ACLU Splits, and Abandons Principle


ACRU Staff


May 4, 2010

For decades the ACLU has claimed that its basic policy on the First Amendment was that all restrictions on free speech were wrong, and should be fought in court. Now, its national board and staff have reversed that policy in favor of the current Administration, and been attacked for that by leading lawyers and staff members.

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The facts for this story, but not the legal conclusions, come from an editorial in the New York Sun on 30 April, 2010. After a vigorous debate among its top lawyers, top current and former staff and board members, the ACLU has dropped its former position that all restrictions on political speech were unwarrented and should be attacked in court.

Floyd Abrams, a long-time lawyer for the ACLU, revealed the break in an Op-Ed article in the Wall Street Journal last week. Abrams was ACLU lead counsel in a unique case where the ACLU was on the same side as the ACRU in a civil rights matter. That case was McConnell v. FCC, about the restrictions on citizens spending money, close to elections, stating their opinions on incumbent candidates running for reelection, in radio or TV ads.

The latest case where restraints on citizens spending money to express their political opinions was the Citizens United v. FEC case. In that, the Supreme Court struck down the restraints on citizens spending money for that purpose.

Floyd Abrams and Joel Gora report that the ACLU will “now accept ‘reasonable’ government limitations on contributions to candidates.” They assert that the Union’s about-face “will inevitably benefit those who are already elected and disadvantage challengers.”

The simple truth is that all restraints on citizens spending money to state their views, redound to the benefit of incumbents. Call it the Jack Murtha Effect, since that late Member of Congress was a prime example of this kind of political corruption. As his seniority increased, his positions of authority on key committees in the House also increased. At the same time, donations from corporations which could feel the lash from or the benefits of his position, poured into Murtha’s coffers. There was no relationship between many of these corporations and Murtha’s district.

FEC records make clear that incumbents almost always have a financial advantage over challengers in races for the House and Senate. That is precisely why restraints on citizen spending usually favor the incumbents.

It is not a surprise, sadly, to the American Civil Rights Union that the ACLU has chosen political sides, trying to benefit Democrat incumbents in the White House, Senate and House from the consequences of upset citizens who disagree with them and seek to spend money to oppose them. Many times a bias toward the Democrats has seemed to be the purpose of the ACLU. In this policy change, that bias is clear, and on the table.

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