Fight of the Century

by Michael Chabon

  With that said, I am going to challenge the organization’s commitment to free thinking and free speech by criticizing the ACLU position on an issue that leaders like Bernie Sanders have called—correctly in my view—the paramount political issue of our time in our country: campaign finance. The ACLU started out wrong on this question and has stayed wrong for thirty-five years, even as events have demonstrated the catastrophic consequence of its views, which are imperiling our democracy and grotesquely depreciating the commitment to equality that was declared unequivocally at the time of our nation’s founding.

  Although most Americans would find it hard to believe today, in 1974, in the wake of Watergate, the Congress passed, and President Ford signed, wide-ranging restrictions on political contributions and campaign spending. Led by Senator James Buckley of New York, who had been elected as a member of the Conservative Party, an odd coalition of political bedfellows that included, quite prominently, the New York office of the ACLU challenged these restrictions in court. Buckley and the ACLU viewed spending money on politics as indistinguishable from political speech and thus entitled to the near-absolute protections of the First Amendment.

  The case, Buckley v. Valeo (Valeo was the secretary of the US Senate and a party only for formal, legal purposes), reached the US Supreme Court in 1976. The resulting opinion is, by some counts, the longest ever handed down by the Court and can be summarized only with a sense of peril. Nonetheless, the key holdings, shorn of nuance, are relatively straightforward. Because of the appearance (or reality) of corruption when elected officials accept money from those who also seek to influence them, campaign contributions to candidates for public office are properly subject to governmental restriction. By contrast, a candidate or independent party’s spending on politics is tantamount to speech and is strictly protected by the First Amendment. Buckley, in effect, set off the money wars in American elections, because it said that political spending can’t be limited. Even worse, perhaps, it struck down any limits on spending by an individual, meaning that billionaires could run for office and self-finance. To quote Sarah Palin, albeit in a different context, “How’s that workin’ out for ya?”

  There is so much wrong with Buckley and the ACLU’s position that I have a hard time containing my rage, which starts from the fact that an organization that is supposed to be dedicated to free speech has taken a position that effectively limits the speech of others.

  Writing in the New York Times about twenty years ago, I called Buckley “the Dred Scott decision of the twentieth century,” referring to the nineteenth-century case that affirmed treating slaves as property that could be returned to their owners across state lines. I have had a blessed career as an author, but if I had to bet on any words I have written being quoted one hundred years from now, it would be those.

  Buckley’s distinctions were largely unworkable. A contribution, after all, is spending by an individual. As the years have worn on, the ACLU has supported decisions eroding most limitations, including the duly reviled Citizens United decision, which granted even fictional entities like corporations the right to spend without limit on politics, as long as that money was “independent” of a particular candidate’s campaign.

  No notion is more central to the American political vision than the one expressed in the opening lines of the Declaration of Independence, paraphrased from the seventeenth-century British political philosopher John Locke, that “all [persons] are created equal, and are endowed by their Creator with certain unalienable rights.” That vision, by its nature, gives every American citizen equal influence over our political process. That fundamental political equality is enshrined in the constitutional principle of one person, one vote.

  Strikingly, that idea of political equality among all citizens was supported not just by the natural law philosophy that prevailed centuries ago, but also by contemporary political theory. John Rawls’s A Theory of Justice (1971) has been without question the most widely respected work of political philosophy written in my lifetime. In his book, Rawls proposes that a just society would be constructed behind a veil of ignorance in which the governing principles would be composed by their authors with no idea of where we stood in the social hierarchy, no notion of our wealth, our gender, our race, our intelligence, our geographical location. Not knowing how any of us would come out in the pecking order, we would all quickly agree from the start that the only arrangement that is just and fair is to give each citizen an equal voice in governance.

  Thus, a system that gives a greater political voice to the rich, because they are able to “say” more is, quite literally, un-American. The greatest analytical flaw of the ACLU position is its refusal to consider that point and what flows from it: the capacity of the rich to drown out the voices of those who are less affluent due to the ability of the rich to say so much more. If I held a political meeting and the speakers there were inaudible because one person had shown up with an electric megaphone through which he or she was relentlessly shouting, there is no doubt Megaphone Person could be shut down by the police for disturbing the peace. Buckley and the cases that follow it give Megaphone Person an absolute right to shout over the other speakers.

  By contrast, Buckley said, “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Justice Brett Kavanaugh, for example, has hailed that declaration as “one of the most important sentences in First Amendment history.”

  But permitting the exercise of any right without regard to its impact on other citizens is fundamentally out of keeping with the political understanding of the Constitution’s framers. In his Second Treatise on Government, John Locke, the guiding philosophical spirit of our nation’s founding, wrote, “Men being… all free, equal and independent, no one can be… subjected to the political power of another, without his own consent.” Creating a system, in the guise of the First Amendment, that elevates the political power of one group over that of other citizens violates our nation’s first principles.

  This “natural law” understanding is pivotal to our democracy. All persons are born with an equal right to hold and express political opinions. “Free speech” in this light is inherently equal and unlimited. Those who want to talk politics sixteen hours a day can do so. But money, as we all know, is distributed unequally in our society. And tying political rights to wealth is so wrong-headed, so deeply unfair and unjust, that it is hard to believe that an organization dedicated to “civil liberties” could ever have adhered to those views.

  Constitutionalizing unlimited political spending was a disaster in principle and has been almost apocalyptic in its effect. Special interest groups, because of their ability to coordinate contributions and spend without limit on behalf of the politicians who do their bidding, wield immense influence over our body politic. Worthy candidates without independent means decline to run for political office because they must spend at least half their time chained to their phones and rattling a tin cup while they beg for money. Billionaires, by contrast, whether Ross Perot or Michael Bloomberg or Howard Schultz or Donald Trump, can run for the highest office in the country without any base of support to start except their own open checkbook. The resulting system always carried the risk that some unlettered billionaire idiot could use his resources to overwhelm his primary opponents and end up in the White House.

  What exacerbates my criticism of the ACLU is its stubborn unwillingness to survey the smoking political wreckage and acknowledge its mistake. Instead, the organization has lifted its banner and proudly led us all over the cliff. The ACLU has slavishly followed the logic of Buckley and even submitted a brief in support of Citizens United. That’s right, the ACLU, our ACLU, advocated for one of the most wrong-headed and widely reviled decisions of the US Supreme Court in recent times, even though if you go to the ACLU website you find no forthright admission of that fact. (As someone who likes the ACLU, I still find it deeply offensi
ve that an organization dedicated to freedom of belief and expression hides from its own actions out of apparent fear of diminishing its contributor base.) The idea that corporations (or unions or other associations) ought to be able to spend freely on political expression is preposterous. It has nothing to do with the reasons corporations exist, and the idea of granting political rights to fictional persons, who do not hold the right to vote, makes no more sense than creating free speech rights for dogs. The shareholders of corporations, the members of unions, and the supporters of associations like the National Rifle Association or Planned Parenthood all have every right to their beliefs and to speak and advocate for them. But recent events have demonstrated dramatically what the problem is in endorsing unlimited corporate political spending. Foreign citizens can own and control American corporations. How then can we prevent foreign governments from spending wildly on our elections through the guise of the corporations they control?

  The closest the ACLU has come to acknowledging the mistake they made in Buckley is to say, “The ACLU believes that the system of electing candidates to federal office is badly in need of repair. We will continue to advocate for reform of the current system, including in support of our longstanding commitment to public financing of campaigns.”

  This is little more than a fig leaf, a makeweight that frankly appears to be aimed at appeasing angry contributors like me. First, unlimited spending has already led to the collapse of public financing systems. Public financing of presidential campaigns was part of the 1974 legislation that the Supreme Court approved in Buckley, but because candidates could raise far more privately than the Congress—subject to special interest influence—was willing to appropriate, they eventually walked away from the public financing system for presidential races. Even supposed reformers like Barack Obama did that.

  Second, the Buckley approach to the First Amendment inevitably becomes the hatchet used to bust up any rational public financing scheme. In order to make sense, a public financing system must either require candidates to take part, with no right to spend on their own—that’s a violation of the First Amendment under Buckley—or must give the candidates who participate in the public system resources equal to those of their privately financed opponents. But the US Supreme Court, following the Buckley principles, has decided that giving publicly financed candidates funds to match the expenditures of the privately financed punished the constitutionally protected expression of the privately supported.

  I know that people on the ACLU board and many constitutional scholars will read my remarks and say that I am making this sound easier than it is. The law is at its most artificial in drawing distinctions. Words and ideas are not little boxes with sharp edges. But as decisions pyramid on top of each other, legal concepts end up unmoored from common sense. The Buckley court wrestled with issues that have been lost in the years since. The Constitution guarantees “freedom of speech,” and “speech” in common understanding in 1789 and today is the verbal utterance of an individual. The more we expand the absolute protections of the First Amendment beyond the right of an individual to say, write, and think as she or he chooses, the more vexing distinctions become.

  Spending money is conduct, just like shooting skeet or playing music. And so is spending money on politics. Political spending clearly has expressive elements, but the government has always had the right to regulate outward behavior because of its potential impact on the rights of others. The American courts accept the right of the government to enact narrowly tailored, content-neutral regulation of expressive conduct in other contexts. I have followed with considerable amusement the long-running battle in the US Court of Appeals for the Seventh Circuit over Scabby the Rat, a twelve-foot balloon union protesters have erected at a construction site where they are striking, who has been consistently deemed to violate the local sign ordinance in Grand Chute, Wisconsin. No one can explain to me why the right of union members to send a message vital to their livelihoods, which also expresses political beliefs in a community not deep in pro-Union sentiments, is due less constitutional protection than Citizen United’s right to blast Hillary Clinton. There is nothing about campaign finance regulation, both contribution and expenditure limits, that is incompatible with our core understanding of the First Amendment.

  Reversing Buckley and Citizens United is going to take time. But the intellectual underpinnings are there. In fact, Citizens United overruled prior precedents that supported campaign spending limitations and that by itself gives a subsequent Court ample ground to reject Citizens United as an abandonment of the principle of stare decisis. But no organization can play a more critical role in leading us back toward reason than the ACLU, because its support for these decisions is so often cited by the kinds of conservatives who love Buckley because they don’t believe the government should hinder property owners’ rights to do whatever they like with what they have. It should be evident by now that if the ACLU really believes that public financing of campaigns is the best answer to the current stinking mess, repudiation of Buckley is the first step.

  It is high time for the ACLU to make the declaration that comes hardest to human beings: “We were wrong. We apologize to all Americans for a bad decision made with good intentions. We will work tirelessly to correct our mistake.”

  BOB JONES UNIVERSITY V. UNITED STATES (1983)

  Prior to 1970, the Internal Revenue Service (IRS) granted tax-exempt status to private schools, colleges, and universities without consideration of the discriminatory nature of their admissions policies. Following an injunction from the District Court for the District of Columbia in Green v. Kennedy (1970), the IRS no longer provided this exemption to schools that had racially discriminatory policies in place. One of the schools affected by this new change was Bob Jones University, a religiously affiliated nonprofit that interpreted the Bible as prohibiting miscegenation. The university banned interracial relationships on campus and refused to admit students in interracial relationships. In the mid-1970s, Bob Jones and Goldsboro Christian Schools sued the IRS, seeking restitution of their tax-exempt status. The Fourth Circuit Court of Appeals ruled that racially discriminatory policies, even those stemming from religious beliefs, violated clear federal policy against discrimination in education and thus could not be considered for tax exemption. The plaintiffs appealed to the Supreme Court. The ACLU joined with other civil and human rights groups to provide amici curiae briefs urging that the appellate decision be affirmed. The Supreme Court held that the government has a fundamental and overriding interest in eradicating racial discrimination in education, which “prevailed, with official approval, for the first 165 years of this Nation’s constitutional history.” Since 1983, Bob Jones University v. United States has served as a reminder that the religion clauses of the First Amendment do not trump compelling government policies against discrimination.

  Bob Jones Builds a Wall

  MORGAN PARKER

  When I first learned about myself, the African American, I was made to believe that the origin of my species began here on American soil, tilled by my enslaved ancestors, blah blah blah. I was invented here on this land, already owned, already assigned a specific function; a contained and delineated place. I was a fairly recent phenomenon, an advancement of science and global commerce. There were Africans, there were Americans (Caucasians?), and there was me. Hanging on the arm of a mystifying subgroup, unwelcome and unchosen.

  White people taught me all this stuff, by the way, at my white Christian school, where everyone had so much respect for African Americans and everything we’ve been through as a people. Delivered to these great United States from the darkness of Africa, where we lived in huts and bathed in buckets of river water and did not know about the Gospel. We are the story of a very brave people, just like people in the Bible. I’m not “really” like people in the Bible, this is very clear, because the people in the Bible are white, and my illustrated Bibles and textbooks are filled with pictures to prove this. But these long-suffer
ing people—slaves—that’s where it all started for me. I’m not African; that’s a whole different people we don’t know about. I am an American—but not exactly. African American. I hate the way they say it. I hate the way I come with an asterisk.

  * * *

  Decades later, I am still trying to unlearn and reeducate myself. I am still trying to untangle a heavy and long-held belief that I do not deserve love. That I do not belong anywhere; that my presence is always an interruption; that I am a stain, an unwelcome splotch of ink or blood on crisp white bedsheets.

  Until 1971, Bob Jones University, a private Christian school in Greenville, South Carolina, refused to admit African American students. The university’s God-fearing leader, Bob Jones Jr., zealously honored his father’s vision for a campus free of any secular, atheist, earthly, or liberal influence—from the New International Bible, to the teaching of evolution, to racial integration.

  There is so much for me to say about how the prevalence of religious beliefs supporting institutional practices like these have wriggled their way into my consciousness; how over the years, my interactions with white Christians have twisted and injured the way I see myself and my place in this country. There is even more to say about how people like Bob Jones Jr. think, and how institutions like his operate so resolutely; how devout religious leaders derive from the teachings of the Bible such ugly and cruel conclusions. They all have so much to say—to preach—about me and my place in this country. On Easter Sunday 1960, Bob Jones Jr. delivered a very-special-episode sermon over the Bob Jones University radio airwaves, and subsequently published it for sale at the Bob Jones University bookstore under the title Is Segregation Scriptural?