Though the Supreme Court gave the left a series of resounding victories last week, one of the nation’s leading legal groups is increasingly looking beyond Washington and the courts to advance its agenda. Over the last eight months the American Civil Liberties Union has raised $80 million to launch a political-advocacy project with the aim of winning civil-liberties fights by taking them directly to voters at the state level.
To lead the strategic shift the ACLU has hired political consultant Karin Johanson, who most recently served as the campaign manager for the Coalition to Stop Fast Track, an alliance of labor unions and other groups. Johanson helped the Democrats retake the House in 2006 when she was executive director of the Democratic Congressional Campaign Committee, and she managed Tammy Baldwin’s successful campaign for a Senate seat in 2012.
In the short term the ACLU’s political arm will focus on leveraging bipartisan momentum around criminal-justice reform and LGBT equality, and push for ballot initiatives on those issues in a handful of states. The initiative strategy is what advocates for legalized marijuana have used in recent years to skirt hostile or timid legislatures, with notable success. It also worked last year in California, where voters passed a measure reducing penalties for low-level offenders, which could lead to the resentencing of thousands of people who are already in prison.
On Monday I spoke with ACLU executive director Anthony Romero about how the organization is responding to changes is the political and legal landscape, working with the Koch brothers, and the opportunities for advancing civil liberties in the states. “Litigation in federal courts has become much more challenging over the last 25 or so years,” Romero said. “So you need to diversify the portfolio of strategies, so you’re lobbying state legislators, you’re running ballot initiatives—not just playing defense but going on offense.”
The conversation has been edited for length and clarity.
Zoë Carpenter: Why launch an advocacy project now?
Anthony Romero: It’s not an entirely new departure for us. The ACLU from its founding was always an advocacy organization. Our c(4) [nonprofit] is 95 years old, so it’s the original mothership. It’s always been the role of the ACLU to, with non-tax exempt dollars, roll an agenda forward on civil liberties and civil rights. The tax deductible arm that houses a lot of the litigation came later, in the 70s.
But now we’re doubling down on our political work because of the gridlock in Washington, DC, because we can’t put all of our eggs in the litigation basket, and because there’re real opportunities in the states to move an affirmative agenda forward, and a need to hold a line on certain key civil-liberties issues in the states. This is an important opportunity for us to really build a much more muscular, proactive political game in the states than we’ve ever had before.
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What are the specific opportunities that you’re targeting?
On the affirmative front, we see opportunities in the areas of mass-incarceration and LGBT equality. Both are issues that have gained support across Republican and Democratic parties; there’s growing public consensus on both issues, and where, frankly, our laws trail public opinion.
In the aftermath of the Supreme Court decision on same-sex marriage, we’re going to have to bring affirmative efforts in the states to pass nondiscrimination laws. It’s now the law of the land that you can get married anywhere on Sunday, but you can get fired from your job on Monday because you married a same-sex partner. Clearly, that needs to change. We need to enact anti-discrimination laws at the state level that fulfill the promise of the Supreme Court decision on same-sex marriage.
On mass incarceration we now see a growing bipartisan consensus that we spend too much money on criminal justice, that we incarcerate too many people, and that we have to fundamentally rethink crime and punishment in America. So, look at sentencing reform, look at the need for lessening the criminal penalties for nonviolent drug offenses and nonviolent property crime, for developing a smarter approach to people with mental-health and addiction problems that does not involve the criminal-justice system. We think that with the confluence both among Republicans and Democrats, there’s a real opportunity now to repeal some of the very draconian criminal-justice statutes that have been put in place.
A few people have pointed out that to get big reductions in the prison population—to hit that 50 percent target—you have to look at sentencing reform for violent offenders. Is that something that’s on the table?
It’s definitely something we’re looking at. It may be something we come later to. In order to deal with the goal of cutting the incarcerated population by 50 percent, you have to tackle some of the violent crimes. And we clearly can provide a much more nuanced and analytic approach to violent crime, especially when you deal with individuals who perhaps committed violent crimes because of mental illness or drug or alcohol addiction. You have to look at the broader extenuating circumstances. You have to look at diversion programs, some of the treatment programs that could be put in place. We would be missing the boat if we only looked at the low-hanging fruit. So we should also look at some of the tougher classification of felons.
Are you skeptical at all of having people like the Koch brothers involved in the reform coalition?
No. I think the Koch brothers provide an important set of perspectives on mass-incarceration reform. I think the fact that they come from deeply within the Republican Party will allow advocates like us to bring along members of state legislatures, and members of the Congress, who won’t often agree with us. I think the fact that the Koch brothers have voiced this interest in sentencing reform, for de-incarceration, for criminal-justice reform writ large, just speaks to the opportunities that are before us. If we keep this to a coalition or alliance of the like-minded, we won’t have nearly the impact that we can have if we work with individuals that we don’t always agree with. Their ability to help move an affirmative agenda in places like Missouri, Arizona, Oklahoma, Arkansas, Georgia, where you have to work with the Republican Party and within conservative circles, is critically important.
Are those the states that you’re looking at right now for ballot measures?
We’re looking at about a dozen states, and those are some of them. We’ll make a decision later in the fall about which states we drop affirmative ballot referenda in. It’ll be a handful of states, two or three, depending on how the poll numbers come back.
You’ve got to put points on the board, so you’ve got to start where you can win. But you don’t want to pick only the easy places because that doesn’t build momentum. You want to go to places where there’s an “aha” moment: “Wow, if they can pass sentencing reform inblank state, then it’s possible in many other states.” But you want to make sure you lead with a strong beginning. Already we have a beginning with the Prop 47 initiative in California. That’s the one that reclassified about a dozen former felonies as misdemeanors retroactively. Admittedly, it’s California, but it even did well in Republican counties.
In terms of the LGBT anti-discrimination measures, do you imagine those being done through ballot initiatives as well?
In some of the states they’ll have to be ballot measures, because the state legislatures are incredibly hostile to LGBT rights, so the only way to go around the roadblocks we encounter is through referenda. In some states it might be through a legislative battle, but that might be a bit more protracted.
Now begins phase two of the LGBT struggle for equality. We have to go beyond the right just to marry. We have to deal with making sure we have a right to live free from discrimination in the employment, the housing, and the public-accommodations contexts. That’s going to require years of advocacy, to make sure that we have full formal equality in every sphere of life for LGBT individuals. Luckily, we have a lot to work with now from this recent Supreme Court case.
You said earlier that you can’t put all of the eggs in the litigation basket. Is that because something has changed about the court system? What’s happened to make that strategy less effective?
Litigation in federal courts has become much more challenging over the last 25 or so years. The federal courts are no longer as hospitable to civil-rights or civil-liberties litigation as they once were. We can still win, of course—we made that point in the recent same-sex marriage case. We can still win in certain contexts and certain places, but you can’t rely on litigation as the be-all and end-all to gaining civil rights and civil liberties. Increasingly we find the courts are hostile in some areas, like abortion, like voting rights, like immigrant’s rights. So you need to diversify the portfolio of strategies, so you’re lobbying state legislators, you’re running ballot initiatives—not just playing defense but going on offense, working with the different executive branches, from governors and the presidential level.
Congress is increasingly a place where so little gets done. The gridlock in Washington, DC, is suffocating, and it’s not likely to get any better as we gear up to a presidential election in 2016. So a lot of what we have to do is redirect our lobbying efforts from Congress. We still have to make sure they do as little harm as possible, but if you really want to get some things done you have to move to the states.
So what happens to the fight for civil liberties that don’t have a lot of bipartisan support? There’s so much energy focused on LGBT rights and criminal-justice reform, but in other ways we’re backsliding—on abortion, for example.
Sure, you’re right. In places where you can win—I would say the privacy debate, or the mass incarceration debate, or on LGBT rights—you use both litigation and political work to move the agenda forward. In places where the legislative bodies are hostile to the rights of certain groups, whether its immigrants’ rights, voting rights, or abortion rights, you’ve got to continue to use the courts. At this point our strategy on reproductive choice is very litigation-focused because the courts are the final bulwark to making sure that women have a right to terminate a pregnancy when and if they want. Even though we’ve had a hard time in some of the state and federal courts in recent years, the boldness of the assault on choice gives us an opportunity to raise the very basic legal questions in court. So in the places where the issues don’t garner the same kind of bipartisan support, you’ve got to fight a defensive game in the legislature and you’ve got to use the courts aggressively.
That’s why it’s been so critical for us to hire someone like Karin Johanson. She comes to us with more than 30 years experience running political campaigns, electoral campaigns, issue-based campaigns. To take this savviness that she’s developed from EMILY’s List, from the Democratic Congressional Campaign Committee, from Tammy Baldwin for US Senate, and to deploy that experience to develop an affirmative and aggressive political campaign for civil liberties, will be critically important.
