Now that Georgetown constitutional law professor David Cole has been named the American Civil Liberties Union’s next national legal director, his April article in The Atlantic on “How to Reverse Citizens United” delivers a second punch.
Cole’s article gives campaign-finance reform advocates a blueprint for how to overturn the Supreme Court’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 Cole’s new employer sided squarely with the Supreme Court in Citizens United v. FEC, arguing as it has in a string of cases going all the way back to Buckley v. Valeo 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 told The American Prospect that both the Buckley ruling to ban individual spending limits, and the aspect of the Citizens United ruling that permits unlimited corporate political spending were essentially decided correctly. On both scores, Cole aligns himself with the ACLU.
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 with Citizens United that corporations deserve the same spending protections as individuals, he rejects the Court’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, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, Cole argues that what really changes the Constitution is not the high court’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.
“The broad takeaway is that the way constitutional law changes 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,” says Cole. “And there are individuals and organizations that are attempting to do that when it comes to campaign-finance reform.”
Many progressives are frustrated and even enraged that the ACLU has not joined them in that fight, at least when it comes to reversing Citizens United. The Court majority premised its ruling on two assumptions—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 Americans now disagree with the ACLU that political money is speech, as the Buckley ruling found, and the vast majority think that Citizens United was wrongly decided. In the closing days of an election that will cost close to $7 billion—a record 26 percent of it spent by outside groups—85 percent 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 group’s national leadership “has endorsed a deeply contested and incorrect reading of the First Amendment as a rigid deregulatory straightjacket that threatens the integrity of American democracy,” wrote a half-dozen present and former leaders 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.
Asked whether he thought there was a chance Cole’s arrival could signal a change in the ACLU’s direction, Neuborne replies: “I wish there were.” Cole says the issue was not discussed in his initial talks with the ACLU, and adds: “When 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.” Moreover, Cole’s First Amendment views do not seem that far from the ACLU’s.
“People say: ‘Well, money is not speech.’ But that’s not what the Court said,” says Cole. “What 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.”
To some campaign reform advocates, Cole’s endorsement of the Supreme Court’s bans on individual and corporate spending limits may come as a disappointment. But Cole directly challenges the Court’s narrow definition of corruption in Citizens United and its later McCutcheon v. FEC ruling, which states that only quid pro quo corruption—in other words, outright bribery—may be constitutionally regulated.
“In my own personal view, that’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,” says Cole. Political money limits may also be constitutional, Cole wrote in The Atlantic, on the grounds that they protect “electoral 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 that Citizens United opponents dream of. But they may help move the ACLU—and the nation—out of an increasingly destructive rut.