National Gun-Rights Group Aims at S.C. Ethics Legislation

March 2, 2015

Investigative Reports

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Gun TargetThe leader of a national gun-rights organization says he has serious concerns about S.C. ethics bills dealing with election-year messaging by issue-advocacy groups like his.

Dudley Brown, president of the Colorado-based, nonprofit National Association for Gun Rights, told The Nerve on Friday his organization is “closely” following the legislation.

“The Citizens United ruling by the (U.S.) Supreme Court largely dismantled the federal infringements on free speech, but a number of states have clung to the hope of shutting citizens out of the public policy process, Brown said in a written statement to questions fromThe Nerve.

“On behalf of the tens of thousands of South Carolina members of the National Association for Gun Rights, we’re fighting to keep our First Amendment rights intact, since they are crucial to defending our Second Amendment rights.”

Asked if his organization would take South Carolina to court if necessary, Brown, who also is CEO of Rocky Mountain Gun Owners, described as Colorado’s largest gun-rights group, replied, “We will be doing everything possible to remove any unconstitutional abridgments of our right.”

Founded in 2001, NAGR on its website says it has “led the charge to halt the radical anti-gun agenda across the nation,” noting it has a “rapidly expanding membership of 3.5 million grassroots activists.” In South Carolina, the nonprofit Palmetto Gun Rights is affiliated with NAGR.

In a Nerve story last June, Brown accused Gov. Nikki Haley’s office of trying to “bully” his organization after he said hundreds of members of his group contacted her office opposing a state House ethics bill. He said then Haley’s office directed the State Ethics Commission to contact his group in response to the grassroots effort, contending the move was intended to “intimidate citizens from practicing free speech.”

Under that bill (H. 3945) – the final, compromise version of which passed the House but died in the Senate at the end of session last year – a person who “makes an electioneering communication” would have to report, among other things, to the State Ethics Commission the “top five donors to the reporting person.”

Critics of the legislation contended that forcing issue-advocacy nonprofits to reveal their private donor lists would expose those contributors to harassment or retaliation by public officials who faced criticism by those organizations.

An “electioneering communication” was defined in that bill as “any broadcast, cable, or satellite communication or mass postal mailing or telephone bank” that “refers to a clearly identified candidate for elected office,” and is publicly “aired or distributed within sixty days prior to a general election or within thirty days prior to a primary for that office.”

The legislation was introduced by Rep. Murrell Smith, R-Sumter; a leading co-sponsor was then-House Speaker Bobby Harrell, R-Charleston, who resigned from office in October after pleading guilty to six criminal ethics charges.

Brown contended last year that H. 3945 would target any nonprofit organization that informed the public on the positions of candidates, though didn’t publicly endorse or oppose any candidate. He warned that some national organizations were “ready to sue the state if this bill passed and was implemented.”

‘Electioneering Communication’ Bills

Less than a year later, the 170-member General Assembly could again be setting itself up for a possible legal challenge.

A large ethics bill (S. 1) sponsored by Sen. Larry Martin, R-Pickens and the Senate Judiciary Committee chairman, contains language similar to that in H. 3945. Martin’s legislation would, among other things, define “electioneering communication” as “any broadcast, cable, or satellite communication or mass postal mailing or telephone bank that has the following characteristics”:

  • Merely “refers” to a “candidate for elected office”;
  • Is “publicly aired or distributed” within 60 days of a general election or within 30 days of a primary election for that office; and
  • May, though not required to, be received by at least 50,000 people for an election in a statewide office or at least 7,500 people for any other election, if it is “in the form of broadcast, cable, or satellite communication”; or at least 20,000 households, “cumulative per election,” for an election for statewide office, or at least 2,500 households, “cumulative per election,” for any other election, if it is “in the form of mass mailing or telephone bank.”

Under Martin’s bill, a person who is not defined as a “committee” and who makes an “electioneering communication” must file a report with the State Ethics Commission that would include, among other things, the “identification of the top five donors to the reporting person.” A “committee” is defined in the legislation as an “association, a club, an organization, or a group of persons, including a party committee, a legislative caucus committee, or a noncandidate committee, which has its major purpose the nomination, election or defeat of one or more candidates and receives contributions or makes expenditures in excess of five hundred dollars during an election cycle.”

Martin’s bill was rejected last month on the Senate floor after it was amended, though Haley last week in a letter to senators urged them to reconsider the legislation this week, singling out what she described as Martin’s proposal for “independent oversight and enforcement of ethics laws.”

Meanwhile, House Speaker Jay Lucas, R-Darlington and a co-sponsor of last year’s failed House ethics bill, last week introduced a large ethics bill (H. 3722), which  was placed directly on the House calendar, bypassing the committee-review process.

Lucas’ bill, which contains the language of an “electioneering communication” bill (H. 3189), sponsored by Rep. Kirkman Finlay, R-Richland, that passed the House last month and is in Martin’s Senate Judiciary Committee, is similar to Martin’s legislation, though it doesn’t include the population and household thresholds for election-year messaging.

Under H. 3189 and H. 3722, a person making an “electioneering communication” must file a State Ethics Commission report that, among other things, identifies each donor making a contribution of more than $100 to the “entity filing the report” if the donation was “made to further” the messaging.

(H. 3722 also contains language of another House-passed bill, H. 3184, sponsored by House Speaker Pro Tempore Tommy Pope, R-York, that would expose citizens who “wilfully” file “groundless” ethics complaints against S.C. judges to a possible criminal charge that carries upon conviction a maximum one-year prison sentence or a fine of up to $1,000, as first reported by The Nerve last week.)

As with S.1, Lucas’ bill would exempt any communication that doesn’t mention an “election,” “candidacy” or “opposing candidate”; and doesn’t take a “position on the candidate’s character or qualifications and fitness for office.” But in addition to that, the exemption would take effect only if the communication “proposes a commercial transaction,” which critics say typically doesn’t apply to nonprofit, issue-advocacy organizations.

‘Direct Intimidation’

At a press conference last month at the State House, Ashley Landess, president of the South Carolina Policy Council – The Nerve’s parent organization – warned that lawmakers, in pushing “electioneering communication” legislation, were “attempting to have a chilling effect on free speech.”

“What this is about is direct intimidation by powerful officials in government, and believe me, that happens and it has happened in this state by members and formers member of this chamber who have sought to intimidate supporters of groups like ours who challenge them,” she said.

Landess cited a 1958 U.S. Supreme Court ruling in which the justices said the constitutional free-speech and assembly rights include a right of private group association. In that case, the state of Alabama was seeking to force the National Association for the Advancement of Colored People (NAACP) to turn over its private membership lists.

During the press conference, Talbert Black, the South Carolina coordinator of a grassroots organization known as Campaign for Liberty, said Haley “can’t claim ignorance” that the latest ethics legislation would “hurt nonprofit, issue-advocacy groups in our ability to inform the public regarding issues important to our mission,” citing the situation last year between the Governor’s Office and National Association for Gun Rights.

“When we cannot freely speak about a politician without fear of retribution, we truly have no liberty,” Black said.

Reach Brundrett at (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.