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NEW YORK
- June 19 -- Nine former leaders of the American Civil
Liberties Union (ACLU) today publicly released a joint statement declaring that the
current ACLU leadership has misread the First Amendment as it applies to campaign finance
laws and that significant campaign finance reform -- including a soft money ban -- is
constitutional.
The nine former leaders constitute every living person to have served as ACLU president,
executive director, legal director or legislative director during the past 30 years,
except for one person currently in government service, and therefore, not free to express
a personal opinion.
In their statement the former ACLU leaders called for the overturning of Buckley v. Valeo,
the landmark Supreme Court campaign finance case, and stated that even within the
limitations of Buckley, Congress can eliminate the soft money loophole and regulate
so-called "issue advocacy" advertisements.
"While I am proud of my ACLU service and continue to support the ACLU's matchless
efforts to preserve the Bill of Rights, I believe the national ACLU's position on campaign
finance reform is wrong on constitutional and policy grounds," stated Burt Neuborne,
currently the legal director of the Brennan Center
and formerly the national legal director of the ACLU. "Opponents of reform should no
longer be permitted to hide behind a constitutional smokescreen."
Opponents of campaign finance reform have routinely invoked the ACLU as the authority for
the argument that efforts to reform campaign finance laws are unconstitutional. Most
importantly for the current House debate is the statement's forceful rejection of the
ACLU's argument that the Supreme Court's rulings block banning soft money and regulating
so-called "issue advertisements" -- the key components of Shays-Meehan
legislation.
The Brennan Center for Justice is a nonprofit institute devoted to discourse and action on
issues of justice central to the jurisprudence of the late Justice William J. Brennan Jr.
Founded three years ago by family members, friends and former clerks, the center is
involved in litigation, public education and scholarship
on campaign finance reform.
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To speak with Professor Neuborne or for further information, contact Ken Weine at
212-998-6736.
A copy of the statement follows.
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Statement of Persons Who Have Served the
American Civil Liberties Union in Leadership Positions
Supporting the Constitutionality of Efforts to Enact
Reasonable Campaign Finance Reform
We have served the American Civil Liberties Union in leadership
positions over several decades.
Norman Dorsen served as ACLU
general counsel from 1969-1976 and as president of the ACLU from
1976-1991. Jack Pemberton and Aryeh Neier served as executive
directors of the ACLU from 1962-1978. Melvin Wulf, Bruce Ennis,
Burt Neuborne, and John Powell served as national legal directors
of the ACLU from 1962-1992. Charles Morgan Jr., and Morton
Halperin served as national legislative directors of the ACLU from
1972-1976, and 1984-1992 respectively. Indeed, except for one
person currently in government service, and, therefore, not free
to express a personal opinion, we constitute every living person
to have served as ACLU president, ACLU executive director, ACLU
legal director, or ACLU legislative director during the past
30 years, with the exception of the current leadership.
We have devoted much of our professional lives to the ACLU, and
to the protection of free speech. We are proud of our ACLU
service, and we continue to support the ACLU's matchless efforts to
preserve the Bill of Rights.
We have come to believe, however,
that the opposition to campaign finance reform expressed by the
ACLU misreads the First Amendment.
In our opinion, the First
Amendment does not forbid content-neutral efforts to place
reasonable limits on campaign spending.
We believe that the First Amendment is designed to safeguard a
functioning and fair democracy. The current system of campaign
financing makes a mockery of that ideal by enabling the rich to set
the national agenda, and to exercise disproportionate influence
over the behavior of public officials.
We believe that Buckley v. Valeo, the 1976 Supreme Court case
that makes it extremely difficult to reform the current, disastrous
campaign financing system, should be overruled for three reasons.
First, the Buckley opinion inappropriately treats the spending of
money as though it were pure speech, no matter how high the
spending limits may be. But such an approach ignores the long-
established Supreme Court rule that when speech is inextricably
intertwined with conduct, the conduct may be regulated if it
threatens to cause serious harm. While we agree that unreasonably
low spending limits would unconstitutionally impinge on free
speech, the Buckley Court failed to recognize that there is a
compelling interest in defending democracy that justifies
reasonable spending limits. Reasonable spending limits would free
candidates and officials to concentrate on substantive questions of
public policy, instead of spending excessive time raising campaign
funds. Reasonable spending limits would also free candidates from
becoming trapped in an arms race mentality, where each candidate is
forced to continue raising money, not because they wish to, but to
prevent being outspent by an opponent.
Second, the Buckley opinion makes an untenable distinction
between campaign contributions, which may be subjected to stringent
government regulation, and campaign expenditures, which are
virtually immune from regulation. The bright-line distinction
between contributions and expenditures is neither analytically nor
pragmatically defensible. By upholding limits on the size and
source of campaign contributions, while preventing any effort to
limit the demand for campaign funds by capping spending, the
Buckley Court inadvertently created a system that tempts
politicians to break the law governing campaign contributions in
order to satisfy an uncontrollable need for campaign cash.
Third, the Buckley Court erred in refusing to permit the
establishment of reasonable spending limits designed to avoid
unfair domination of the electoral process by a small group of
extremely wealthy persons. Instead of "one person - one vote," the
Buckley decision has resulted in a regime of "one dollar - one
vote" that magnifies the political influence of extremely wealthy
individuals and distorts the fundamental principle of political
equality underlying the First Amendment itself, causing great harm
to the democratic principles that underlie the Constitution.
It is our hope that the current Supreme Court, confronted with
the unfortunate practical implications of the Buckley decision, and
the serious flaws in its constitutional analysis, will reconsider
the decision, and permit reasonable legislative efforts to reform
our campaign financing system.
Moreover, even within the limitations of the Buckley decision,
we believe that significant campaign finance reform is both
possible and constitutional. We support elimination of the "soft
money" loophole that allows unlimited campaign contributions to
political parties, undermining Congress' effort to regulate the
size and source of campaign contributions to candidates. We
believe that Congress, for the purpose of regulating the size and
source of federal campaign contributions, may treat a contribution
to the political party sponsoring a federal candidate as though it
were a contribution to the candidate directly.
We also support regulation of the funding of political
advertising that is clearly intended to affect the outcome of a
specific federal election, but that omits the magic words "vote
for" or "vote against." We believe that Congress may draft a
narrowly tailored provision regulating the funding of so-called
"issue advertisements" that mention one or more of the candidates,
appear shortly before the election, and are geographically targeted
in an obvious effort to affect the outcome of a specific federal
election.
We believe that the current debate over campaign financing
reform in the House of Representatives and the Senate should center
on the important policy questions raised by various efforts at
reform. Opponents of reform should no longer be permitted to hide
behind an unjustified constitutional smokescreen.
Norman Dorsen
Jack Pemberton
Aryeh Neier
Melvin Wulf
Bruce Ennis
Burt Neuborne
John Powell
Charles Morgan Jr.
Morton Halperin
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