Stop bashing the ACLU!

[Krashkopf]

Having actually read the ACLU's amicus brief in the Citizens' United case, it is absolutely SHOCKING to see so many supposed "Democrats," "liberals," and "progressives" buying into the right-wing smears against the ACLU.

I would be willing to bet that the vast majority of the people criticizing the ACLU have NOT read the amicus brief.

If they had, they would have seen that NO WHERE in that very narrow brief does the ACLU argue in favor of "corporate citizenship." Instead, the ACLU argues that, in the Bipartisan Campaign Reform Act of 2002 (BCRA), the term "electioneering communications" is unconstitutionally vague, and thus invites discriminatory enforcment based on view point. Period. That's the argument in a nutshell.

In the amicus brief the ACLU explicitly states that the brief specifically "does not address the issue . . . of whether the BCRA's ban on express advocacy by corporations and unions should struck down."

The ACLU is a stalwart defender of the Constitution, and thus, a great ally of the progressive movement.

The right wing, and the right wing media, is using the fact that the ACLU filed this amicus brief to confuse "low information voters" into believing that "even the ACLU" is in favor of the "corporate citizenship."

Who would have thought that there would be so many of those "low information voters" here at DU?

[bluestateguy]

1. I'm sure the ACLU had better things to do

Like defend Nazis "right" to harass a community of Holocaust survivors and Rush Limbaugh's "right" to privacy.

[Quantess]

2. Didn't they even stick up for Fred Phelps?

IIRC.

[SDuderstadt]

3. Do you think the first amendment should only be defended when...

we agree with the message? Kudos to the ACLU for making tough decisions.

[Webster Green]

4. They are an equal opportunity defender of rights.

It puts them in uncomfortable positions sometimes.

Someone has to do it. I love the ACLU.

[Luminous Animal]

8. Those Nazi's expected about 100 members to march in a town

with near 30,000 Jews. Because of the publicity of the lawsuit, momentum built for a counter demonstration with an expected 50,000 to 75,000 people organized to line the Nazi's parade route. Because of the publicity, the Nazi's, even though they were ultimately granted a permit, had to run away from positive forces gathering against them, and they canceled their little parade.

[merh]

5. Ah, but they didn't argue against the notion of corporate personhood

or citizenship.

They also did not address the issue of whether the BCRA's ban on express advocacy by corporations and unions should struck down and they should have.

A union is a different type of organization than a corporation. The union is a collection of citizens or individuals that vote upon actions and their votes matter. One union member cannot buy the interests of the other members and have a voting majority, whereas with a corporation, one shareholder can own the majority of the voting intersts (stocks).

ACLU should have made the distinction and argued that the ban on corporations should be upheld and that the ban on unions was on its face unconstitutional.

Hell, they should have addressed the corporate personhood issue when they had the chance.

[Land Shark]

6. ANY WORD can be claimed "Vague", ironically Scalia claims "honest" is unconst vague

Problem is, as funny as Scalia is, any phrase almost that we train the true fire of "unconstitutionally vague" on will start to get murky in meaning around the edges. There isn't any statute that can't be the subject of discrminatory enforcement and most can lend themselves to that. HOw about many major laws under the Bush administration, weren't they arbitrarily enforced?

[merh]

7. Did he claim that in the Citizens United v. FEC opinion?

[Luminous Animal]

9. If you read the brief perhaps you'd understand.

Section 203 of McCain-Feingold is vague and leaves "electioneering communication" as wide open as a concept as porn. That it, "I know it when I see it".

[Luminous Animal]

10. Kick.

[elleng]

11. Nothing new that

"the right wing media, is using the fact that the ACLU filed this amicus brief to confuse."

[Luminous Animal]

12. The tried and true, and considering the response from many DUers,

totally effective strategy to drive a wedge between the populace and their greatest allies.

[elleng]

14. Correct.

[Krashkopf]

20. True . . .

the other prime example of that strategy is "Tort 'Reform.'" But that's a whole 'nother rant.

[Sebastian Doyle]

13. Sorry, but the ACLU fucked up big time here

It's one thing for them to defend Fred Phelps or the Nazi morons. They are actual persons (and I use the term loosely) who have the same rights to free speech as anyone else, stupid as that speech may be.

Corporations are NOT persons, and the ACLU has no business buying into the right wing fiction that they are.

[Luminous Animal]

16. The ACLU never made the argument that corporations are persons.

They made the argument that one regulation in McCain-Feingold was sufficiently vague to quash the free exchange of ideas, that the "electioneering communications" standards were subject to capricious standards (I know what it is when I see it) that could result in self-censorship by organizations who are not in a financial position to litigate the issue. By the way, Westboro Baptist Church is incorporated.

[SDuderstadt]

17. Why don't you read the OP before you go off half-cocked....

dude?

Your "shoot first, ask questions later" style is really annoying.

[SDuderstadt]

18. Self-delete....unintentional dupe

n/t

[Robb]

23. Not what happened, read the brief. nt

[Frank Booth]

15. I believe your post is a little misleading.

The ACLU asked the Supreme Court to find that Section 203, which banned "electioneering communications" by corporations and unions, was unconstitutional. The ACLU did not like this provision because "broadcast ads can be an important tool for promoting our ideological goals."

You're correct that the ACLU did not argue in favor of "corporate citizenship." But that's beside the point. The ACLU expressly recognized that by striking down Section 203 the Supreme Court would not only eliminate restrictions on "electioneering communications" by non-profit organizations, but would also open the floodgates to "electioneering communications" by for-profit corporations.

Part of being a good lawyer is knowing when to pick your fights. The ACLU's amicus brief was well-written and convincing, of course, and legally they may been correct (although there's hardly ever a single correct answer when it comes to Constitutional law). But this decision does more to impair the ACLU's "ideological goals" than those goals were ever hindered by Section 203. The couple extra ads that the ACLU may now be able to broadcast within 60 days of a general election will be overwhelmed by the thousands of ads broadcast by wealthy corporations (very few of which share the ACLU's goals).

[struggle4progress]

19. The ACLU did not argue that the Court should do what it did. The Court, faced

with a narrow request to hold BCRA Secs 201, 203 unconstitutional have several standards options. It was known, for example, that BCRA had not contemplated the issue in this case, so that the Court could simply have declared BCRA inapplicable in the situation of which the plaintiffs complained. Less narrowly, the Court might have held (say) Sec 203 unconstitutional, which is what the ACLU amicus brief supported

Instead of such ordinary rulings, tailored to the actual complaint before the court, the court acted in a broad and sweeping manner: it ordered arguments on a larger issue, not originally before it, then overturned its existing precedents on this matter, including one less than a decade old, and thus struck down a century of limitations, which it declared unconstitutional, on its own, without any gradual evolution of the law.

[merh]

24. And that is where the ACLU failed, imho.

Don't you see, the ACLU could have explained the difference between the unions and the corporations. That explanation is lacking in the opinion and could have made a difference. They could have argued against that provision and against corporate personhood all at the same time.

[struggle4progress]

26. The issue originally before the court was the applicability and constitutionality of

Section 203. The standard expectation in a lawsuit is that the court will limit itself to the issues raised by the parties to the suit: this prevents courts from straying from the matter at hand. I can't see why the ACLU should have argued a more general; issue

[merh]

27. The issue was not limited to what the ACLU argued.

They choose to limit their argument.

[Krashkopf]

28. I don't buy the argument that unions and corporations should be treated differently . . .

Unions, and Corporations, are both aggragations of economic power. Yes, a Union is a small "d" democracy, and a Corporation is an autocracy, but, neither a Union, nor a Corporation, are "natural persons" and neither should be treated as such under the Constitution.

I don't want ANY ORGANIZATION - right, left or center - "buying" elections. I want WE THE PEOPLE to decide.

[merh]

29. I suppose you don't know much about the FEC law that

SCOTUS just crushed, do you?

And yes, there is a huge structural difference between Unions and corporations that actually does relate to individual rights. That distinction should have been argued by the ACLU.

[Frank Booth]

30. I never said the ACLU argued in support of the full holding of Citizens United.

My point was that the ACLU should have recognized that having Section 203 declared unconstitutional (which it was) would be harmful in itself to the ACLU's ideological goals. Section 203 banned ads by corporations that supported specific candidates. Does the ACLU really favor a political process overwhelmed by corporate dollars? Constitutionally, the ACLU may (or may not) have been correct, but strategically it was plain stupid.

In any case, it's not like the five wacko justices give a shit about what the ACLU says, so it doesn't really matter whether it filed the amicus brief or not. Still, it's kind of annoying, because the ACLU's position provides cover for the right. The ACLU would have served itself better if it had just stayed out of this issue entirely.

[Krashkopf]

32. True Dat

You said:

In any case, it's not like the five wacko justices give a shit about what the ACLU says, so it doesn't really matter whether it filed the amicus brief or not. Still, it's kind of annoying, because the ACLU's position provides cover for the right. The ACLU would have served itself better if it had just stayed out of this issue entirely.

Those could be the TRUEST words on the topic that I have read, or heard, from anyone in any medium. Well done.

[Krashkopf]

21. Now THAT is a thoughtful criticism of the ACLU's position!

Well said.

[HughMoran]

22. Yes, I posted a summary of the amicus brief and it was mostly ignored

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=389&topic_id=7543404

[ThomWV]

25. Two things

I don't think its so much a problem of low information people here at DU. The problem may have more to do with information overload. Want to know one of the reasons why Mohamed Ali was such a great boxer? Because he could hit a person in so many places so often and for so long that they simply could not keep up, they couldn't defend themselves. Same thing here.

The more important point, it seems to me, is that here and elsewhere there is no appreciation for what an argument is nor patience to see one through to its end. What do that call that test where you are given a word and an immediate response is demanded of you? You say "Argument" and the general response you're going to get is "Bicker". People do not see the argument as the tool by which all parties become better informed. So the basic problem, once again only as I see it, is that if people won't participate in the process they can't be expected to enjoy the outcome.

[onenote]

31. Two points about the ACLU brief

First, implicit in the brief's argument is the position that the protections of the First Amendment are not limited to individuals but also apply to corporate entities, of which the ACLU itself is an example (a non-profit corporation, but a corporation nonetheless).

Second,while the ACLU brief disavowed taking a specific position on whether Austin should be overruled, it came close to suggesting that it was not opposed to such a result. The brief's final substantive paragraph states:

7. As noted at the outset, this brief does not
address the question of whether Austin v. Michigan
Chamber of Commerce, 494 U.S. 652 (1990), should
be overruled. At the very least, however, the ACLU
strongly believes that this Court should hold that the
MCFL exception for nonprofit, ideological
corporations that do not accept corporate funding, see
n.2, supra, should extend to organizations like the
ACLU that only accept de minimis funding from
sources other than individual donors. Contrary to
the position it has taken for years, see 11 C.F.R. §
114.10(c)(4)(ii), the government now apparently
concedes, or at least acknowledges, that MCFL
applies to nonprofit, ideological corporations that are
financed “overwhelmingly” by individual donations.
Supp.Br. at 3 n.3. The ACLU urges the Court to
adopt that interpretation of MCFL, if it does not
overrule Austin entirely.

The tenor of that paragraph -- "at the very least" -- certainly does not suggest
opposition to the idea of overturning Austin.

I think Citizens was wrongly decided because its possible to recognize that the Constitution
protects speech by entities other than individuals while still engaging in reasonable, non-content
based regulation of that speech. THere also is a rational basis for distinguishing between non-profit
corporations and for-profit corporations imo.

Another case that those interested in these issues might want to read is First National Bank of Boston
v. Bellotti, 435 US 765 (1978).