I’ve marched proudly behind the ACLU’s First Amendment flag for almost fifty years. On campaign finance reform, however, I believe the ACLU’s adamant opposition to limits on massive campaign spending by the superrich gets the constitutional issues wrong. Limiting the power of a few individuals and corporations that exercise disproportionate political influence solely because of their enormous wealth has nothing to do with censoring a speaker’s message; it is desperately needed to preserve the integrity of the egalitarian democracy the First Amendment was designed to protect.
The campaign finance mess rests on three erroneous arguments the ACLU advanced in the 1976 Buckley v. Valeo case before the Supreme Court: (1) that spending unlimited amounts of money in an electoral campaign is “pure” speech entitled to the highest level of First Amendment protection; (2) that any attempt to equalize political power by limiting massive electoral spending by the superrich is flatly unconstitutional; and (3) that “independent” expenditures on behalf of a candidate (as opposed to contributions to the candidate) are incapable of corrupting the democratic process. In 2010, in Citizens United, five Supreme Court justices made the Buckley system even worse by ruling that corporations have the same electoral free-speech rights as individuals, which unleashed a torrent of electoral spending by corporations seeking a financial return on their political investments.
I confess to having supported the ACLU position in Buckley. As the corrosive effects on democracy of uncontrolled campaign spending became increasingly clear, however, I joined several former ACLU leaders—Norman Dorsen, Aryeh Neier, John Shattuck and Mort Halperin—in opposing the organization’s campaign finance position. We have argued, before the Supreme Court and the ACLU board, that spending massive amounts of money during an election campaign is not “pure” speech when the spending level is so high that it drowns out competing voices by repeating the same message over and over at higher decibel levels; that a compelling interest in equality justifies preventing wealthy speakers from buying up an unfair proportion of the speech in settings like courtrooms, classrooms, town meetings, presidential debates and elections; that massive campaign spending by “independent” entities poses a serious risk of postelection corruption; and that corporations lack the attributes of conscience and human dignity that justify free-speech protection.
We’ll keep repeating those arguments. The shift of a single vote on the Supreme Court will make them law one day. But we needn’t wait for a new Court. The State of Montana has leveled a powerful challenge to Citizens United that is making its way to the Court. Since 1912, in an effort to shield its democracy from a takeover by out-of-state mining interests, Montana has banned corporate political spending. When the Montana Supreme Court recently stubbornly upheld the corporate electioneering ban in the teeth of Citizens United, corporations asked the US Supreme Court to overturn the Montana Court without a hearing. Instead, the justices temporarily stayed the Montana law and invited the parties to file papers discussing whether the case should be accepted for full-scale review. In reluctantly voting to stay the Montana statute even temporarily, justices Ruth Bader Ginsburg and Stephen Breyer asserted that Citizens United should be reconsidered because massive “independent” spending in the 2012 presidential election has undercut the assumption that such spending is incapable of corrupting democracy. The absurdity of the fiction that election winners will ignore huge debts owed to wealthy supporters who have spent millions to get them elected is now apparent even to the Supreme Court. In Caperton v. A.T. Massey Coal Co. (2009), the Court recognized that massive independent spending by a litigant to elect a member of the West Virginia Supreme Court risked influencing his postelection rulings, requiring the judge to step down in cases involving his electoral sugar daddy. Step one in untangling the current mess is persuading the Supreme Court that in light of the experience in the 2012 presidential election, unlimited independent campaign expenditures pose a significant risk of postelection corruption of elected legislators and executive officials, as well as elected judges.
Second, in Citizens United Justice Anthony Kennedy responded to the argument that corporations lack the attributes of conscience and human dignity needed for free-speech protection by insisting that First Amendment protection does not depend on the speaker’s identity. As long as a speaker is generating speech of value to voter/hearers, Kennedy argued, the speech itself enjoys protection. Like Yeats (and the Eagles), Justice Kennedy declined to separate “the dancer from the dance.” The Court has swept away that prop for Citizens United. In Bluman v. FEC, a Canadian graduate of an American law school working at a New York law firm and an Israeli citizen working as a medical resident argued that the Congressional ban on independent electoral spending by lawful resident aliens violates the First Amendment. In January all nine justices rejected the resident aliens’ First Amendment claim without even issuing an opinion. Frankly, it isn’t surprising that the justices disposed of Bluman without an opinion. You just cannot write a principled opinion distinguishing corporate speakers from resident alien speakers without jettisoning Kennedy’s insistence that the speaker’s identity doesn’t matter. Step two in untangling the campaign finance mess is to recognize that after Bluman, the identity of the speaker matters a good deal. Bluman makes it much easier to question whether corporations, lacking the attributes of human dignity, should be treated as protected First Amendment speakers, especially when more than a century ago the Supreme Court denied them the Fifth Amendment right to remain silent in Hale v. Henkel, precisely because corporations lack the attributes of human dignity.
Finally, Kennedy’s Citizens United opinion rested on the assumption that voters would know who was bombarding them with corporate electoral speech. But disclosure laws are riddled with loopholes permitting huge electoral spenders—corporate and human—to avoid or delay disclosure. Citizens United does not forbid plugging the loopholes, but it has proven impossible to persuade cash-addicted politicians to go cold turkey on secret cash. Since both Buckley and Citizens United were premised on protections provided by imaginary full-disclosure rules that will never be enacted, step three in fixing the mess is to persuade the Court that unless and until full disclosure is attained, the contingent rights described in Citizens United should not exist.
So, here’s a modest proposal for our friends at the ACLU from its past leaders. Join us in filing a Supreme Court brief supporting Montana’s right to shield its democratic processes from corporate takeover. Almost forty years of experience teaches that the ACLU’s campaign finance policies are well intentioned but mistaken. It takes a truly great organization to admit a mistake. But then, the ACLU is a truly great organization.