The American Civil Liberties Union has always defended the right to free speechwhich is why, in 2009, when the U.S. Supreme Court deliberated Citizens United v. Federal Election Commission, the organization filed an amicus brief arguing that a law banning unions and corporations from engaging in "electioneering communications" violated the First Amendment. The Court agreed, and its decision would allow for unlimited corporate spending in elections.
But the ACLU of Montana is taking a different tack. It supported the state of Montana when it recently upheld its century-old Corrupt Practices Act, which barred direct corporate spending intended to influence election outcomes, despite the Citizens United ruling. By breaking from the national organization, the ACLU of Montana suggests that corporate spending in elections can stifle free speech, not expand it.
"If our social, political and economic structure has evolved to the point where not everyone is being heard because some people are dominating the airwaves, then I think that's cause for concern among those who favor the free speech rights that are protected by the First Amendment of the U.S. Constitution and the Montana Constitution," says ACLU of Montana Director Jon Ellingson.
Likewise, the ACLU of Montana argued in its amicus brief before the state supreme court that corporate corruption "can be found when the evidence indicates that the democratic process has been undermined through intentionally overwhelming the citizenry's voice and undermining the individual voter's confidence in the political process."
Montana, Ellingson says, has "mountains" of such evidence: Before the Corrupt Practices Act, during the days of the Copper Kings, corporations dominated the political process. Magnate William A. Clark famously bribed the Montana Legislature to appoint him to the U.S. Senate. Ellingson says such episodes serve "as a lesson to us about what can happen when there is unregulated money introduced into the political process to influence people."
The national ACLU has stuck to its pro-Citizens United stance, though it appears to be softening it. In 2010, the organization's board revised its campaign-finance policy relating to voluntary public financing plans, acknowledging that "very large contributions to candidates may lead to undue influence or corruption and, at a minimum, have the appearance of impropriety and undermine public confidence in the electoral system's integrity."