The ACLU, the McCutcheon Case, & The First Amendment

EXCERPT: What is set out in this SCOTUSblog link contains an excerpt from a forthcoming ebook titled When Money Speaks:The McCutcheon Decision, Campaign Finance Laws & The First Amendment by Ronald Collins and David Skover. The ebook will be available shortly after the Supreme Court issues its ruling in McCutcheon v. FEC.

An extended discussion of the ACLU matter along with a listing of the fourteen ACLU briefs filed in the Supreme Court in campaign finance cases plus the eight filed by former ACLU officials are offered in When Money Speaks.

Go here to view the ACLU’s April 19, 2010 press release re the controversy within the group over the campaign finance issue and how that matter was resolved. Shortly afterwards, Floyd Abrams, Ira Glasser and Joel Gora wrote an op-ed in the WSJ quite critical of that changed policy, to which Susan N. Herman (President of the ACLU) replied by way of a letter-to-the-editor.

REPLY: Following the posting of our excerpt, Steven Shapiro (the legal director of the National ACLU) wrote a reply in which he explained why the ACLU elected not to file a brief in McCutcheon. His reply is followed by a brief rejoinder, found in the same post. 

FYI:  If you have not read it, here is the amicus brief the ACLU filed in Citizens United with Mr. Shapiro serving as counsel of record. And here are a few select passages from that brief, which was written before the ACLU changed its policy (noted above) in April of 2010.

For the past three decades, the ACLU has been deeply engaged in the effort to reconcile campaign finance legislation and First Amendment principles, from Buckley v. Valeo (1976), where we represented our New York affiliate, to McConnell v. FEC (2003), where the ACLU was both co-counsel and plaintiff, to Randall v. Sorrell (2006), where we were lead counsel. In addition, the ACLU has appeared as amicus curiae in many of this Court’s campaign finance cases, including FEC v. Wisconsin Right to Life, Inc.  (2007) (WRTC) . . . .

[T]he reformulated ban crafted by this Court in WRTC continues to threaten core First Amendment speech. Its reliance on the hypothetical response of a reasonable listener still leaves speakers guessing about what speech is lawful and what speech is not. That uncertainty invites arbitrary and discriminatory enforcement. It will also lead many speakers to self-censor rather than risk sanctions or undertake the expense of suing the FEC prior to speaking, especially since most suits will not be resolved until long after the speech is timely and relevant. In short, § 203 was a poorly conceived effort to restrict political speech and should be struck down. . . .

The history of campaign finance regulation demonstrates the need to erect sturdy safeguards for free speech. . . .

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