Uncivil Liberties

ACLU ‘s argument that “money = speech” undermines democracy

By Jeffrey Kaplan 
Published March 29, 2006

Editor’s note: We were surprised to get some replies to this article accusing us of being anti-ACLU. To the contrary, we value the overwhelming majority of the group’s work and our advocacy work in defending civil rights overlaps regularly. Indeed, we have collaborated with various ACLU state chapters and regularly find ourselves working as allies far more often than as opponents at the national level to the Senate Judiciary Committee.

We simply think the national directors are badly misguided in arguing that corporations and wealthy individuals have a constitutional right to use their money to wield power over others. The matter is central to our mission of revoking corporate control of our country and the ACLU’s active opposition to that work is a significant barrier. We aim to provoke an open and constructive debate.

The American Civil Liberties Union seems to believe that not only does money talk, it has a First Amendment right to do so. In keeping with that highly dubious notion, the ACLU is attacking a Vermont law that limits contributions to political candidates and candidate spending in state elections. In a case now being considered by the U.S. Supreme Court, (Randall v. Sorrell) the ACLU argued the law conflicts with the infamous “money equals speech” doctrine first promulgated by the Court in its 1975Buckley v. Valeo ruling.

Editor’s note: The Court struck down Vermont’s expenditure limit and ruled $200-$400 limits on the amount that one person can donate to any individual candidate per election to be unconstitutionally low.

Although Buckley did allow restrictions on individual contributions, the Court struck down a law limiting the funds a candidate could spend on a national political campaign. Many critics think this decision has hamstrung serious attempts to keep wealth from being a dominant factor in elections.

In its amicus curiae (friend of the court) brief in Randall, the ACLU, like the justices inBuckley, offers up a legal argument that uses “speak” and “money” as if the words were interchangeable: “Above all else,” the ACLU brief (pdf) states, “the Court concluded inBuckley that ‘the First Amendment simply cannot tolerate [the] restriction upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy’ whether the source of his money is personal wealth or funds raised from legal contributions.”

The ACLU seems oblivious to the fact that there’s a profound difference between who we are (human beings with an inalienable right to self-expression) and what we may possess (money or other forms of property). Democracy is simply not sustainable in any society that confuses the second with the first.

The argument of the Buckley Court was more appropriate to plutocrats who believe they are what they own than to the ACLU, which declares on its website, “If the rights of society’s most vulnerable members are denied, everybody’s rights are imperiled.” The Court reasoned that limiting individual contributions was OK to prevent potential corrupting influence on a candidate, but declared limits on expenditures violated the First Amendment because it created an unjustifiable “restriction on the quantity of political expression.” The Court majority claimed to believe that a candidate’s war chest would be commensurate “with the size and intensity of the candidate’s support.”

Even 30 years ago, that was a dangerously narrow view, especially in light of the Court’s warning in the same decision against “naively” underestimating “the ingenuity and resourcefulness of persons and groups desiring to buy influence.”

Resourceful they have been. Jack Abramoff, now under indictment in the most extensive political corruption scandal in a generation, was a “Pioneer” for President Bush’s re-election campaign in 2004, channeling over $100,000 in individual donations from wealthy donors (those who funneled $200,000 or more were dubbed “Rangers”). The list of the other 548 people who raised $100,000 or more reads like a roll call for Corporate America. Of course, John Kerry’s campaign also relied heavily on such elites.

“Naïve” is too weak a word to describe the ACLU’s attempt to ignore the likelihood such donations had much more to do with business than expressing one’s beliefs. We should beware that criminal acts by the likes of Abramoff and Tom DeLay don’t distract us from the more subtle and completely legal corruption that keeps our representatives from actually representing most citizens.

The Buckley Court ‘s rationale for banning limits on spending by independent organizations that support a candidate was equally suspect. The Court claimed, “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” So would the Court would consider an ordinance prohibiting the use of bullhorns at town meetings an unconstitutional attempt to “enhance the relative voice” of those without them?

Unfortunately the people with bullhorns are gaining ever-more control. According to a recent Congressional Budget Office report, as of 2003 the top one percent of households in the United States owned 57.5 percent of corporate wealth — a staggering 50-percent increase from 38.7 percent just 12 years earlier. During the same time, the wealthy and their allies in Congress repeatedly cut taxes for themselves, while mostbudget cuts targeted the poor .

Though corporations have been banned from contributing directly to candidates for a century, we’re still dealing largely with corporate money here. The Bush campaign gave code numbers to their elite fundraisers, allowing corporate executives to ensure their company was duly credited for donations they solicited. That credit later can be redeemed for access to the administration, if not overt favors.

It is state-granted privileges that allow corporations to amass great power. Governments grant privileges benefiting investors, such as like limited liability and perpetual existence, based on the notion that society as a whole will benefit indirectly.

Democracy is at risk when we permit vast amounts of money accumulated through these privileges to buy power over the political process itself. Even a majority of Supreme Court justices recognized this problem in 1990 when they noted, “the corrosive and distorting effects of immense aggregations of [corporate] wealth … have little or no correlation to the public’s support for the corporation’s political ideas.”

Those corrosive effects run far deeper than any corruption scandal. According to testimony at state court hearings leading up to Randall v. Sorrell, “party and party leaders urged legislators not to oppose pharmaceutical interests for fear of being ‘shut off in the next election cycle from any contributions.’”

In other words, the money big donors withhold, not just money they give, helps keep legislators in line. The result is a “chilling effect” — a term the ACLU often employs — whereby certain policies are not even discussed for fear of alienating wealthy donors.

As one witness at a Vermont legislative hearing commented, “there’s an agenda out there that is pretty much set by folks that are not elected.”

The result is a well-founded sense of political disenfranchisement on the part of Vermont (and U.S.) voters. As one former legislator put it, many citizens don’t vote because “They think it’s all wrapped up and that the special interests control it and, quite frankly, they aren’t that wrong.”

It’s not the few overtly corrupt politicians that leave citizen feeling powerless, but the legal and unspoken bias of politicians toward large donors. As a Supreme Court amicus brief  by ReclaimDemocracy.org in Randall v. Sorrell states, “Decent people, after all, typically return courtesies with courtesies and favors with favors without keeping exact track or using quid pro quo calculations.”

In view of its ongoing denial of political reality, the ACLU’s position that the “power, even of a democratic majority, must be limited to ensure individual rights” is replete with irony. In this instance, what the ACLU is ensuring is the “right” of the moneyed minority to exercise political power commensurate with its wealth.

Nor is Randall an anomaly. The ACLU has a track record of helping wealth subvert democracy. In Nike v. Kasky, the ACLU supported Nike Corporation’s claim that its alleged lies about the abuse of Asian factory workers was constitutionally-protected “political speech.”

It’s not clear the ACLU’s advocacy for “corporate free speech” and against limiting the power of money in elections reflects members’ views or merely those of executive staff. Gregory Wonderwheel, a board member of the ACLU’s Sonoma County (CA) chapter has tried to provoke debate within the organization on these positions, but has found staff unresponsive. “The organizational leaders have their own opinions and don’t seem particularly interested in finding out how the grassroots members feel about this question,” said Wonderwheel.

The ACLU has been at the forefront of the legal struggle against the Bush Administration’s assaults on our civil rights and those efforts should be applauded. But given the increasing boldness of those attacks, it’s appalling the organization is diverting members’ donations to fight Vermonters’ right to govern themselves instead of focusing all available energy on those real threats to freedom.

It’s time ACLU members call on the leadership to stop undermining citizens’ right to self-governance and recognize the rights of human beings must take precedent over the power of property.

Jeffrey Kaplan writes for the San Francisco Bay Area chapter of ReclaimDemocracy.org.

Additional Resources

  • Find and contact your state ACLU chapter here to find out if they have a position on the issue and share your concerns.
  • An e-mail form to the ACLU national office is here.
  • To read the ACLU’s explanation on the closely related subject for why it argues for “corporate speech” to be protected by the First Amendment, and responses from ReclaimDemocracy.org, click here.
  • ReclaimDemocracy.org’s amicus brief in Randall v. Sorrell.

© 2006 ReclaimDemocracy.org