The American Civil Liberties Union has earned its reputation as the nationâ€™s foremost legal opponent of government censorship and defender of First Amendment political speech. But increasingly, this national organization with 500,000 members and a $70 million annual budget has another legacyâ€”helping the wealthiest Americans and institutions spend unlimited sums on elections.
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 ACLUâ€™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 Courtâ€™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 ACLUâ€™s national office, which urged the Court to remove restrictions on independentâ€”or non-candidate relatedâ€”electioneering, the Montana ACLU argued this wasnâ€™t about censorship at all, but preventing corruption and ensuring Montanansâ€™ voices could be heard in elections.
â€œMontanaâ€™s experience, and experience elsewhere since this Courtâ€™s decision in Citizens United v. Federal Election Commâ€™n, make it exceedingly difficult to maintain that independent expenditures by corporations â€˜do not give rise to corruption or the appearance of corruption,â€™â€ wrote Justice Ruth Bader Ginsburg, with Justice Stephen Breyer joining. A hearing â€œwill give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidateâ€™s allegiance, Citizens United should continue to hold sway.â€
Two phrases in the justicesâ€™ statement may have particular resonance for the ACLUâ€™s national boardâ€”the â€œexperience elsewhereâ€ and â€œcorruption or the appearance of corruption,â€ which suggest constitutional issues apart from censorship. In Citizens United, the ACLU had argued that independent expenditures were the kind of â€œspeech that lies at the heart of the First Amendmentâ€ and must not be censored.
According to Burt Neuborne, the ACLUâ€™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 whatâ€™s left of the nationâ€™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 naÃ¯ve constructions. This is because 2012â€™s electoral landscape is presenting free speech issues that are not about state censorshipâ€”but what American democracy should look like and how big money functions in it.
The ACLU was not responsible for the Supreme Courtâ€™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 electioneeringâ€”which the Courtâ€™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 todayâ€™s super PACs emerged.