The American Civil Liberties Union still stands for free speech—sort of.
The good news is, after considerable debate, the ACLU affirmed its policy on associational speech after Citizens United v. Federal Election Commission.
The ACLU board of directors affirmed the organization’s long-standing opposition to limits on campaign finance expenditures—whether corporate, union, media or otherwise—at a weekend meeting, according to a Monday press release.
On a 36-30 vote, though, the board voted to revise the ACLU’s policy on taxpayer financing programs and campaign contribution limits.
The ACLU would “accept spending limits as a condition of voluntary public financing plans,” according to the release, stressing that candidates would have to have a “true choice” as to whether to participate. This presumably rules out taxpayer financing programs with “rescue funds” which boost subsidy-accepting candidates based on the spending of outside groups and non-participating candidates. Two states, Connecticut and Arizona, have “rescue funds” challenges to their programs pending at the federal appellate court level. CCP is challenging Wisconsin’s recently-enacted program for state Supreme Court candidates in federal court as well.
The ACLU will now also permit “reasonable limits on campaign contributions to candidates. ” Prior policy opposed all limits.
The board set aside six hours to discuss these issues at its April 17-18 meeting. The ACLU board also met in October and January to discuss these policy changes.
Soon after the Supreme Court decided Buckley v. Valeo in 1976, a faction within the ACLU has agitated for a shift on First Amendment issues in campaign finance. The ACLU leadership has also shifted since the early 1980s toward an approach that focuses more on civil rights than civil liberties and has less aversion to government action and control depending on what the government seeks to do: campaign finance regulation vs. the Patriot Act. This wing has largely controlled the debate in recent years.
The board has considered three or four major policy revisions on campaign finance since the 1980s, but all have been largely beaten back by the pro-First Amendment camp. A committee was appointed about three years ago containing mostly members of the pro-campaign finance regulation camp. They issued a preliminary report in June. The policy change was put off and later considered at the October meeting. It was again put off, then considered at this year’s January meeting, two days after the Supreme Court’s decision in Citizens United. A supplemental section of the report specifically addressed Citizens United—it agreed with the dissent, rejected the majority opinion and argued that the government should be able to regulate and restrict corporate speech.
The committee report that the ACLU Board considered this past weekend advocated the following three key changes in ACLU policy:
(1) Allowing “reasonable” limits on political contributions.
(2) Allowing conditions on receipt of taxpayer funding of campaigns, as well as approving trigger provisions and the like.
(3) Allowing prohibition of contributions and expenditures by business corporations, though not on media corporations, labor unions and nonprofits
The decision by the ACLU board to change policy on items (1) and (2) doesn’t represent a whole scale reversal of the ACLU’s campaign finance policy, but there’s a realization that the ACLU could suffer blowback as they retreat from a strong defense of First Amendment rights. This debate is comparable to a “Skokie moment,” referring to the ACLU’s support of Nazi political demonstrations in the 1970s. The ACLU, of course, interceded on behalf of the Nazis.
Some board members are loathe to be tarred as supporting First Amendment rights for Nazis but opposing the ability of small businesses and other corporations to speak out on politics.
The ACLU hasn’t been known of late for strident campaign finance activism—it has helped in some campaign finance and lobbying cases (notably Connecticut Green Party et al v. Garfield), but it only has three pieces on content on campaign finance since 2006—but it’s an important coalition member in the effort to defend First Amendment political rights. The erosion in their support on this issue is unfortunate.
In January, the New York Sun reported that the ACLU was condsidering this policy shift.
