[From the editor (Eugene Volokh): Here’s an interesting excerpt from a forthcoming e-book by Profs. Ronald Collins & David Skover, ”When Money Speaks: The McCutcheon Decision, Campaign Finance Laws & The First Amendment”, the first in the SCOTUS Books-in-Brief series. The e-book will be available shortly after the Supreme Court issues its ruling in McCutcheon v. FEC. The excerpt first appeared in this SCOTUSblog post.
You can also read the ACLU Board of Directors’ April 19, 2010 letter on campaign finance laws and free speech, and the National ACLU Legal Director’s reply to Collins & Skover, as well as Collins's & Skover's further rejoinder. The forthcoming e-book will include an extended discussion of the ACLU matter along with a listing of the 14 ACLU briefs filed in the Supreme Court in campaign finance cases plus the eight filed by former ACLU officials.]
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In 2013 the American Civil Liberties Union did not file an amicus brief in McCutcheon v. FEC, the First Amendment campaign finance case now awaiting a decision in the Supreme Court. But the group had not always been silent on the issue. Quite the contrary; it had once been quite vocal in its First Amendment opposition to many campaign finance laws.
For decades the ACLU had been at the forefront of this controversial issue, filing merits and amicus briefs in support of First Amendment claims in such landmark campaign finance cases as Buckley v. Valeo (1976) (Joel Gora, counsel of record) and Citizens United v. FEC(2010) (Steven R. Shapiro, counsel of record), among many other Supreme Court cases. That changed, however, after Citizens United came down. At that pinpoint in time, the past ceased to be prologue.
The Nixon years
The ACLU story in this fight goes back forty-plus years to a time when Richard Nixon’s Justice Department used the Federal Election Campaign Act of 1971 (FECA) to silence and punish its critics. At first, the ACLU’s role was that of providing free legal counsel to those critics — for example, there was the district court case titled United States v. National Committee for Impeachment, 469 F.2d 1135 (2d. Cir. 1972). Soon enough, the group took a bolder stand — it decided to be a named plaintiff in a case contesting certain provisions of FECA. That case: American Civil Liberties Union, Inc. v. Jennings, 366 F. Supp. 1041 (D.D.C. 1973), vacated sub nom., Staats v. ACLU, 422 U.S. 1030 (1975). (Aside: Floyd Abrams filed an amicus brief in that case on behalf of the New York Times.) Those two cases marked the beginning of a long legal journey for the ACLU, one in which it was an ardent defender of First Amendment rights. It all began with opposition to the Nixon Administration.
“Three old-time dissenters came to the ACLU offices in New York with an incredible story,” recalled Professor Gora in a 1997 article. “In September of 1972 the group had run a two-page advertisement in the New York Times advocating the impeachment of President Richard Nixon for the bombing of Cambodia and praising those few hardy – and clearly identified – members of Congress who had sponsored an Impeachment Resolution.” The “advertisement was turgid, wordy, legalistic, and not very slick, but it embodied the essence of what the First Amendment stands for: the right of citizens to express their opinion about the conduct of their government, free from fear of sanctions or reprisals from that government,” noted Gora. “Nonetheless, before the ink on the advertisement was barely dry, the federal government had hauled the group into federal court.”
All of this occurred despite the fact that such speech would otherwise seem to be protected by the Court’s landmark First Amendment rulings in New York Times, Inc. v. Sullivan (1964) andBrandenburg v. Ohio (1969), both of which offered considerable protection for those who criticized government officials. Those rulings notwithstanding, Richard Nixon’s Justice Department tapped FECA to wage war on the Administration’s liberal critics.
Using campaign finance laws to silence liberals
“The government,” Gora added, “claimed that the expenditure of funds on the advertisement was for the purpose of influencing the outcome of the elections, thus rendering these individuals a political committee. The government threatened them with injunctions against further speech unless they complied with the law, filed reports with the government, and disclosed their contributors and supporters. All of this was for simply sponsoring an advertisement publicly criticizing the president of the United States on a crucial issue of the day.”
In order to test the use of FECA to censor political speech, in May 1972 the ACLU submitted to theNew York Times a proposed political ad expressing its stern disapproval of the Nixon Administration’s opposition to court-ordered busing. Fearful of criminal prosecution under FECA, the Times declined to run the ad, whereupon the ACLU went to the federal district court in the District of Columbia seeking declaratory and injunctive relief. The court granted the motion for a preliminary injunction, which allowed the Times to publish the ad. That case was American Civil Liberties Union, Inc. v. Jennings.
The other case, United States v. National Committee for Impeachment, involved a political ad that ran in the Times in September of 1972. That piece was titled: “A Resolution to Impeach Richard M. Nixon as President of the United States.” It was worded as an impeachment resolution similar to the one brought against President Andrew Johnson. Nearly half of the ad charged that Nixon unconstitutionally “arrogated to himself the power to declare war and the power ‘to make Rules for the Government and Regulation of the land and naval forces,’ which are committed by article I, section 8, clauses 11 and 14 of the Constitution solely to the Congress.” Among other things, the ad also contained two contributions coupons, which appeared at the bottom of the page. Nixon’s Justice Department claimed the ad violated FECA’s certification requirements. Those requirements barred the solicitation and acceptance of contributions unless and until certain detailed and complicated filings had been submitted to the government.
The ACLU and the Committee ultimately prevailed in their respective cases, though on different legal grounds. The spirit of those victories is captured in the following statement from the opinion in theJennings case: “Groups concerned with the open discourse of views on prominent national issues may . . . comfortably continue to exercise these rights and feel secure that by so doing their associational rights will not be encroached upon.”
At that time, several years before the Court’s seminal ruling in Buckley v. Valeo, liberals opposed the government’s use of federal campaign laws while conservatives applauded it. Back then, and for many years afterwards, the ACLU was at the vanguard of defending what it saw as revered First Amendment principles against the evils of certain campaign reform laws. Time, however, changed that.
Division in the ranks
Fast-forward nearly three decades: the news broke in the Washington Post on June 19, 1998. Here is how it began: “There’s been a major breakthrough in the battle to reform the campaign money system,” wrote E.J. Dionne. “As the House of Representatives joined a bitter debate this week over a measure to fight some of the more egregious campaign abuses,” he added, “a group of luminaries from the American Civil Liberties Union has broken with the organization’s opposition to the principles underlying the bill.”
There was division in the ranks and it had become public. “In a statement that will be formally released in the next few days,” the article continued, “the nine leaders — among them, former ACLU president Norman Dorsen, former executive director Aryeh Neier, former legal director Burt Neuborne and former legislative director Morton Halperin — dispute the ACLU’s view that placing ‘reasonable limits on campaign spending’ violates the First Amendment.”
A tradition had ended. While the ACLU continued to file briefs defending First Amendment claims in campaign finance cases, after 1998 former ACLU officials filed briefs opposing many such First Amendment challenges to campaign finance laws. That conflict continues to this day.
Perhaps that division in the ACLU explains why it did not file an amicus brief in McCutcheon. For some, that fact was shocking. For others, it was a welcome relief.