AMICUS CURIAE BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION - SUMMARY OF ARGUMENT (yesterday decision)

[HughMoran]

It appears that the argument the ACLU made in this recently decided case was not directed at the core issue argued by Citizens United, but rather a more narrow aspect of the case, AKA "McConnell".

"Citizens United spends little of its challenge on the McConnell decision, focusing primarily upon the Austin ruling, which it clearly regards as the more fundamental precedent. If Austin is overturned, it argued, that may well scuttle McConnell, too. Without Austin, it argued, the McConnell decision would be “supported by nothing.” "

I have extracted the Summary of Argument from the ACLU amicus brief in the recently decided Supreme Court case. It can be seen that the ACLU argument was focused on one aspect of McConnell decision (i.e. - the ban on “electioneering communications”) specifically, whereas the Citizens United case was focused primarily on the broader Austin ruling (i.e. - the ban on express advocacy by corporations and unions) that preceded it. The ACLU did not argue against the ban on advocacy of corporations and unions.

This post is not an argument for or against what the ACLU did in this case, it is provided for informational purposes as I'm sure others will be equally interested in learning that the ACLU was not arguing for the specific argument put forth by Citizens United, but rather a latter offshoot that it had determined was unconstitutional. Their interests are highlighted below. Sadly, it appears that the broader ruling precludes "fixing" the uncertainty that they saw as unconstitutional in McConnell. Legal briefs are not my specialty and I'm basing my comments on a limited knowledge of these as argued within the summary - please feel free to correct me if I am wrong on my assumptions.



Citizens United v. Federal Election Commission - ACLU Amicus Brief

...

SUMMARY OF ARGUMENT

The broad prohibition on “electioneering communications” set forth in § 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), 2 U.S.C. § 441b(b)(2), violates the First Amendment, and the limiting construction adopted by this Court in WRTL is insufficient to save it. Accordingly, the Court should strike down § 203 as facially unconstitutional and overrule that portion of McConnell that holds otherwise.

This brief addresses only that question. It does not address the additional question raised by this Court’s reargument order: namely, whether Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), should be overruled. However, if Austin is overruled and the ban on express advocacy by corporations and unions is struck down, then the ban on “electioneering communications” in § 203 would necessarily fall as a consequence. Even if Austin is not overruled, § 203 is unconstitutional precisely because it extends beyond the express advocacy at issue in Austin. The history of the McConnell litigation, as well as campaign finance litigation before and after McConnell, demonstrates that there is no precise or predictable way to determine whether or not political speech is the “functional equivalent” of express advocacy. The decision in WRTL correctly recognized that the BCRA’s prophylactic ban on “electioneering communications” threatened speech that lies at the heart of the First Amendment, including genuine issue ads by nonpartisan organizations like the ACLU. But the reformulated ban crafted by this Court in WRTL continues to threaten core First Amendment speech. Its reliance on the hypothetical response of a reasonable listener still leaves speakers guessing about what speech is lawful and what speech is not. That uncertainty invites arbitrary and discriminatory enforcement. It will also lead many speakers to self-censor rather than risk sanctions or undertake the expense of suing the FEC prior to speaking, especially since most suits will not be resolved until long after the speech is timely and relevant.

In short, § 203 was a poorly conceived effort to restrict political speech and should be struck down.
...

Read the entire brief here: http://www.aclu.org/files/pdfs/scotus/citizensunited_v_fec_acluamicus.pdf

[HughMoran]

1. For the number of slams the ACLU got on this case - no comment?

Why do fact laden dry posts like this drop like a rock, but inflammatory screaming posts are batted around like a beachball at a ball game (don't answer that - lol)

[Demoiselle]

2. Do you think the ACLU's participation made any real difference?

I can't imagine the five Supreme toads who voted for corporate electioneering would give a good screw what the ACLU thinks in any case. (Or any part of any case.)
I'm grateful for this information, though. Thanks, HughMoran.

[HughMoran]

4. Not only did the ACLU brief probably not make much difference, but it was ancillary to the primary

case. I think we might have overreacted to the ACLU involvement in this case.

[tekisui]

3. knr!~ I still stand, proudly, with the ACLU.

[T Wolf]

5. Just got off the phone with them. Dropped my membership and monthly donation. The guy

with whom I talked sounded beat, at 10:30 am. They must be getting a lot of these cancellations.

And I did tell him exactly why I was giving up on them. He did not even try to engage me in a conversation.

They fucked this one up, for sure.

[HughMoran]

6. Did you read my post?

Do you see that they were arguing an ancillary case to the main CU case and that they did NOT argue for corporate personhood?

[T Wolf]

7. IF they did not support corporate personhood, they had no business joining with the pukes in this

case.

Results DO matter.

[HughMoran]

8. Uggh

Their input was on an ancillary case and likely had no impact on the decision. They were arguing that an improvement to the language of a particular decision to make it constitutional was still not good enough. Wanting language to be constitutional - and thus survive court challenges IS in our best interest. But don't let my arguments change the fact that you made an impulsive decision based on limited information.

[T Wolf]

9. Not impulsive. I've been contemplating it for a while. I was sucked in a year ago by a

dedicated young man who came to my door. I did not have the heart (or strength) to tell him "no." He seemed to have the naive enthusiasm many of us had decades ago.

But, after more objectionable actions on their part, this last one being the final straw, I acted to cut them off.

The organization strikes me as being like the "Dem" politicians, a little too wrapped up in their ability to blow smoke up people's ass by using legalese and other, complicated language, to promote their point of view.

Hiding behind the law or using the law as the be-all and end-all, rather than the result that the law is supposed to serve, have ended my patience with an organization that did not go after the Bushistas (in terms of impeachment) as they should have (IMO).

Playing the game is fine when the consequences are not so severe. With the issues facing this nation and the world, results are the ONLY thing that matters.

By any means necessary.

[HughMoran]

10. Well, I think their services are vital in keeping the government and others from encroaching

on our civil rights. I just re-upped on Tuesday, so I guess I offset your loss - lol.

[Odin2005]

11. The ACLU is dead to me.

Fuck them.