Not a Danger to Free Speech

Nothing, it appears, unsettles the current leaders of the American Civil Liberties Union more than dissent by former leaders of the ACLU. In this case, a challenge to the current leaders’ position on campaign finance reform from an all-star team of former leaders of the organization was met by a blistering attack by Nadine Strossen, Ira Glasser and Laura W. Murphy on their predecessors, an attack more notable for its misleading rhetoric than its reasoning [“A Reform That Endangers Free Speech,” op-ed, July 6]. After all, the challenge is serious and heartfelt, reflecting the considered judgment of many ACLU former leaders and current members that American democracy is being damaged by a flood of soft money and a cynical manipulation of constitutionally protected issue advocacy.

Strossen, Glasser and Murphy cannot fathom how civil libertarians could support the McCain-Feingold/Shays-Meehan legislation, which would in their words “establish limits that effectively bar any individual or organization from explicitly criticizing a public official—perhaps the single most important type of free speech in our democracy—when the official is up for reelection within 60 days.” Perhaps the reason they cannot fathom anybody supporting a bill that would do what they charge is that the bills do no such things.

In fact this legislation, especially the version that passed the Senate earlier this year only to founder on a filibuster, contains no gag order, no prohibition on speech, no provision that would shield politicians from criticism. Instead, we see a modest effort to improve disclosure and to strengthen the implementation of current law prohibiting corporate and union treasury funds from being used to finance political broadcasts.

Both the Senate and the House bills apply the court-sanctioned rules that now govern independent expenditures on elections to a narrow class of communications close to an election that are clearly designed to influence directly the election or defeat of candidates. That means especially disclosure of large contributors to organizations trying to elect or defeat the candidates. These communications have misleadingly been called “issue advocacy,” but they have little to do with issues and everything to do with electioneering.

Recall why sham “issue advocacy” is high on the agenda of campaign finance reformers. In 1996, sham issue ads exploded on the scene as politicians, consultants, parties, groups and individuals discovered that running campaign ads that avoided the use of “magic words” such as “vote for” or “defeat” provided them a wonderful loophole to advance their electoral interests without being constrained by any legal requirements governing disclosure, restrictions on sources of funding, or spending limits on publicly financed presidential candidates. A detailed postelection study by the Annenberg Public Policy Center revealed that these new so-called issue ads had less to do with issues or substance than any other type of ad. They were indistinguishable from traditional campaign ads run by candidates—except that they were more attack-oriented and personal and it was more difficult to identify the sponsor. The experience with special elections in 1997 and 1998 confirms that issue advocacy is expanding into a major weapon in the arsenal of federal election campaigns.

What do the leaders of ACLU propose to do about this problem? Ignore it and dissemble. They are against any disclosure of the sponsors or contributors to these ads. Their positive reform agenda includes “improving certain disclosure provisions,” but this recommendation is laughable, since it excludes all political communication disguised as issue advocacy. The current ACLU position is the equivalent of being for financial disclosure but exempting any Swiss bank accounts.

We accept the premise that the current ACLU leaders oppose any disclosure of electioneering ads for reasons of principle, not because they fear embarrassment from disclosure of some of their donors. In other words, it is their tunnel vision that compels them to oppose extending any disclosure or funding source limitation to this narrow class of political communication—that causes them to defend the campaign free speech equivalent of shouting fire in a crowded theater.

But the current ACLU leaders should at least acknowledge that their position provides sustenance mainly to those for whom issue advocacy is simply a loophole to exploit, not a principle to defend. And they should neither mischaracterize modest efforts to improve enforcement of existing law as an attack on free speech, nor distort what those efforts actually do. No individual or group need fear its right to criticize public officials is restricted by McCain-Feingold. At most, under certain limited circumstances, it will have to disclose its expenditures for the communication and the source of financing and refrain from serving as a conduit for corporate or union funds. In other words, if they engage in electioneering near the election, they will have to play by the same rules governing independent expenditures as everyone else. It is because that modest reform poses no danger to free speech that so many distinguished former leaders of the ACLU join us in supporting it.