Earlier this week, a Senate Judiciary subcommittee, chaired by Sen. Sheldon Whitehouse (D-R.I.), held a hearing on campaign finance law enforcement. We submitted comments highlighting a few areas of common ground between the ACLU and proponents of campaign finance reform.
For instance, witnesses from the Department of Justice and Internal Revenue Service testified about "straw" or "conduit" contributions. These occur when an individual knowingly makes a contribution "in the name of another person" or allows her name to be used to make such a contribution (consider, for instance, a company that urges its employees to donate to a particular candidate on the understanding that the company will repay them for the contributions). The ACLU has certainly been a vocal defender of the First Amendment in the context of campaign finance, but we have never taken issue with the four-decade ban on these transactions.
Right now, straw contributions are used to circumvent the strict limits on direct contributions to candidates (and the absolute ban on direct contributions by corporations or unions). But, even in a system of unlimited campaign contributions, they would present serious risks of corruption and should be prohibited. Why?
First, and fundamentally, they shield the identity of the contributor. The ACLU has concerns with onerous disclosure requirements for small contributions and for independent political activity, but the public absolutely has an interest in knowing who might be donating money in an amount sufficient to influence a candidate's actions in office. Straw contributions mask that information. Second, and perhaps less obvious, straw contributions can be used to hide the magnitude of a particular contribution. One big corrupting contribution gets broken up into a bunch of little innocuous contributions. Such a scheme can be used to hide out-and-out bribery. Big problem.
Relatedly, Whitehouse noted a variation on the straw contribution scheme, restrictions on which—depending on the circumstances—may also pass constitutional muster. There were allegations last election cycle that a few "Super PACs" (a frustratingly inaccurate term) were effectively shielding the identity of certain donors from disclosure by using the tax code to create shell organizations—named "501(c)(4)" groups after the relevant section of the code—that would receive anonymous donations and funnel the money to the Super PAC. The Super PAC would then report only the identity of the shell group, and not the identity of the real donor.
While there are numerous scenarios where 501(c)(4) organizations should absolutely be allowed to engage in political speech without disclosing their donors (the ACLU, for instance, should not be required to disclose its donors because it runs ads criticizing the main sponsor of a constitutional amendment banning flag "desecration"), it strikes me that true "identity laundering," like that described above, could potentially violate the straw contribution prohibition.
Another area of possible common ground raised at the hearing involved the question of "coordination" between candidates and groups making independent expenditures. Under federal law, "independent" political expenditures (which are, by definition, express advocacy for or against a candidate) become in-kind direct contributions, subject to strict limits, when they are directed or assented to by the candidate they benefit (that is, "coordination"). The current coordination rules are, to put it diplomatically, complex, and, as the DOJ's witness noted repeatedly, they need a clarity injection, stat. The ACLU's First Amendment counsel and chief of staff for the Washington Legislative Office, Michael Macleod-Ball, agreed strongly in a blog post last year.
Crucially, we do need to be very careful on coordination. One of the witnesses, prominent academic and former Federal Election Commission Chair Bradley Smith, raised some absolutely valid and important concerns. Although much can be done to improve the coordination rules, he is right that the coordination rules must not go so far as to chill legitimate First Amendment activity. One coordination proposal in the 2001 McCain-Feingold bill would have, for instance, done exactly that. It would have made virtually any speech naming a candidate by a group that had any contact with that candidate a coordinated contribution, subject to strict limits or outright prohibition.
At the end of the day, the hearing showcased how, in the fight to protect the integrity of our elections and government, there is much we can do under existing law. We do not need new measures that would give the government the power to dictate who can speak (and how much they can speak) on core political issues, which is really what's being advocated under the guise of campaign finance reform. That type of control is easily abused and fundamentally undemocratic, and is as dangerous as the many corrupt practices that we should absolutely fight to prohibit and punish.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.