
change in the court...
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A Win For Free Speech
For 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 rights.
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 broadcast advertising.
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.”
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 (R-Ky.).
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 courts.
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 case.
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 election.
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 election.
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
bans.
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 unconstitutional.
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 Court:
“… 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 enforcement.”
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 future.
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. |