The Rift in the ACLU Over Free Speech

In the context of ongoing deliberations over a proposed amendment to the Constitution to authorize the government to enact laws regulating campaign expenditures and contributions, a sharp, even bitter, rift has emerged between different generations of the ACLU's leadership over the ACLU's understanding of the First Amendment. The rift is not about whether to adopt the proposed constitutional amendment (neither side of the intra-ACLU debate has endorsed it), but about the ACLU's position on the constitutionality of campaign finance reform today.

The current leadership of the ACLU takes a strong pro-free speech position that, like the position of Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts, looks askance at most forms of campaign finance regulation that would limit the freedom of individuals to spend as much as they want in the political process to advance their political beliefs.

The six individuals who led the ACLU from 1962 to 1993 endorse a rather different view. In a letter sent on September 4 to the leadership of the Senate Committee on the Judiciary, they embraced a position that, like the position of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, recognizes that limitations on campaign expenditures and contributions may be necessary to ensure the proper functioning of the democratic process.

As a card-carrying member of the ACLU for 40 years and a member of the ACLU's National Advisory Council, I enthusiastically endorse the position of the collective former leadership of the organization. The sad truth is that the current leaders of the ACLU have embraced a thoughtless and reflexive conception of the First Amendment that is incompatible with the overarching values of the Constitution and, indeed, of the ACLU itself.

I say this as someone who once shared the view campaign finance regulations violated the First Amendment, but who has since come to a different set of conclusions. The reason for my shift over the years is not due to any change in my thinking about the fundamental principles of the First Amendment, but to a change in the realities of the political process over the past four decades.

At the risk of being simplistic, there are two central precepts to the ACLU's traditional understanding of the First Amendment. First, the government may never (or pretty close to never) restrict speech when it targets a particular message. This is the essential meaning of the First Amendment and it is the principle the ACLU has always, rightly, defended, even to the point of defending the right of Nazis to march in predominantly Jewish suburb of Skokie in the late 1970s. In taking that position, the ACLU was fearless, and it was correct.

Second, when the government restricts speech without regard to the particular message conveyed, it has much greater latitude, because such restrictions are less threatening to the core values the First Amendment is meant to protect. For example, although the government cannot constitutionally ban the use of loudspeakers in a residential neighborhood because the speaker is promoting Republican ideas or criticizing the mayor or opposing gun control, it can constitutionally ban loudspeakers in a residential neighborhood after, say, 10:00 at night in order to preserve the peace and quiet of the community. The ACLU has always, rightly, recognized this distinction. This does not mean that all restrictions of speech that do not target particular messages are constitutional, but it does mean that such restrictions are permissible if the reasons for the restriction substantially outweigh the harm to free expression.

The current ACLU's leadership has treated laws regulating campaign expenditures and contributions as if they fell into the first precept. For that reason, it treats these laws as profoundly threatening to core First Amendment values and as almost conclusively unconstitutional. In this judgment, the current leadership is simply wrong, and the former leaders of the ACLU have it right.

Whatever else one might think about laws regulating the amount of money individuals and corporations can spend in the political process, they do not target particular messages. They apply without regard to whether any would-be speaker is a Democrat or a Republican, whether he favors gun control or abortion control, whether she wants us to destroy ISIS or to stay our hand. For this reason, such laws are properly analyzed, as the former leaders of the ACLU understand, as falling within the second precept rather than the first.

This is not say that such laws are not troubling. They are troubling in at least three ways. First, they restrict the freedom of individuals to spend as much as they want in the political process in an effort to bring about the outcomes they support. Such laws in effect say to people, "you've spoken enough, so now sit down and shut up." That must be taken seriously. Second, to the extent such laws have a differential effect on people with differential political positions, they can have an indirect effect on what otherwise would be the balance of views in the "marketplace of ideas." Third, it is always dangerous to allow elected officials to mess around in the political process in this manner. When they adopt laws that shape the electoral process, they undoubtedly are affected by their own self-interest. That is, they are likely to support regulations that benefit them and ensure their re-election, and to oppose regulations that harm them and endanger their re-election.

For these reasons, laws regulating campaign expenditures and contributions, even if not directed at particular messages, pose serious dangers to core First Amendment values and must therefore be taken very seriously. Although such laws are not per se unconstitutional, because they do not restrict only some messages but not others, they should be upheld only if the government can demonstrate that they are necessary to further compelling government interests. Unlike the law prohibiting loudspeakers in residential neighborhoods at night, campaign finance laws must meet a very demanding standard of justification in order to pass constitutional muster.

In my view, when the Supreme Court first considered the constitutionality of such laws almost 40 years ago, no such showing could be made and the Court rightly held laws limiting political expenditures unconstitutional. Today, though, the world has changed profoundly. This is due to many factors, including the extraordinary increase in the cost of political electioneering due to the advent of technology and the profound inequality in wealth that has come to plague our nation. For those reasons, the American political process -- and our elected representatives -- are now for sale as never before in our history. As the former leaders of the ACLU point out in their letter, politicians spent an extraordinary $6.3 billion in the 2012 election cycle, and most of that money came from a relative handful of donors who are in the top one percent, indeed, the top one-tenth of one percent, of the American people in terms of wealth.

Regardless of whether one agrees or disagrees with the views of the super-rich, this state of affairs is an unmitigated disaster for American democracy. Not only does it distort our electoral process, but it corrupts our elected officials and disillusions our citizens. Bringing this situation under control, and restoring a sense of order, decency, and equality to our electoral process, are compelling interests, indeed, and the only way to address this threat to our nation's very existence is to limit the magnitude of these contributions and expenditures.

This conclusion is perfectly consistent with the long-standing principles of the ACLU, which are designed both to promote both robust and wide-open public debate and to ensure the fair and sensible functioning of our democratic process. It is unfortunate that the organization's current leadership has lost sight of those principles in the name of a blind adherence to an empty conception of "the freedom of speech."