Maybe This is a Bad Time but the ACLU Really Blew It on Campaign Finance

Last Wednesday, the United Talent Agency, home to A-listers like Harrison Ford, Angelina Jolie, and Amy Schumer, announced it was cancelling its long-awaited Oscars party and instead donating $250,000 to the American Civil Liberties Union (ACLU). The action was meant as a symbol of resistance against President Donald J. Trump.

By now, everyone is aware of the special place the ACLU holds in the hearts of people on the left. According to The Washington Post, after President Donald Trump’s victory in November, the ACLU has received over $15 million. This groundswell of support continued following his first week in office, during which he signed several controversial executive orders, including new travel restrictions on individuals entering the United States from seven predominantly Muslim countries, for which the ACLU filed a lawsuit against the administration. All told, this past weekend, the civil rights group received over $24 million, which, as The Post reports, is over six times its yearly average.

It makes sense too. Donald Trump has not exactly inspired confidence that he will not single out minority groups in his effort to rally voters, and the ACLU’s reputation for protecting disenfranchised peoples precedes it. It was just a few short years ago, in 2013, when the group took on the National Security Agency (NSA) over the latter’s “unconstitutional” domestic spying program involving the collection of Americans’ phone metadata. The left cheered, as it is doing once again.

But something now needs examination in light of the fact hundreds of thousands of people are looking for groups which will fight on the front lines and #resist Trump: the role the ACLU played in creating the conditions that led to the President’s election—namely an unresponsive government beholden to economic elites.

Most Popular

The ACLU has been a key and consistent player in the dismantling of the federal regulatory framework for campaign finance. It has been a party on the winning side in both the 1976 case of Buckley v. Valeo and the 2010 case, Citizens United v. FEC which respectively established the controversial principles that spending money is a protected form of speech and that corporations and unions were entitled to the same speech rights as private citizens.

Since these decisions, the influence of money in our political system has grown significantly, with congressmen dedicating virtually half of their time fundraising. A nonpartisan study from 2014 of the past four decades since Buckley found that policy outcomes are driven by the demands of the economic elite rather than popular will. Critics have criticized the methodology of that study, only to find that their own research confirms the overall premise that the US has become an oligarchy. The demands of the elites outweigh the will of the people.

And in our oligarchy, money is not only incredibly influential, but also incredibly difficult to trace. Thanks to Citizens United, even foreign governments can get in on the action by using dummy corporations. An example of how this becomes a real problem for transparency is when said dummy corporation is a 501©(4) nonprofit, a type of nonprofit able to keep its donors hidden. These corporations can also hire federally registered lobbyists, which mandates disclosure. Of course, anyone really bent on circumventing that disclosure requirement can retain de facto lobbyists who take advantage of the Daschle Loophole, thus falling just shy of the legal definition of what a lobbyist is. All told, our campaign finance laws are now so porous there is no way of knowing how much money foreign governments spend in our elections thanks to that fateful 2010 Supreme Court decision.

And yet, when faced with criticism a few years ago, the ACLU stood by its position. There’s a disingenuous statement on their website arguing the solution to the rising oligarchy is more money for candidates, more enforcement of the few rules still in place—rules which are difficult to enforce with Buckley on the books—and more transparency:

In our view, the answer to that problem is to expand, not limit, the resources available for political advocacy. Thus, the ACLU supports a comprehensive and meaningful system of public financing that would help create a level playing field for every qualified candidate. We support carefully drawn disclosure rules. We support reasonable limits on campaign contributions and we support stricter enforcement of existing bans on coordination between candidates and super PACs.

Incredibly, in defense of its assessment, the ACLU makes the case that the “loopholes” discovered since Buckley prove regulation won’t work:

Some argue that campaign finance laws can be surgically drafted to protect legitimate political speech while restricting speech that leads to undue influence by wealthy special interests. Experience over the last 40 years has taught us that money always finds an outlet, and the endless search for loopholes simply creates the next target for new regulation. It also contributes to cynicism about our political process.

It later attempts to misdirect angry readers unaware of the group’s role in previous cases before pledging to oppose any significant effort to fix the system.

It is also useful to remember that the mixture of money and politics long predates Citizens United and would not disappear even if Citizens United were overruled. The 2008 presidential election, which took place before Citizens United,was the most expensive in U.S. history until that point. The super PACs that have emerged in the 2012 election cycle have been funded with a significant amount of money from individuals, not corporations, and individual spending was not even at issue in Citizens United.

Unfortunately, legitimate concern over the influence of “big money” in politics has led some to propose a constitutional amendment to reverse the decision. The ACLU will firmly oppose any constitutional amendment that would limit the free speech clause of the First Amendment.

This whole defense is perverse. The Bill of Rights was implemented to ensure our system of representative government continued. However, as we are seeing, when money is speech, there is no representation. Economic elites determine which laws get passed and which do not.

If the ACLU wants to be a leader in the #Resistance against the unconstitutional aspects of President Trump’s agenda, it should prove it by offering its donors an option to earmark their donation so that after these legal battles, the money is not used to undermine future efforts to regulate campaign finance. If it cannot do this, the left should reconsider funding such an organization.