In a recent excerpt of our forthcoming ebook, we noted that the ACLU had not filed an amicus brief in McCutcheon v. FEC. Given the ACLU’s history of contesting campaign laws up to but not after Citizens United, and given the controversy within the ACLU over such issues dating back to at least 1998, we speculated as to whether that “division” continues within the ACLU. Below, Steven Shapiro (the legal director of the National ACLU) explains why the ACLU elected not to file a brief in McCutcheon.     

Steven R. Shapiro — Reply to Collins & Skover

Ronald Collins and David Skover are correct to note that the ACLU has been deeply engaged in campaign finance issues for more than forty years and has participated in virtually every major campaign finance case decided by the Supreme Court during that period. In some, including Buckley v. Valeo and McConnell v. FEC, the ACLU appeared as both a party and as counsel. It would be strange if it were otherwise. Whatever one thinks about campaign finance, it obviously raises critical issues about political speech, the role of money in facilitating that speech, and democratic self-governance. These are all issues that have been central to the ACLU’s mission for nearly a century.  Ron and David are incorrect to suggest that the ACLU’s absence in McCutcheon v. FEC reflects a new sensitivity to “divisions” within the ACLU over the campaign finance question. The ACLU’s policy on campaign finance is among the most debated policies in the organization’s history. But despite repeated reexaminations, the ACLU has never wavered from its position in favor of public financing and against restrictions on political expenditures. The ACLU did, however, change its policy on contribution limits in 2010, stating for the first time that it would “not oppose reasonable contribution limits to candidates that are set at levels that allow candidates to amass sufficient resources to run effective campaigns.” During the course of this discussion, the question of aggregate limits on contributions to candidates and political committees never arose. Because of that, we chose not to file when that issue was presented in McCutcheon, and for no other reason.

Ronald Collins & David Skover – Rejoinder to Steven Shapiro 

We welcome Steve Shapiro’s reply, if only because it focuses attention to the importance of First Amendment issues for the ACLU, an organization with a longtime history of defending the principle of robust free expression. Mindful of what Steve wrote, we wonder what the ACLU position will be on “aggregate limits” once it elects to consider that precise question, a question it apparently did not entertain when the D.C. Circuit considered the matter in McCutcheon back in September 2012. As for our use of the word “divisions,” we did so for the following reasons:  (1) E.J. Dionne’s June 19, 1998 column in The Washington Post spoke of a “major breakthrough” in describing a “bitter debate” within the ACLU over the issue of contesting campaign finance laws on First Amendment grounds; (2) the fact that in six campaign finance cases that the Court heard, the ACLU and “Former ACLU Officials” were on different sides of the First Amendment issue; and (3) after Citizens United the ACLU has not filed a brief in any of the campaign finance cases heard by the Court. Perhaps those facts reflect no “sensitivity” to the matter and perhaps they have no bearing on the ACLU’s position concerning McCutcheon. We leave that for others to decide. More could be said on this subject, and we do just that in our forthcoming ebook. Until then, we will only add this: Steve Shapiro’s own record in defending the free speech principle in the campaign finance cases in which he participated is one that many First Amendment defenders would enthusiastically endorse.

Posted in McCutcheon v. Federal Election Commission, Book Reviews

Recommended Citation: Ron Collins, The ACLU & the McCutcheon case, SCOTUSblog (Mar. 14, 2014, 1:07 PM), http://www.scotusblog.com/2014/03/the-aclu-the-mccutcheon-case/