The American Civil Liberties Union (ACLU) is nothing if not a stalwart against any form of encroachment on the First Amendment right to free speech. Their mission of defending the right of all people to give voice to even the most outrageous of opinions is both honorable and admirable. But this singular obsession can also lead the ACLU into a position of absolutism that is neither socially relevant nor constitutionally valid.
The written testimony the ACLU provided to the Senate Judiciary Committee on the occasion of the Committee’s hearing on the campaign finance amendment proposed by Senator Tom Udall (D-NM) is an illustration of a mission gone astray. Contrary to what the American people have come to expect from the ACLU, the statement is riddled with factual errors, hyperbolic suppositions and fear-mongering rhetoric that is beneath an organization of such gravitas. The first paragraph sets the disappointing tone.
“The American Civil Liberties Union strongly opposes S.J. Res. 19, a proposed constitutional amendment, sponsored by Sen. Tom Udall (D-NM), that would severely limit the First Amendment, lead directly to government censorship of political speech and result in a host of unintended consequences that would undermine the goals the amendment has been introduced to advance—namely encouraging vigorous political dissent and providing voice to the voiceless, which we, of course, support.”
While The Amendment Gazette does not support the Udall proposal, it is far from the kind of language that has the capacity to “severely limit the First Amendment.” The language of the proposal is actually quite weak in that it is narrowly focused on contributions and expenditures directly related to candidates for elected office. It would not empower the Congress to regulate spending on issue advocacy or speech that doesn’t explicitly call on people to vote for or against a candidate. It would not empower the Congress to sanction speakers that are deliberately misleading or deceptive. Even though it would empower regulation of spending by independent groups purchasing media space in express advocacy for or against a candidate, it would not empower Congress to limit donations to groups that do more than just place campaign ads and send mailers to voters.
In stating that the Udall proposal would “lead directly to government censorship,” the ACLU has accepted the false premise that the amount of money spent on propagating speech is identical to the content of that speech. The ACLU defends flag burning as a form of free expression. However, if a group brought enough flags to set a city block alight, that form of expression would be outweighed by the right of the residents and property owners to be safe from the resulting fire. We can’t regulate the content but we can regulate the amount. The right of a person to falsely shout “fire” in a crowded theater is outweighed by the right of the audience to be safe from injury in a resulting stampede. In the same way, the right of the electorate to hear from a variety of speakers outweighs the right of any one speaker to drown everyone else out. Just as the theater experience belongs to everyone in the audience, our political process belongs to all of us, not just the highest bidders.
The ACLU’s stated support of “giving voice to the voiceless” is in direct conflict with its support of the ability of a select few wealthy individuals and organizations to drown out the voices of the the vast majority of the American people, irrespective of partisan affiliation. It is beyond absurd to imagine that “the voiceless” includes billionaires and super PACs. In suggesting that an attempt to modify the outsized influence of the well-heeled in our political process is in any way an infringement on a “voiceless” minority, the ACLU proves that it is both stunningly out of touch with reality and, even more shocking, woefully out of step with the balancing act of liberty enshrined in the Constitution. There are no absolute rights. Full stop. Every person’s rights end where other people’s rights begin and balance has always been the issue, since the founding of the Republic, not some theoretical absolutism that assumes one constitutional right trumps all others. It is legally, constitutionally, factually and rationally suspect to suggest otherwise.
The ACLU also fails to understand American history:
Were it to pass, the amendment would be the first time, save for the failed policies of Prohibition, that the Constitution has ever been amended to limit rights and freedoms.
That is patently false. Prior to the Civil War and the ratification of the Thirteenth Amendment, it was considered a constitutional right for white men to own other human beings. The Thirteenth Amendment didn’t just abolish slavery, it diminished the rights of white men who owned or wanted to own other human beings. Liberty is a two-way street. Protecting the rights of one group often necessitates limits on the rights of another group. While the people who don’t own or control corporations are not in the same category as slaves, the dynamic at play within the Constitution is similar. In order to protect the rights of the vast majority of Americans who do not have the wealth and power of a corporation under their control, the state-created corporate entity itself must be curbed. That’s how liberty works. That’s how the Constitution was originally constructed and that’s what the ACLU is so studiously ignoring in their letter.
How Does the ACLU Hate Thee, Let Them Count the Ways
In their letter, the ACLU lists seven “hypotheticals” that could arise as a result of the ratification of SJR-19:
1. Congress would be allowed to restrict the publication of Secretary Hillary Clinton’s forthcoming memoir “Hard Choices” were she to run for office.
In a footnote to this false hypothetical, the ACLU also misrepresented the government’s case in the Citizens United decision:
Granted, there would likely [be] a First Amendment challenge to a government restriction on a book based on the press clause, but the government admitted, freely, that the law at issue in Citizens United, which would be permitted again under the Udall amendment, applied to full length books like campaign biographies. Then-Solicitor General Kagan did note that the FEC had never attempted to regulate publication of a book, and that an as-applied challenge would be available to the aggrieved publisher, but nevertheless argued that the government could conceivably restrain publication of a book supporting or opposing a candidate, including, potentially, one written by the candidate herself.
It was U.S. Code Title 2, Section 441b, which regulates “contributions or expenditures by national banks, corporations, or labor organizations,” that was at issue in the particular exchange cited by the ACLU. The point then-Solicitor General Kagan made was that 441b could, theoretically, apply to a book if a case could be made that the entire book represented “express advocacy” of a particular candidate, as stipulated in the law. However, she also made the point that 441b had never in its 60 years in the U.S. Code been applied to a book because book-length speech is almost impossible to be construed as “express advocacy” in its entirety. The exchange the ACLU ignored:
GENERAL KAGAN: One cannot imagine very many books that would meet the definition of express advocacy as this Court has expressed that.
CHIEF JUSTICE ROBERTS: Oh, I’m sorry, we suggested some in the last argument. You have a history of union organizing and union involvement in politics, and the last sentence says in light of all this, vote for Jones.
GENERAL KAGAN: I think that that wouldn’t be covered, Mr. Chief Justice. The FEC is very careful and says this in all its regulations to view matters as a whole. And as a whole that book would not count as express advocacy.
CHIEF JUSTICE ROBERTS: Thank you, General.
In other words, a book would have to be constructed as a campaign ad from start to finish for it to be qualified as “express advocacy.” Nobody has written a book-length campaign ad ever. But if such a book were to be written, there is no reason to treat it as anything but a campaign ad, which would empower the FEC to restrict its publication within the 30 and 60 day windows defined in the Bipartisan Campaign Reform Act of 2002 [U.S. Code 434(3)(A)]. Anyone wishing to publish such a book would still be free to do so outside of the time windows stipulated in the BCRA, which means any of the more than 600 days remaining in any given election cycle. Any amendment that allows 441b to come back into force is not even remotely empowering the Congress to “ban books.”
2. Congress could criminalize a blog on the Huffington Post by Gene Karpinski, president of the League of Conservation Voters, that accuses Sen. Marco Rubio (R-FL) of being a “climate change denier”
There is no language in SJR-19 that addresses the content of speech in any medium. There is no one in the amendment movement who advocates for content-based restrictions on political speech. This is another example of the ACLU advancing the false premise that regulating the amount of money that can be spent to promulgate political speech is identical to restricting content that a majority in Congress dislikes. Volume is not content.
3. Congress could regulate this website by reform group Public Citizen, which urges voters to contact their members of Congress in support of a constitutional amendment addressing Citizens United and the recent McCutcheon case, under the theory that it is, in effect, a sham issue communication in favor of the Democratic Party.
SJR-19 deals only with the raising and spending of money (and in-kind equivalents) used to amplify political speech. It does not empower Congress to restrict content in any way. A website is a relatively inexpensive means of communication. The limits that Congress sets would have to be so low as to destroy the entire national campaign apparatus for a website to run over such limits. If, however, Public Citizen wanted to spend millions of dollars promoting their website on TV, Congress could and should have the power to regulate the amount of money Public Citizen (along with everyone else) could spend to amplify its message on the public airwaves (which is everything that uses the publicly-owned spectrum of electromagnetic frequencies to send a signal, including satellite-based services).
There is both a limited amount of commercial time and public attention span for political messages on radio and TV, just as there is a limited amount of time for Congress to debate a given bill. Congress guarantees equal time to both sides in their floor debates. It’s impossible to do the same for all potential speakers in political campaigns or policy debates in the general public. We cannot guarantee that the opponents of Public Citizen will have the same amount of time on the airwaves to promote their opposition to Public Citizen’s viewpoint, but we can and should prevent Public Citizen, and any other group or individual, from flooding the airwaves promoting their political opinions to the extent that their opponents are unable to raise and spend enough money to compete.
4. A state election agency, run by a corrupt patronage appointee, could use state law to limit speech by anti-corruption groups supporting reform.
Same conflation of volume with content in a different package. No matter how many times or ways they say it, the ACLU will continue to be wrong.
5. A local sheriff running for reelection and facing vociferous public criticism for draconian immigration policies and prisoner abuse could use state campaign finance laws to harass and prosecute his own detractors.
Since when do local sheriffs enforce campaign finance laws? The FEC isn’t running around the country deputizing local law enforcement. This is an utterly meaningless statement full of paranoid fear-mongering that is 100% baseless and beneath the dignity of the ACLU.
6. A district attorney running for reelection could selectively prosecute political opponents using state campaign finance restrictions.
District Attorneys already selectively prosecute groups and individuals. That is an issue of allowing the highest law enforcement official of a state to operate in a partisan manner. It’s one thing to selectively prosecute people caught in possession of drugs, another to selectively prosecute political operators. One gives the appearance of being tough on crime, which usually enhances a political image, the other gives the appearance of being a cheater, which is just as likely to backfire with the voters. Selective prosecution is a problem that requires serious thought and reform but it’s a much bigger problem in most other areas of law, from street crimes to environmental crimes, and raising it as an issue in this context is truly missing the forest for the trees.
7. Congress could pass a law regulating this letter for noting that all 41 sponsors of this amendment, which the ACLU opposes, are Democrats (or independents who caucus with Democrats).
No, it couldn’t. Once again, conflating volume with content. The only way the ACLU’s letter could be restricted in any way is if Congress enacted limits on the amount of money that could be spent on lobbying Congress (a highly unlikely scenario to begin with) and the cost of creating the ACLU letter exceeded those limits. While I’m sure the ACLU leadership is paid very well for their services, it would be unlikely that the percentage of their salaries that accounted for the time spent generating the ACLU letter would exceed any threshold set by Congress. Maybe if they mailed the letter using a very expensive stamp?
As atonement for their egregious misrepresentation of the Udall proposal, their maligning of the movement to overturn Citizens United (et al) by constitutional amendment and their absolutist interpretation of the First Amendment, the ACLU leadership should write the following phrase on a chalkboard ten thousand times, or until the meaning finally penetrates their logic, whichever comes last:
Why the ACLU Is Wrong About ‘Citizens United’ by Burt Neuborne (Former ACLU National Legal Director)
Constitutional Amendment Debate Roils ACLU by Eliza Newlin Carney (Roll Call)