Criticism about the NRA and H.R. 5175 should take into account the original letter to Congress that resulted in their exemption from this proposed draconian law:

May 26, 2010

Dear Member of Congress:

I am writing to express the National Rifle Association’s strong concerns with H.R. 5175, the DISCLOSE Act, as well as our opposition to this bill in its current form. It is our sincere hope that these concerns will be addressed as this legislation is considered by the full House.

Earlier this year, in Citizens United v. FEC, the Supreme Court struck down the ban on certain political speech by nonprofit membership associations such as the NRA. In an attempt to characterize that ruling as something other than a vindication of the free speech and associational rights of millions of individual American citizens, H.R. 5175 attempts to reverse that decision.

Under the First Amendment, as recognized in a long line of Supreme Court cases, citizens have the right to speak and associate privately and anonymously. H.R. 5175, however, would require the NRA to turn our membership and donor lists over to the government and to disclose top donors on political advertisements. The bill would empower the Federal Election Commission to require the NRA to reveal private, internal discussions with our four million members about political communications. This unnecessary and burdensome requirement would leave it in the hands of government officials to make a determination about the type and amount of speech that would trigger potential criminal penalties.

H.R. 5175 creates a series of byzantine disclosure requirements that have the obvious effect of intimidating speech. The bill, for example, requires “top-five funder” disclosures on TV ads that mention candidates for federal office from 90 days prior to a primary election through the general election; “top-two funder” disclosure on similar radio ads during that period; “significant funder” and “top-five funder” disclosures on similar mass mailings during that period; and “significant funder” disclosure for similar “robocalls” during that period. Internet communications are covered if placed for a fee on another website, such as the use of banner ads that mention candidates for federal office. Even worse, no exceptions are included for organizations communicating with their members. This is far worse than current law and would severely restrict the various ways that the NRA communicates with our members and like-minded individuals.

While there are some groups that have run ads and attempted to hide their identities, the NRA isn’t one of them. The NRA has been in existence since 1871. Our four million members across the country contribute for the purpose of speaking during elections and participating in the political process. When the NRA runs ads, we clearly and proudly put our name on them. Indeed, that’s what our members expect us to do. There is no reason to include the NRA in overly burdensome disclosure and reporting requirements that are supposedly aimed at so-called “shadow” groups.

On the issue of reporting requirements, the bill mandates that the NRA electronically file all reports with the FEC within 24 hours of each expenditure. Within 24 hours of FEC posting of the reports, the NRA would be required to put a hyperlink on our website to the exact page on which the reports appear on the FEC’s website – and keep that link: active for at least one year following the date of the general election. Independent Expenditure reports would have to disclose all individuals who donate $600 or more to the NRA during the reporting period and Electioneering Communication reports would have to disclose all individuals who donate $1,000 or more to the NRA during the reporting period. There are literally thousands of NRA donors who would meet those thresholds, so these requirements would create a significant and unwarranted burden.

Some have argued that under the bill, all the NRA would have to do to avoid disclosing our $600 or $1,000 level donors is to create a “Campaign-Related Activity Account.” Were we to set up such an account, however, we would be precluded from transferring more than $10,000 from our general treasury to the account; all individual donors to that account would have to specifically designate their contributions in that manner and would have to limit their contributions to $9,999; the burdensome disclosure requirements for ads, mailings and robocalls would still apply; and the NRA would be prohibited from spending money on election activity from any other source – including the NRA’s Political Victory Fund (our PAC). In sum, this provision is completely unworkable.

Unfortunately, H.R. 5175 attacks nearly all of the NRA’s political speech by creating an arbitrary patchwork of unprecedented reporting and disclosure requirements. Under the bill, the NRA would have to track the political priorities of each of our individual members – all four million of them. The cost of complying with these requirements would be immense and significantly restrict our ability to speak.

As noted above, there is no legitimate reason to include the NRA in H.R. 5175’s overly burdensome disclosure and reporting requirements. Therefore, we will continue to work with members from both parties to address these issues. Should our concerns not be resolved – and to date, they have not been – the NRA will have no choice but to oppose passage of this legislation.

Sincerely,

Chris W. Cox
Executive Director

There may be more to base the criticism on but I haven’t seen it. I’m not sure what critics would have them do when congress came back to them and said, “Never mind then, the law will never affect you guys.” Should the NRA have said, in effect, “We don’t care if it doesn’t affect our organization! We are going to fight this because it wouldn’t be fair to the Brady Campaign, the VPC, and others who aren’t as big as we are.”

Yes, their principles have a basis in the Bill of Rights. But they have a higher, sometimes, conflicting principle to look after the health of their organization and the rights of their members to keep and bear arms. And it is hard to see why dropping their opposition to the proposed law, as distasteful as it is, hurts the specific enumerated right they have pledged to defend.

Here is what the NRA is going to be sending to their members on the topic:

We appreciate some NRA members’ concerns about our position on H.R. 5175, the “DISCLOSE Act.” Unfortunately, critics of our position have misstated or misunderstood the facts.

We have never said we would support any version of this bill. To the contrary, we clearly stated NRA’s strong opposition to the DISCLOSE Act (as introduced) in a letter sent to Members of Congress on May 26.

Through the courts and in Congress, the NRA has consistently and strongly opposed any effort to restrict the rights of our four million members to speak and have their voices heard on behalf of gun owners nationwide. The initial version of H.R. 5175 would effectively have put a gag order on the NRA during elections and threatened our members’ freedom of association, by forcing us to turn our donor lists over to the federal government. We would also have been forced to list our top donors on all election-related television, radio and Internet ads and mailings—even mailings to our own members. We refuse to let this Congress impose those unconstitutional restrictions on our Association.

The NRA provides critical firearms training for our Armed Forces and law enforcement throughout the country. This bill would force us to choose between training our men and women in uniform and exercising our right to free political speech. We refuse to let this Congress force us to make that choice.

We didn’t “sell out” to Nancy Pelosi or anyone else. We told Congress we opposed the bill. As a result, congressional leaders made a commitment to exempt us from its draconian restrictions on free speech. If that commitment is honored, we will not be involved in the final House debate. If that commitment is not fully honored, we will strongly oppose the bill.

Our position is based on principle and experience. During consideration of the previous campaign finance legislation passed in 2002, congressional leadership repeatedly refused to exempt the NRA from its provisions, promising that our concerns would be fixed somewhere down the line. That didn’t happen; instead, the NRA had to live under those restrictions for seven years and spend millions of dollars on compliance costs and on legal fees to challenge the law. We will not go down that road again when we have an opportunity to protect our ability to speak.

There are those who say the NRA has a greater duty to principle than to gun rights. It’s easy to say we should put the Second Amendment at risk over some so-called First Amendment principle – unless you have a sworn duty to protect the Second Amendment above all else, as we do.

The NRA is a bipartisan, single-issue organization made up of millions of individual members dedicated to the protection of the Second Amendment. We do not represent the interests of other organizations. That’s their responsibility. Our responsibility is to protect and defend the interests of our members. And that we do without apology.

Update: I have not been explaining my thought processes as well as I should have been. Let me try again:

I am vehemently opposed to the proposed legislation. IMHO the sponsors of the bill should be tried for treason and consideration of all possible punishments should be given serious consideration.

But I find it difficult to be critical of the NRA for their behavior in this affair. If the ACLU were to withdraw their opposition (I presume they are opposed) to the bill because they were given an exemption then I would be outraged because they claim free speech as a freedom they have pledged to defend.

Organizations have certain domains in which they operate. Microsoft stockholders would justifiably outraged if MS started donating all their profits to unwed mothers or providing food to all the starving children of the world. It may be that a majority of the stockholders are sympathetic to those charity cases but it would still be wrong because that is not within the charter of the organization.

And so it is with the NRA in this case. True, it’s not as clear cut. There is significant connection between the 1^st and 2^nd Amendments. But the concept is the same. It’s not within the NRA’s domain to protect freedom of speech if it does not affect them.

But, as I said before, I don’t trust Congress to leave the “freedom of speech loophole” open for long. And I hoped the NRA was actually playing a clever game to defeat the proposed law via dropping opposition to it. I’m less convinced they should be given credit for thinking that far ahead. I suspect they got lucky rather than being extremely clever but the end result may be the same.

This may end up being a Philosophy 101 question. Should someone (or an organization) be criticized for their intentions or on the results of their actions? If they were being very clever and defeated the bill we should praise them. If they were just looking out for the short term and got lucky with the same result should we be critical of them?