Is the ACLU Justified in Claiming That Limits on Political Campaign Contributions and Expenditures Compromise Free Speech?
The American Civil Liberties Union’s (ACLU) president, Nadine Strossen, stated in her June 12, 2001 testimony “Before the House Judiciary Subcommittee on the Constitutional Issues of Campaign Finance Reform Legislation”:
“[T]he McCain-Feingold bill… and its Shays-Meehan counterpart… are a recipe for political repression because they egregiously violate longstanding rights of free speech and freedom of association…
Under the reasoning of Buckley v. Valeo… the funding of any public speech that falls short of… ‘express advocacy’ is wholly immune from campaign finance laws. Speech which comments on, criticizes or praises, applauds or condemns the public records and actions of public officials and political candidates… is entirely protected by the First Amendment…. Contributions to issue advocacy campaigns cannot be limited in any way.
The bills unconstitutionally interfere with the first amendment rights of political parties… The justification for these limitations are the very similar ones used to restrict issue advocacy and, in fact, make it virtually impossible for parties to continue to engage in issue advocacy work such as grassroots educational activity, platform development, candidate recruitment and get-out-the-vote efforts.”June 12, 2001
The American Civil Liberties Union’s (ACLU) Executive Director Anthony D. Romero, stated in a Dec. 10, 2003 press release titled “Supreme Court Upholds Campaign Finance Law; ACLU Calls on Congress to Seek Real Solutions in Public Financing”:
“The notion that the government can tell an organization like the ACLU when and how it should address important civil liberties issues is a form of censorship masquerading as campaign finance reform… [The Supreme Court] decision [in McConnell v. FEC] will do far more to restrict political speech than to curtail the influence of money on politics… More speech should not be seen as a threat to our democracy, but sadly, that is the message of the Court’s decision.”Dec. 10, 2003
Nat Hentoff, columnist, in his Dec. 22, 2003 article for the Washington Times titled “Campaign Finance: Supreme Court’s Double Standard,” wrote:
“One part of this so-called ‘reform’ legislation greatly reduces the First Amendment rights of millions of Americans who want to express their views during the crucial period of national election campaigns through organizations that produce issue ads. But the new law does not limit the previous right of prodigiously wealthy Americans… to spend as much of their own money, without contributing to a political party or a candidate, on election advertisements as they like…
Most of us who are not that rich recognize that we have to amplify our views as a collective to get them heard. So, we join the National Rifle Association, the ACLU or other organizations. As our surrogates, they pay for ‘issue ads’ that are obviously most effective when broadcast on radio and television close to the date of a primary or general election.
The core of the First Amendment is our right to say what we think about the candidates when voters are likely to be most influenced… So, where in the Constitution do Justice Sandra Day O’Connor and her colleagues in the majority find greater First Amendment advocacy rights, as an election nears, for millionaires and billionaires than for the rest of us?”Dec. 22, 2003
Jonah Goldberg, National Review Online’s (NRO) editor at large, in his Dec. 11, 2003 column for NRO titled “The Wrong Kind of Censorship,” wrote:
“The Bipartisan Campaign Reform Act, better known as McCain-Feingold… regulates to whom, how, and when citizens — acting in concert or alone — can express their political opinions… The gist is: Groups like the National Rifle Association, the Sierra Club, the ACLU, and the NAACP will have a much more difficult time expressing their political views or criticizing politicians during an election season…
I’m against the ruling because it is precisely the kind of censorship the Constitution is supposed to limit to the maximum extent possible… [P]olitical speech is what the First Amendment is about… The First Amendment was first and foremost designed to protect the expression of overtly political speech, of criticism of the government and elected officials.”Dec. 11, 2003
Norman Dorsen, LLD, Jack Pemberton, LLB, Aryeh Neier, JD, Melvin Wulf, LLB, Burt Neuborne, LLB, John Powell, JD, Charles Morgan, Jr., LLB, John Shattuck, LLB, and Morton Halperin, PhD, all former ACLU Executives, wrote in their Mar. 22, 2001 “Statement of Persons Who Have Served the American Civil Liberties Union in Leadership Positions Supporting the Constitutionality of the McCain-Feingold Bill”:
“We are proud of our ACLU service, and we continue to support the ACLU’s matchless efforts to preserve the Bill of Rights. We have come to believe, however, that the ACLU’s opposition to campaign finance reform in general, and the McCain-Feingold Bill in particular, is misplaced. In our opinion, the First Amendment does not forbid content-neutral efforts to place reasonable limits on campaign spending and establish reasonable disclosure rules, such as those contained in the McCain-Feingold Bill… The current system of campaign financing makes a mockery of that ideal by enabling the rich to set the national agenda, and to exercise disproportionate influence over the behavior of public officials.”Mar. 22, 2001
Eugene Volokh, JD, Gary T. Schwartz Professor of Law at UCLA School of Law, in his Jan. 5, 2004 article for the National Review Online, titled “First Myths,” wrote:
“[R]estricting campaign contributions is not literally ‘abridging the freedom of speech.’ People are still free to speak. The law only limits their ability to give money to officeholders, candidates, and groups that are closely connected to them — just as federal rules have long limited people’s ability to give gifts to officeholders, for fear that such gifts might be implicit bribes.”Jan. 5, 2004
Thomas E. Mann, PhD, Expert Witness for the FEC in McConnell v. FEC, and Norman J. Ornstein, PhD, resident scholar at the American Enterprise Institute, wrote in their paper for the Mar. 2004 Election Law Journal’s special symposium issue on McConnell v. FEC titled “Separating Myth From Reality in McConnell v. FEC“:
“Nat Hentoff, in a post-McConnell column, said that citizens who rely on groups like the National Rifle Association or the ACLU as surrogates to amplify their views through ‘issue ads,’ would be stifled… Never mind that throughout its history before the passage of BCRA, the ACLU never had occasion to broadcast ads now caught in the net of electioneering communications. No speech is banned by the new law—not a single ad nor any word or combination of words would be or has been muzzled. The only new requirements relate to the disclosure and sources of funding for television and radio ads close to an election.”Mar. 2004
the Reclaim Democracy! group’s San Francisco chapter writer and researcher, Jeffrey Kaplan, in a Mar. 29, 2006 article titled “Uncivil Liberties – ACLU’s Argument That ‘Money=Speech’ Undermines Democracy,” wrote:
“The American Civil Liberties Union seems to believe that not only does money talk, it has a First Amendment right to do so…
Democracy is at risk when we permit vast amounts of money accumulated through these privileges to buy power over the political process itself… In other words, the money big donors withhold, not just money they give, helps keep legislators in line. The result is a ‘chilling effect’… whereby certain policies are not even discussed for fear of alienating wealthy donors…
It is not clear the ACLU’s advocacy for ‘corporate free speech’ and against limiting the power of money in elections reflects members’ views or merely those of executive staff.”Mar. 29, 2006