By Eliza Newlin Carney
Now that Georgetown constitutional law professor David Cole has been named the American Civil Liberties Unionâ€™s next national legal director, hisÂ April articleÂ inÂ The AtlanticÂ on â€œHow to ReverseÂ Citizens Unitedâ€ delivers a second punch.
Coleâ€™s article gives campaign-finance reform advocates a blueprint for how to overturn the Supreme Courtâ€™s controversial 2010 ruling to deregulate campaign spending, which has ushered in a flood of secret big money unseen since Watergate, and has fueled mounting public anger over political corruption.
Yet Coleâ€™s new employer sided squarely with the Supreme Court inÂ Citizens United v. FEC, arguing as it has in a string of cases going all the way back toÂ Buckley v. ValeoÂ in 1976 that limits on political spending trample on the First Amendment. So what gives? Is the ACLU suddenly changing its campaign-finance position? Or has Cole had a change of heart?
Neither, says Cole, who toldÂ The American ProspectÂ that both theÂ BuckleyÂ ruling to ban individual spending limits, and the aspect of theÂ Citizens UnitedÂ ruling that permits unlimited corporate political spending were essentially decided correctly. On both scores, Cole aligns himself with the ACLU.
A Middle Ground and Shifts in Societal Thinking
However, Cole carves out a new middle ground that could give the ACLU an opening to revisit an issue that has placed it increasingly out of step with its members and with the nation. While Cole agrees withÂ Citizens UnitedÂ that corporations deserve the same spending protections as individuals, he rejects the Courtâ€™s finding that the only form of corruption that may be regulated is the case of an explicit quid pro quo in exchange for a donation. He also points to other rationales for regulating political money, such as the need to protect electoral integrity and advance equality. All this gives Cole fodder to help the ACLU rethink a campaign-finance stance that has aligned itself with near-total breakdown of laws limiting the role of political money.
Cole, who starts in January, also has called on progressives to get cracking and organize to shift public thinking on the issue outside the courts as a way to bring about constitutional change. In his latest book,Â Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, Cole argues that what really changes the Constitution is not the high courtâ€™s composition, but broader shifts in societal thinking. In the book, Cole cites marriage equality, gun rights, and human rights in the War on Terror as examples of citizen-led battles that set the table for landmark Court rulings. Campaign financing also fits that template, Cole acknowledges, and could be next.
â€œThe broad takeaway is that the way constitutional law changes [is] less by clever arguments being made within the Supreme Court than by advocacy in a variety of forums outside the federal courts altogether, that shifts the ground against which the Court is deciding the question,â€ says Cole. â€œAnd there are individuals and organizations that are attempting to do that when it comes to campaign-finance reform.â€
Hard to Understand ACLU’s Viewpoint
Many progressives are frustrated and even enraged that the ACLU has not joined them in that fight, at least when it comes to reversingÂ Citizens United.Â The Court majority premised its ruling on two assumptionsâ€”that campaign money would be fully disclosed, and that independent spending poses no corruption risk. These premises now look laughable in the face of a system that has handed the financing of elections over to shadowy billionaires.
Most AmericansÂ now disagreeÂ with the ACLU that political money is speech, as theÂ BuckleyÂ ruling found, and the vast majority think thatÂ Citizens UnitedÂ was wrongly decided.Â In the closing days of an election thatÂ will cost close to $7 billionâ€”a recordÂ 26 percentÂ of it spent by outside groupsâ€”85 percentÂ of Americans now say the campaign-finance system should be fundamentally changed or completely rebuilt. The ACLU itself has struggled for years to resolve internal disputes over its campaign-finance stance, which has drawn fire from many state and local affiliates, as well as from high-profile organization leaders.
The groupâ€™s national leadership â€œhas endorsed a deeply contested and incorrect reading of the First Amendment as a rigid deregulatory straightjacket that threatens the integrity of American democracy,â€Â wrote a half-dozen present and former leadersÂ of the ACLU to a group of senators in 2014. The signers included former ACLU President Norman Dorsen, former ACLU Executive Director Aryeh Neier, and former National Legal Director, Burt Neuborne, a professor at the New York University School of Law and founder of the Brennan Center for Justice there.
Entirely Different Challenge to Citizens United
Asked whether he thought there was a chance Coleâ€™s arrival could signal a change in the ACLUâ€™s direction, Neuborne replies: â€œI wish there were.â€ Cole says the issue was not discussed in his initial talks with the ACLU, and adds: â€œWhen you are a lawyer for the government, or a lawyer for an organization, or representing a university, your job is to represent the views of the institution.â€ Moreover, Coleâ€™s First Amendment views do not seem that far from the ACLUâ€™s.
â€œPeople say: â€˜Well, money is not speech.â€™ But thatâ€™s not what the Court said,â€ says Cole. â€œWhat the Court said was: When the government seeks to limit how you spend your money on a particular subject or content, that is a First Amendment concern.â€
To some campaign reform advocates, Coleâ€™s endorsement of the Supreme Courtâ€™s bans on individual and corporate spending limits may come as a disappointment. But Cole directly challenges the Courtâ€™s narrow definition of corruption inÂ Citizens UnitedÂ and its laterÂ McCutcheon v. FECÂ ruling, which states that only quid pro quo corruptionâ€”in other words, outright briberyâ€”may be constitutionally regulated.
â€œIn my own personal view, thatâ€™s a too narrow view of the legitimate interests that a state might advance in seeking to regulate the expenditure of money in an election,â€ says Cole. Political money limits may also be constitutional, Cole wrote inÂ The Atlantic, on the grounds that they protect â€œelectoral integrity,” as Yale Law School Dean Robert Post argues, or because the state has an interest in equality, as UC Irvine Law School Professor Richard Hasen suggests. None of these arguments is the silver bullet thatÂ Citizens UnitedÂ opponents dream of. But they may help move the ACLUâ€”and the nationâ€”out of an increasingly destructive rut.Î¦
Eliza Newlin Carney is The AmericanÂ Prospect’s senior editor.