The ACLU Supports Campaign Finance Reform and Free Speech

This post originally appeared on the Huffington Post.

For an organization that works on issues as diverse as drones, women's rights, racial justice, war powers, immigration and flag burning, internal debates are inevitable and healthy. We welcome them. One of those long-standing debates has become more animated recently as the Senate considers a constitutional amendment that would empower Congress and the states to regulate even non-partisan political debate without regard for the First Amendment's freedoms of speech, assembly and petition.

In advance of a vote on the amendment, several former ACLU officials wrote a letter to the Senate criticizing the ACLU's current stance on campaign finance laws. Professor Geoffrey Stone penned a similarly critical blog here in support of the letter.

We have enormous respect for Professor Stone and our former colleagues, and we share many of their concerns about the integrity of our political system. We also agree that our campaign finance system needs to be reformed. For that reason, the ACLU supports public financing programs that provide candidates with resources to mount a meaningful challenge against wealthy opponents such as the matching dollar system in the Fair Elections Now Act. We support tailored disclosure requirements. We support stronger rules to ensure that outside political advocates are not illegally coordinating their activities with candidates. And we support reasonable limits on direct contributions to candidates.

But history has taught us to be wary of proposals that would empower the government to monitor, regulate, and ultimately criminalize political speech. For instance, with the McCain-Feingold bill in 2002, Congress made it a criminal offense for groups like the ACLU or Sierra Club to even mention a candidate in certain communications paid for by general treasury funds in the crucial run-up period to elections and primaries.

The constitutional amendment under consideration in the Senate is even broader in some ways. It would allow the federal and state governments to limit spending, including spending by private citizens, that lawmakers say could "influence elections." Even proponents of the amendment have acknowledged that this authority could extend to books, television shows or movies, such as Hillary Clinton's Hard Choices or a show like the West Wing, which depicted a heroic Democratic presidential administration during the crucial election years of 2000 and 2004. It could even reach the ACLU's letter to Congress on the amendment noting that all of its sponsors are Democrats (or independents who caucus with the Democrats).

Professor Stone suggests that restrictions on campaign-related speech are somehow less troublesome if they apply in a non-partisan fashion. Without doubt, it would be worse to pass a law that attempted to limit speech by Democrats and not Republicans, or vice-versa. It does not follow, however, that we can or should accept a regime in which the government gets to decide how much speech is enough in the political arena.

That problem is compounded, moreover, by the inherent difficulty in deciding what speech is campaign-related and thus subject to regulation. Take the common example of a newspaper ad that supports a legislative proposal that a candidate for office also supports. Does that ad support the pending bill or does it support the candidate? Is it intended to influence policy or an election? And do we really want government officials to decide when they may be prompted by ulterior political motives?

There really isn't that much blue water between Professor Stone, our former colleagues and the ACLU. They want more transparency around campaign funding. We want to be sure advocacy on important issues of the day remains unrestrained. These two goals are both worthy and not mutually exclusive, yet so much of the rhetoric suggests they are. It's time for advocates on all sides of the issue to talk with one another, not past one another.

In sum, this is a tough issue, but the desire to do something should not lead us to abandon core free speech values that have served us so well for more than two centuries.

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Anonymous

SJR 19:

"Section 3. Nothing in this article shall be construed to grant
Congress or the States the power to abridge the freedom of the
press."

The idea that newspapers would be censored by this is baseless. All this would do is stop multinational corporations and billionaires from dominating the political landscape. The ACLU would do well to remember that oligarchy and freedom have never gone together and never will. The for-profit prisons against which the ACLU (rightfully) crusades exist because they back "tough on crime" candidates with campaign donations. Attacks on the right to vote are driven by the Koch Brothers because they can fund ALEC that writes restrictive voting laws and have the funds to back candidates who restrict the right to vote.

Again, oligarchy and freedom do not go together and the ACLU should remain neutral on this issue. I would never ask it to support this amendment like Common Cause does--simply not get in the way. Money is not speech and the amount of it in elections should be limited so long, yes, as it is done in a non-partisan manner. I would support a Section 4: "Nothing in this article shall be used to favor one viewpoint over another" (or something similar--I'm not a legal expert).

Anonymous

"Even proponents of the amendment have acknowledged that this authority could extend to books, television shows or movies, such as Hillary Clinton's Hard Choices or a show like the West Wing, which depicted a heroic Democratic presidential administration during the crucial election years of 2000 and 2004."

Citation needed. All European countries have campaign finance and yet don't have widespread censorship.

Vicki B.

Oh my. Those brothers-who-must-not-be-named aren't going to like THIS idea, or article.
I WOULD use their names, but as they find a way to delete everything people who are poor as church mice say about them in any OTHER online forum I won't be using their names here. And anyway, wealthy brothers makes it OBVIOUS to whom I'm referring.
It's not like their industries in West Virginia didn't poison the water in the city *I* live in after it traveled 200 miles downstream and was detected in the water of the port of Cincinnati. After that, and how they took a cavalier attitude of the whole mess, I don't CARE what I say about them.
But they make sure any comments about them get deleted elsewhere - even if I use the must-not-be-named descriptor.
They obviously want everyone to live in terror of them. In the first Harry Potter book, she said to never be afraid of naming someone, because fear of saying a name gives the thing "more power than it deserves."
Well, those nasty brothers are deliberately going out of their way to make sure you never utter their names, especially if you're seen to be beneath them - and they think that way of everyone, I bet they even think it of the Walmart family.
So I'm not AFRAID to say the name but they're making sure it never comes across - I'm sorry but I don't believe that it's a coincidence that no matter where I go online and say their names in connection to naughty behavior, the statement just magically happens to be deleted every time. Without fail.

Frank Provasek

The concept of one person/one vote gets flushed down the toilet when there's one man with one vote and $100 million to influence the election. Sheldon Adelson, who spent that amount in 2012 to defeat Obama, would have had about a $10 billion smaller tax bill (for himself and his heirs) under Romney's proposed tax policy.

Anonymous

...and the Koch brothers were spending $100 million too, in order to defeat Obama and they STILL lost? What idiots.

Steve (who is n...

I'm a strong advocate for first amendment rights and I give to the ACLU, but I think they are wrong on this one.
Freedom of speech is not free. I can't go down to the TV station and ask for free airtime or charge it to my "freedom of speech visa card". By this measure, freedom of speech is only for those that can afford it. The theory of free speech is not born out in practice. I recently read a statistic that 93% of federal elections are won by the candidate with the most money and the vast majority of money is given by a very tiny percent of the US population. Ergo, my "freedom of speech" is non-existent. How is the ACLU protecting my freedom of speech?

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