When the ACLU Protects Corporations

Yesterday the Senate failed to pass the DISCLOSE (Democracy is Strengthened by Casting Light on Spending in Elections) Act, which combined stringent disclosure requirements on advertising and spending restrictions on corporations with government contracts or TARP money. This makes a lot of sense when it comes to first, protecting democracy by preserving the integrity of our elections, and second, making sure that federal tax dollars aren’t used to support a certain candidate or issue.

Interestingly, one organization that rooted for it's demise was the ACLU, which urged members of Congress to vote against it. One of the ACLU’s more convincing objections is the requirement that smaller organizations disclose the identity of donors, while exempting larger organizations from the same disclosure requirements, this carve-out was initially created to protect the NRA but it protects other large organizations (like the ACLU) while leaving smaller organizations (like "drug law reform groups") to disclose their donor lists. This is certainly a weakness in the bill.

But the ACLU has other concerns [PDF] which have not been aired in this week's press releases, namely that the DISCLOSE Act restricts free speech for corporations, the logic behind their support for Citizens United decision:

The DISCLOSE Act bars certain government contractors, recipients of TARP funding, and corporations having more than 20 percent foreign ownership from engaging in independent expenditures … The restrictions on contractors and participants in the Troubled Asset Relief Program aim to silence businesses with government connections while allowing speech by labor unions and non-profits with comparable monetary links to the government.

When the ACLU first came out with tentative support for the Citizens United, an internal memo referred to the case as a “Skokie moment,” a reference to the 1978 case in which the ACLU defended the free speech rights of an American Nazi group.

Today, libertarians with the ACLU find themselves in a position where they feel obliged to protect corporations from getting harsher treatment than unions. However, protecting the right of Nazis to march is different from protecting the corporations from disclosure requirements; while a Nazi protest is certainly disturbing and potentially harmful, it does not carry the immediate and tangible effect that a large influx of corporate money could have on the fairness of elections.

While the ACLU does have some legitimate concerns with the bill, it's objection came from an absolutist civil libertarian perspective which forces them to protect the free speech rights of corporations when corporate spending is certainly a threat to fair elections. Although corporate personhood is settled constitutional law for the time being, campaign finance as is and Citizens United in particular remains very problematic to democracy and compromises free speech for real people. Perhaps it is one of the ACLU's failings that they cannot make that distinction.

Pema Levy is a staff writer for Campus Progress.