FAN 30.1 (First Amendment News) Six former ACLU leaders contest group’s 1st Amendment position on campaign finance — ACLU’s Legislative Director responds
→ The history of campaign finance regulation demonstrates the need to erect sturdy safeguards for free speech. — ACLU amicus brief, Citizens United v. FEC, July 29, 2009
→ Any rule that requires the government to determine what political speech is legitimate and how much political speech is appropriate is difficult to reconcile with the First Amendment. Our system of free expression is built on the premise that the people get to decide what speech they want to hear; it is not the role of the government to make that decision for them. — ACLU 2012 Statement
Below is a September 4, 2014 letter signed by six former leaders of the ACLU and presented to the chairman and members of the Senate Judiciary Committee. While the footnotes have been omitted, the full text with notes can be found here. Finally, note that a September 8, 2014 vote has been scheduled in the Senate concerning a proposal to amend the First Amendment.
→ Following the statement below is a response from Ms. Laura W. Murphy, Director of the Washington Legislative Office of the ACLU.
ENTER THE DISSENTERS
Dear Chairman Leahy, Ranking Member Grassley, Subcommittee Chairman Durbin, and Subcommittee Ranking Member Cruz:
This summer, some have taken to citing a June 2014 letter from the ACLU to bolster opposition to a constitutional amendment that would change the way Congress can regulate election spending.[fn] While, as present and former leaders of the ACLU, we take no position in this letter on whether a constitutional amendment is the most appropriate way to pursue campaign finance reform, we believe that the current leadership of the National ACLU has endorsed a deeply contested and incorrect reading of the First Amendment as a rigid deregulatory straitjacket that threatens the integrity of American democracy. [Bold type above & italicized bracketed text below = added]
[Here is the ACLU position as stated on its website: “Unfortunately, legitimate concern over the influence of ‘big money’ in politics has led some to propose a constitutional amendment to reverse the decision. The ACLU will firmly oppose any constitutional amendment that would limit the free speech clause of the First Amendment.”
→ And there is this statement by Laura W. Murphy, director, ACLU Washington Legislative Office (June 2012): “If there is one thing we absolutely should not be doing, it’s tinkering with our founding document to prevent groups like the ACLU (or even billionaires like Sheldon Adelson) from speaking freely about the central issues in our democracy. Doing so will fatally undermine the First Amendment, diminish the deterrent factor of a durable Constitution and give comfort to those who would use the amendment process to limit basic civil liberties and rights. It will literally ‘break’ the Constitution.”]
In 1998, some of us signed the enclosed letter circulated by every then-living retired leader of the ACLU, protesting the ACLU’s erroneous insistence that the First Amendment makes it impossible to regulate massive campaign spending by the richest 1/10 of 1% of the American electorate. [fn] Things have only gotten worse since 1998. The passage of 16 years means that fewer 20th century ACLU leaders are left to sign this letter. More importantly, over the past 16 years, using the ACLU’s erroneous reading of the First Amendment as a fig leaf, five justices have added huge multi-national corporations to the list of unlimited campaign spenders, [fn] and authorized wealthy individuals to contribute virtually unlimited sums to party leaders in a never-ending search for wealth-driven political influence. [fn] Under the ACLU’s erroneous reading of the First Amendment, it is no exaggeration to label today’s version of American democracy as “one dollar-one vote.” We reiterate the substance of the 1998 letter, and add the following additional comments in light of the unfortunate events of the last 16 years.
Our campaign finance system, already in dreadful shape in 1998, has only gotten worse. Today, American democracy is almost irretrievably broken because it is dominated by self-interested, wealthy interests. We believe that reform of our campaign finance system is the only way to fulfill Lincoln’s hope that government of the people, by the people, and for the people shall not perish from the earth. The 2012 federal election cycle was the most expensive in our history, with a combined price tag of $6.3 billion. Most of the money came from the top 1% of the economic tree. Indeed, even within the 1%, the top 10% of the 1% exercised overwhelming independent groups, including super PACs, collectively spent $1 billion.[fn] It is the supremely wealthy that provide the bulk of that money. And because of loopholes in the reporting statutes, we don’t even know who many of them are.
Super PACs, in particular, have become a mechanism for the wealthy to exert even greater influence over our elections and our elected officials. Only 1,578 donors, each of whom gave at least $50,000, were responsible for more than $760 million — or 89.3% — of all donations to super PACs in 2012.[fn] Thus, a microscopic percentage of the population is funding a significant percentage of the political spending in this country.
Equally, many likely 2016 presidential candidates have made pilgrimages to wealthy independent spenders hoping to bolster their electoral chances.[fn] Such opportunities for candidates to, as many outlets put it, “kiss the ring” of a major political donor rightfully cause the public to question whether candidates are tailoring their views to the highest bidder.
We believe that the Supreme Court’s campaign finance decisions from Buckley [fn] to Citizens United to McCutcheon are based on three fallacies. → First, the Court wrongly equates spending unlimited sums of money with pure speech. We agree that campaign spending is a mix of speech and conduct. At reasonable spending levels, the speech element predominates, rendering unreasonably low campaign spending levels (like the absurdly low spending levels in Buckley) unconstitutional. But there comes a point where the conduct element of unlimited spending predominates, permitting content-neutral regulation of massive electoral spending to preserve the ideal of political equality at the heart of American democracy, and to protect the public from the corruption risks associated with vast political spending.
→ Second, the Court improperly distinguishes between political contributions and expenditures. Under the Court’s reasoning, contributions given directly to candidates may be limited, but independent spending may not be. Given the courting by candidates of big independent spenders since the Citizens United decision, it’s clear this distinction makes little sense. Massive contributions and massive independent expenditures each buy undue influence.
→ Third, the Court has failed to recognize that political equality is a compelling interest that justifies reasonable limits on massive political spending. Rather than interpreting the First Amendment as assuring everyone a reasonable opportunity to be heard, the Court (and the National ACLU) has turned the First Amendment on its head by guaranteeing the wealthy an expensive set of stereo speakers and leaving the average citizen with a bad case of laryngitis. Most Americans would find it preposterous to allot more time in a debate to the speaker with the most money. Yet, that is precisely how our campaign finance system functions today.
Adoption of the National ACLU’s misreading of the First Amendment by the Supreme Court’s five justice majority has made things much worse in the last few years. Citizens United has enabled big corporate money to run amok in our political system. McCutcheon struck down the generous limit of $123,200 that an individual was permitted to contribute during a given election cycle. [fn]
After Citizens United and McCutcheon, the sky’s the limit for supremely wealthy folks on the hunt for political influence. New joint fundraising committees have already emerged to channel money to candidates even more efficiently. [fn]
Most disturbing of all is that the current Supreme Court applauds the undue influence that big money can buy. As the Court majority said in McCutcheon, “Ingratiation and access . . . are not corruption. They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.” [fn] That is, of course true. But it is supposed to apply to all of us, not merely the supremely wealthy. Taken to its logical extreme, as the Court seems poised to do, the voices of ordinary Americans will be drowned out entirely by their rich “neighbors” who live nearby in the gated community.
We share a profound respect for the ACLU’s magnificent efforts to defend constitutional rights in this country since its founding almost a century ago. We are proud to have devoted significant portions of our careers to the organization’s work, and look forward to continuing to support the ACLU in the future. On this important issue, however, we believe the ACLU is mistaken. The time has come for a change in the Supreme Court’s campaign finance jurisprudence. We believe that overturning many of the Court’s narrow 5-4 campaign finance precedents and implementing generous, content neutral political spending limits is the best way to fulfill the promise of James Madison’s First Amendment as democracy’s best friend.
Norman Dorsen, Frederick I. and Grace A. Stokes Professor of Law at NYU School of Law; ACLU President, 1976-91, and General Counsel, 1969-76
Aryeh Neier, President Emeritus of the Open Society Foundations; ACLU Executive Director, 1970-78; New York Civil Liberties Union Executive Director, 1965-70
Burt Neuborne, Inez Milholland Professor of Civil Liberties at NYU School of Law; ACLU National Legal Director, 1981-86
John Powell, Director of the Haas Institute for a Fair and Inclusive Society and The Robert D. Haas Chancellor’s Chair in Equity and Inclusion at University of California, Berkeley; ACLU National Legal Director, 1987-93
John Shattuck, President and Rector of Central European University; Executive Director of the ACLU Washington Office, 1976-84
Mel Wulf, ACLU National Legal Director, 1962-77
→ Hat tip to Rick Hasen and the Brennan Center for Justice
There’s been a major breakthrough in the battle to reform the campaign money system. As the House of Representatives joined a bitter debate this week over a measure to fight some of the more egregious campaign abuses, a group of luminaries from the American Civil Liberties Union has broken with the organization’s opposition to the principles underlying the bill.In a statement that will be formally released in the next few days, the nine leaders — among them, former ACLU president Norman Dorsen, former executive director Aryeh Neier, former legal director Burt Neuborne and former legislative director Morton Halperin — dispute the ACLU’s view that placing “reasonable limits on campaign spending” violates the First Amendment. — E.J. Dionne, Jr., Washington Post, June 19, 1998
→ NOTE: In more recent years, former ACLU leaders have filed amicus briefs to the Supreme Court in opposition to the ACLU position in cases such as McConnell v. FEC (2003) (see Appendix to When Money Speaks). In McConnell, for example, Morton Halperin signed onto one such oppositional brief. Even so, he did not sign onto the above letter by former ACLU leaders.
ACLU LEGISLATIVE DIRECTOR RESPONDS
In response to your query, I wanted to share my personal thoughts on the letter recently circulated by the Brennan center from former ACLU leaders hours before the Senate vote on the Udall Amendment. In my view, the letter is meant to confuse congressional staff about who speaks for the ACLU and is designed to provide cover to Democratic senators for voting for a breathtakingly broad constitutional amendment to limit the First Amendment.
While the signers of the letter allegedly take no position on the proposed amendment, anyone who reads their hyperbolic (and in some cases factually unsupported) assertions has to know that the letter gives a wink and a nod to Senate Democrats to support the amendment. Otherwise, what is the point of the timing and substance of the letter? Are there other campaign finance bills coming to the Senate floor in the waning days of the 113th Congress? No.
Instead of a constitutional amendment, the ACLU supports legislation to expand, not limit, the resources available for political advocacy. Thus, the ACLU supports a comprehensive and meaningful system of public financing that would help create a level playing field for every qualified candidate. We support carefully drawn disclosure rules. We support reasonable limits on campaign contributions and we support stricter enforcement of existing bans on coordination between candidates and super PACs.
But some Democrats, who are sometimes soft on the First Amendment, don’t believe that kind of legislation will ever pass. Well, it won’t unless we agree to get Congress to take it seriously. But guess what? The Udall constitutional amendment won’t pass either. The votes are not there. It is merely a vehicle for Democrats to make a point, not to engage in lawmaking. The leaders of the House of Representatives will not even schedule a floor vote, and will thus dismiss it out of hand.
Instead of facilitating common ground with Republicans and Democrats to find achievable solutions to our campaign finance problems, the signers of the Brennan Center letter are knowingly allowing themselves to be used for partisan purposes. They know that their letter will make little difference, if any, in the outcome of the vote. I have so much respect for each and every one of them, but not for this eleventh hour “sham issue advocacy.”
To give just a few hypotheticals of what would be possible in a world where the Udall proposal is adopted as the 28th Amendment to the Constitution:
- Congress would be allowed to restrict the publication of Secretary Hillary Clinton’s memoir Hard Choices were she to run for office;
- Congress could criminalize a blog on the Huffington Post by Gene Karpinski, president of the League of Conservation Voters, that accuses Senator Marco Rubio (R-FL) of being a “climate change denier”;
- Congress could regulate Public Citizen’s website, which urges voters to contact their members of Congress in support of a constitutional amendment addressing Citizens United and the recent McCutcheon case, under the theory that it is, in effect, a sham issue communication in favor of the Democratic Party;
- A state election agency, run by a corrupt patronage appointee, could use state law to limit speech by anti-corruption groups supporting reform;
- A local sheriff running for reelection and facing vociferous public criticism for draconian immigration policies and prisoner abuse could use state campaign finance laws to harass and prosecute his own detractors;
- A district attorney running for reelection could selectively prosecute political opponents using state campaign finance restrictions; and
- Congress could pass a law regulating the ACLU’s letter for noting that all 41 sponsors of this amendment, which the ACLU opposes, are Democrats (or independents who caucus with Democrats).
Such examples are not only plausible, they are endless. But the signers of the Brennan Center letter don’t address these legitimate concerns.
Currently, we can combat government regulated viewpoint discrimination, selective enforcement and unreasonable regulations that unnecessarily stifle free speech in the courts. Our ability to challenge those governmental actions would not apply to speech covered by this proposed amendment. Tinkering with the First Amendment in this way opens the door to vague and overbroad laws, which both fail to address the problem that Congress and those concerned about the ill effects of Citizens United wish to solve and invariably pull in vast amounts of protected speech.
Democratic and Republican senators should vote “NO” on the Udall Amendment.
Laura W. Murphy
→ For more on the history of this ACLU controversy, see:
- Ronald Collins & David Skover, When Money Speaks (2014)
- Ronald Collins & David Skover, “Before McCutcheon – The ACLU position in the early years,” SCOTUSblog, March 12, 2014
- Steven R. Shapiro, “The ACLU & the McCutcheon case,” SCOTUSblog, March 14, 2014 (includes Ronald Collins & David Skover – Rejoinder to Steven Shapiro)
- Joel Gora, “Free Speech, Fair Elections, and Campaign Finance Laws: Can They Co-Exist?” (2013)
- Susan Herman, “ACLU Backs the First Amendment,” letter to Wall Street Journal, May 6, 2010
- Floyd Abrams, Ira Glasser & Joel Gora, “The ACLU Approves Limits on Speech,” Wall Street Journal, April 30, 2010
- ACLU Board Addresses Campaign Finance Policy, Aptil 19, 2010
- “ACLU Denounces Campaign Finance Bill As Unconstitutional Attack on Political Freedom in America,” March 30, 2001
- ACLU on Campaign Finance Reform (2001-2012)
- Joel Gora, “Campaign Finance Reform: Still Searching Today for a Better Way” (1998) (“I first encountered campaign finance reform as a young ACLU lawyer twenty-five years ago, in 1972.”)