ACLU May Reverse Course On Campaign Finance Limits After Supreme Court Ruling

The first big impact of the Supreme Court’s decision lifting restrictions on certain corporation campaign spending may be at the American Civil Liberties Union, which, after years of opposing restrictions on free speech grounds, is considering whether to reverse course and endorse government limits on money in politics.

The ACLU has long opposed government limits to how much a donor can give to a political campaign or spend airing advertisements on an issue during an election. On this point, the ACLU has been in agreement with conservative organizations that believe money contributions are a form of political speech and deserving of First Amendment protection. It has been at odds with many liberal organizations, which have argued money in politics must be strictly limited so that rich organizations and individuals don't wield outsize influence.

But Thursday’s Supreme Court decision in Citizens United v Federal Election Commission, which would enable corporations to spend freely on political causes, is forcing the ACLU to address what one internal memo describes as a "Skokie moment," a reference to the controversy in which the organization defended the right of American Nazis to march in the Chicago suburb of Skokie. The moment is often seen as one of the acid tests of the ACLU’s willingness to stick to its First Amendment principles.

The First Amendment, opening article of the Bill of Rights, says that Congress “shall make no law . . . abridging the freedom of speech, or of the press . . .” It was cited in Thursday’s Supreme Court’s decision, which was is in accord with the ACLU’s traditional position that the government should keep out of regulating money in politics. The organization had filed a brief in support of the winning side in the case. But concern that the Supreme Court ruling will fundamentally alter American democracy has ignited within the union an intense debate that was aired on Saturday at the regular quarterly meeting of the 83-member board of directors and in interviews with this reporter. The board on Sunday sent the issue to its special committee on campaign finance to mull the impact of Citizens United.

“The ACLU's version of democracy is from the ground-up,” one civil rights lawyer, David Gans, on Saturday told the ACLU's board, which was assembled downtown at One New York Plaza. “Now Exxon Mobil can spend 2% of its money and blow that all up.”

Mr. Gans was one of several attorneys invited to the board meeting to debate whether the ACLU should change its position on money in politics. Another, Burt Neuborne, also urged the ACLU to change its policy, saying that any effort to salvage campaign finance regulation in the wake of the Supreme Court ruling would face trouble “if the ACLU says it’s against the First Amendment.”

But a contrary view was expressed by another one of the invited attorneys, Floyd Abrams, who was one of the lawyers for the victorious side in Citizen’s United and who yesterday urged the ACLU not to change its position. Mr. Abrams warned that the organization would be allowing its political sensibilities to get the best of its principles.

“The worst thing you could do – the absolutely worst thing you could do – is transform a civil liberties organization into a liberal political organization,” Mr. Abrams, one of the most famous First Amendment laywers in the country, told the board.

Mr. Abrams pointed out that the ACLU had itself filed a brief in the Citizens United case on behalf of the side that ultimately won. “There will be some people who think you’re a little fickle for changing your policy three days after one of the greatest victories in this organization,” Mr. Abrams said.

Debate on the question of money and politics has been percolating within the ACLU for years, long before the Supreme Court handed down its decision in Citizens United. “It is difficult to think of an issue that has generated more internal controversy,” an internal ACLU memo states. In May 2009 an ACLU committee on campaign finance proposed reversing that position in favor of support for a “reasonable, carefully designed system of limitations on campaign contributions,” according to an internal memo.

Dissenters on the campaign finance committee submitted a report warning that the ACLU was about to “redefine our organization.” It was that memo which stated the ACLU “is facing a Skokie moment.” The decision to stick with its principles on Skokie, which led to a dramatic loss of membership within the ACLU at the time, is now a source of pride within the organization.