This complex legacy follows a nearly four-decade history of filing briefs in the Supreme Court and lower federal courts, virtually all of them arguing that the door to censorship, via regulation of core political speech, must never be opened. But various forces in the courts, the political world, and inside the ACLU are converging that may prompt the ACLU’s national board to reexamine its hardened stance in a more nuanced light, just as it moderated its policy on public financing of elections soon after the Supreme Court’s controversial Citizens United ruling.
The pressure went up considerably on Friday, as two U.S. Supreme Court Justices said the Court should reopen Citizens United, as they suspended a Montana Supreme Court ruling that upheld the state’s century-old ban on corporate electioneering. Unlike the ACLU’s national office, which urged the Court to remove restrictions on independent—or non-candidate related—electioneering, the Montana ACLU argued this wasn’t about censorship at all, but preventing corruption and ensuring Montanans’ voices could be heard in elections.
“Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’” wrote Justice Ruth Bader Ginsburg, with Justice Stephen Breyer joining. A hearing “will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidate’s allegiance, Citizens United should continue to hold sway.”
Two phrases in the justices’ statement may have particular resonance for the ACLU’s national board—the “experience elsewhere” and “corruption or the appearance of corruption,” which suggest constitutional issues apart from censorship. In Citizens United, the ACLU had argued that independent expenditures were the kind of “speech that lies at the heart of the First Amendment” and must not be censored.
According to Burt Neuborne, the ACLU’s former national legal director and now legal director at the Brennan Center for Justice, only one perspective matters to an organization that has weathered criticism for decades for defending unpopular people and causes: whether new facts from current events and recent changes in law demand a reevaluation of their position. As the two justices suggest, the 2012 presidential campaign, in combination with the Court majority’s recent aggressive deregulation of campaign financing, may be that spark.
The presidential campaign has seen what’s left of the nation’s campaign finance laws flouted in a striking way that cannot have gone unnoticed within the ACLU; it has revealed that critical rulings in Citizens United (and the D.C. Circuit Court in a ruling that followed, SpeechNow.org) were at best politically naïve constructions. This is because 2012’s electoral landscape is presenting free speech issues that are not about state censorship—but what American democracy should look like and how big money functions in it.
The ACLU was not responsible for the Supreme Court’s decision to expand Citizens United from a narrow case to one remaking big portions of campaign finance law. But like many times before, it urged deregulation of electioneering—which the Court’s majority did for independent expenditures. Just weeks later, an appeals court in SpeechNow.org drew on this ruling, allowing individuals and corporations to make unlimited contributions to political committees, so long as those groups only make independent expenditures and do not coordinate with candidates. That is how today’s super PACs emerged.
In Citizens United, the Supreme Court made a series of remarkable assertions. It declared that independent expenditures could not corrupt candidates, as they would be truly independent and operate apart from the candidates. But neither the Supreme Court nor the Speechnow.org court said how to avoid coordination, assuming the problem away. Everyone on the Court but Justice Clarence Thomas held that disclosure of spending was permissible, not recognizing that current disclosure rules allow donors to operate in the dark behind innocuous stage names. Like coordination, corruption was also dumbed down. Invoking the long-established doctrine that the only legitimate reason for regulating campaign funds is curbing quid pro quo corruption or the appearance of it, the majority watered this concept down saying a lot about what corruption was not, namely access, influence and ingratiation of candidates, but next to nothing about what quid pro quo corruption was, apart from buying votes. Against this backdrop, Justice Anthony Kennedy, writing for the majority, made the startling assertion that limitless independent expenditures in elections could not possibly cause the public to lose faith in our democracy.
Needless to say, his prediction has not been borne out by events. Recent nationwide polling has found 55 percent of Americans oppose the decision, and bigger numbers believe that their voices are diminished compared to big donors and lobbyists. It is not hard to see why the public is upset and discouraged. Presidential candidates’ former campaign staffers are managing the supposedly independent committees, mocking that supposed independence. By uniformly taking the low road, they complement the official campaign’s positive messaging showing further coordination. The top donors use the fiction of independence to ignore federal contribution limits and write million-dollar checks, including to political non-profits that do not disclose their names. To suggest that an individual or corporation writing six- or seven-figure checks to back candidates or parties does not expect payback is naïve, former political consultants say. Meanwhile, a voluminous record discussing independent expenditures, coordination and corruption was before the Court during its deliberations. Citing this record, Justice John Paul Stevens in his Citizens United dissent wondered how the majority could be so indifferent.
“On numerous occasions we have recognized Congress’ legitimate interest in preventing the money that is being spent from exerting an ‘undue influence on an officeholder’s judgment’ and from creating ‘the appearance of such influence,’” he wrote. “Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics.”
These developments raise specific First Amendment issues that are not about state censorship of political speech, but about corruption and distortions of the democratic process. These issues have been noted not only on editorial pages and parodied on late-night TV, but from within the ACLU itself. The Montana ACLU affiliate weighed in before the recent Montana Supreme Court decision, taking the opposite view of the national ACLU office. And New Mexico’s ACLU chapter did not interfere this month as that state’s legislature passed a resolution calling for a constitutional amendment to overturn Citizens United.
Moreover, in recent weeks, a respected Second Circuit judge took issue with Citizens United in a concurring opinion in a case involving New York City’s public financing system. “All is not well with this law, and I believe it appropriate to state in a judicial opinion why I think this is so,” wrote Guido Calabresi, a U.S. Court of Appeals judge and former Yale Law School dean, in comments to late 2011 ruling. Calabresi’s remarks address the majority’s contention in Citizens United—which echoes the national ACLU’s view—that unfettered political speech regardless of the speaker is paramount. He began by quoting Luke 21:1-4.
“As Jesus looked up, he saw the rich putting their gifts into the temple treasury. He also saw a poor widow put in two very small copper coins. “Truly I tell you,” he said, “this poor widow has put in more than all the others. All these people gave their gifts out of wealth; but she out of her poverty put in all she had to live on.”
Like Luke, Calabresi noted that the wealthy will drown out the political speech of poorer people by virtue of spending more to send a message—having a larger megaphone. Additionally, he said that such domination of the airwaves also “obscures the depth of each speaker’s views,” as one cannot tell if the voice being eclipsed is whispering, crying or yelling—conveying the intensity of their opinions. “And that is a problem of profound First Amendment significance.”
“There is perhaps no greater a distortive influence on the intensity of expression than wealth differences,” he wrote. “The wider the economic disparities in a democratic society, the more difficult it becomes to convey, with financial donations, the intensity of an ordinary citizen’s political beliefs. People who care a little, if they are rich, still give a lot. People who care a lot must, if they are poor, give only a little. Jesus’ comment about the rich donors and the poor widow says it all.”
In other words, in 2012, when supposedly independent super PACs and political non-profits are raising millions from wealthy individuals and corporations whose actions are coordinated in all but name only with the candidates, and disclosure by those political entities is untimely or non-existent, the nation is facing serious First Amendment issues that do not neatly fit the ACLU’s anti-censorship line.
Convincing the ACLU
The ACLU is a nationwide organization with independent affiliates in every state and Washington, DC, and a headquarters and national legal department in New York. Its board of directors has representatives from every state and from its 500,000 members. As such, it is one of the most powerful legal advocacy organizations in the country.
For decades, people inside and outside the ACLU have tried to get its board to moderate its campaign finance views. Since 1970, it has taken up the issue two dozen times. The key question, according to Neuborne, its former national legal director, is whether today’s rising calls to restrict the wealthiest Americans and institutions from spending unlimited money ‘independent’ of campaigns is just today’s version of censoring society’s latest villain, as the federal government once tried to do with Communists, Nazis, gays, minorities and pornographers—or is something constitutionally different going on in today’s deregulated campaign finance environment?
One of the ACLU board’s long-held assumptions, which was affirmed in the Supreme Court’s 1976 Buckley v. Valeo ruling, is that candidates and independent groups who spend their own money in elections constitute a form of free speech that must not be regulated. In Buckley, the Court held that a new congressional law’s limits on campaign spending by office seekers and independent groups were unconstitutional. It ruled, however, that campaign contribution limits were constitutionally permissible in the interest of preventing corruption or its appearance with candidates, an interest that candidate and independent expenditures did not present. Buckley’s framework has led to today’s billionaires writing million-dollar checks to the supposedly independent super PACs and political non-profits, and in turn, voters in 2012’s early presidential contests hearing their views dominate the airwaves and debate.
The ACLU includes Buckley on its list of its most important 20th-century victories. Moreover, in the 36 years since that case, with few exceptions, the Court and the ACLU board both have treated spending money in elections as the purest form of protected constitutional speech there is—not conduct that can be regulated. That is a key legal distinction. Other areas of First Amendment law are not this clear-cut and all kinds of speech are regulated without seeing censorship issues. That raises the question of why should political speech in elections be so black and white, or can it be balanced with other democratic interests?
The ACLU’s assertion that political messaging is pure speech whose regulation amounts to censorship infuriates not just state and federal judges but many democracy advocates, particularly those who believe big money distorts the process and acts to suppress the speech of people of lesser means.
“It’s not speech itself and it never has been,” said John Bonifaz, co-founder and director of Free Speech for People. “It is conduct not speech, and any regulation of spending of campaign money in elections is the regulation of the manner of speech, to ensure that anyone who has a 1000-megawatt bullhorn is not able to drown out anybody else’s speech.”
A series of former top national ACLU officials have tried to get the national board to change its position. In fairness, the board did change its policy in April 2010 after Citizens United, saying that spending limits were permissible for candidates that took public financing. And its board, noting this was unprecedented in ACLU history, agreed that “reasonable” contribution limits were acceptable, although that has been settled law since Buckley. But these changes re-enforced laws established decades earlier. And on the key holdings in Citizens United, the board did not budge.
“You can be furious at guys like that, especially when they win,” said Neuborne, who now believes the ACLU national policy is on the wrong side of history and the Constitution. He went before the board to make that case after Citizens United came out, debating Floyd Abrams, a famous First Amendment attorney whose legal career has spanned defending the New York Times to shielding major tobacco companies from federal health regulations.
“Their trumping legal argument is that you have to make an overwhelming showing of need before they will sit still for censorship. And they say your overwhelming showing of need is that rich people have too much power in the society, and they are distorting the democratic process. Their argument is, ‘Look, there are a lot of rich people and a lot of them disagree. So if the rich people cancel each other out, what’s the big deal? All they do is fund democracy. People get more speech and the rich folks pay for it.”
That’s not all the ACLU’s board says, said Neuborne. “Second thing they say [is that] if you think that rich folk’s speech is skewed, you have to show me facts to demonstrate that. You just can’t tell me it’s a problem. Show me which election it has happened in. Show me where one side blew out the other side to the point where the other side wasn’t able to make its case to the electorate. You know what, I can’t make that showing. The closest it happened interestingly was Florida, when Romney outspent Gingrich five to one. I think it demonstrably changed the outcome of the election. But you cannot argue that national elections are shifted that way, because in national elections that parties are relatively equally balanced in terms of money.”
Indeed, 2012 is turning into exactly that kind of political arms race. While most of the early independent spending has been in the Republican presidential race, the Democrats are quickly falling in line. The Obama re-election campaign has said it would refer donors to a super-PAC run by a top ex-Obama campaign staffer—another instance of admitting that these PACs were anything but “independent” of the campaigns, the concern that Justice Kennedy turned a blind eye to Citizens United. In liberal circles, Credo Mobile, a phone company that has raised millions for progressive causes, said it too would form a super-PAC for the 2012 election. So has ActBlue, which has a traditional PAC that can donate to candidates and an independent super-PAC.
Neuborne knows American elections do not benefit from this spiral—which only elevates the role of wealthier participants at the expense of Americans of more modest means. The question is how to convince the ACLU board. It may have debated its response to Citizens United too soon, he said, noting that Abrams argued the organization would look foolish after siding with the Court majority in the case and winning—only to reverse its position. That, however, was a political argument, not a constitutional one. Neuborne said 40 percent or more of the board believe it is time to take a more nuanced view.
“Where the ACLU goes off the rails is that it forgets at some point that spending massive amounts of money ceases to be analogous to just pure speech and becomes an exercise in power,” Neuborne said. “I think that the ACLU is forgetting that the First Amendment is democracy’s friend, not democracy’s enemy. And when it demonstrably hurts democracy there has to be something wrong with a policy that just digs in and says, ‘Sorry, the First Amendment made us do it.’”
The ACLU’s national press office declined to comment or make any attorneys available for this article. Calls and emails to ACLU litigators, current and former, who litigated many of its political speech cases before the Court also were not returned.
However, Neuborne is hardly alone in his analysis of how First Amendment fundamentalism can fray the fabric of political speech and democracy. Supreme Court Justices, starting with Byron White’s dissent at the start of the Court’s modern deregulatory regime in Buckley, and John Paul Stevens, whose 2010 dissent in Citizens United, catalogued the dangers of unregulated big money in elections.
“While it is true that we have not always spoken about corruption in a clear or consistent voice, the approach taken by the majority cannot be right, in my judgment, “Stevens wrote. “It disregards our constitutional history and the fundamental demands of a democratic society.”
Unlike the 1976 Buckley decision, which slowly transformed America’s campaign finance landscape over many years, the impact from Citizen United has come in barely two years. The Court’s majority in Citizens United did not anticipate these consequences. It puts those who argued with the majority—such as the ACLU’s national office—in an awkward place, because as new facts have emerged, so have nuanced political speech issues that cannot be adequately answered by saying censorship is the most important First Amendment issue.
And Citizens United may be headed back to the Supreme Court. On Friday, the Court issued a stay in a suit challenging Montana’s 1912 ban on corporate campaigning. The Court could overrule Montana without a hearing—citing the supremacy of the nation’s highest court over state courts. Or it could hold a hearing to re-evaluate parts of it in light of new facts and public perceptions.
Should the Court hear the Montana case, the ACLU board may be pushed to re-evaluate its policy. Whether it will remains to be seen. The ACLU thrives on being attacked and sees itself as the last legal line of defense against state censorship. But an honest look in a mirror may reveal that its anti-censorship absolutism is helping the wealthy to eclipse and suppress—if not silence—political speech of millions of ordinary Americans.