Why Is the ACLU Helping the Richest Americans Buy Our Elections?

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The ACLU’s national press office declined to comment or make any attorneys available for this article. Calls and emails to ACLU litigators, current and former, who litigated many of its political speech cases before the Court also were not returned.

However, Neuborne is hardly alone in his analysis of how First Amendment fundamentalism can fray the fabric of political speech and democracy. Supreme Court Justices, starting with Byron White’s dissent at the start of the Court’s modern deregulatory regime in  Buckley, and  John Paul Stevens , whose 2010 dissent in Citizens United, catalogued the dangers of unregulated big money in elections. 

“While it is true that we have not always spoken about corruption in a clear or consistent voice, the approach taken by the majority cannot be right, in my judgment, “Stevens wrote. “It disregards our constitutional history and the fundamental demands of a democratic society.”

Unlike the 1976  Buckley decision, which slowly transformed America’s campaign finance landscape over many years, the impact from  Citizen United  has come in barely two years. The Court’s majority in Citizens United did not anticipate these consequences . It puts those who argued with the majority—such as the ACLU’s national office—in an awkward place, because as new facts have emerged, so have nuanced political speech issues that cannot be adequately answered by saying censorship is the most important First Amendment issue.

And Citizens United  may be headed back to the Supreme Court. On Friday, the Court issued a  stay in a suit challenging Montana’s 1912 ban on corporate campaigning. The Court could overrule Montana without a hearing—citing the supremacy of the nation’s highest court over state courts. Or it could hold a hearing to re-evaluate parts of it in light of new facts and public perceptions.

Should the Court hear the Montana case, the ACLU board may be pushed to re-evaluate its policy. Whether it will remains to be seen. The ACLU thrives on being attacked and sees itself as the last legal line of defense against state censorship. But an honest look in a mirror may reveal that its anti-censorship absolutism is helping the wealthy to eclipse and suppress—if not silence—political speech of millions of ordinary Americans.