I HOPE IT’S NOT TOO LATE to get a word in on Jonetta Barras’ provocative article on the ACLU (“Taking Liberties,” 2/2). Barras quotes me, accurately, describing myself as a “passionate supporter” of the ACLU 75 percent of the time and as a tough critic 25 percent of the time. Because of my disappointment with the ACLU’S continuing obstructive opposition to campaign finance reform, I am afraid that the 25 percent came through more strongly than the 75 percent, so I wanted to add a postscript about what I think is truly indispensable about the organization.
The ACLU remains the major national legal organization devoted to defending citizen freedom against state power. On issues like prisoners’ rights, reproductive and sexual freedom, artistic liberty, the free speech rights of public employees, and minority voting rights, the ACLU has been a steadfast enemy of arbitrary and oppressive government. I tremble to think where we would be without it.
Locally, too, the ACLU has played an important role. It became far more attuned to the complex dynamics of race, class, and power in Washington when Judith Winston, now General Counsel to the Department of Education, served as president several years ago. (Incidentally, Judy appointed me to the litigation screening committee, not the board.) Today, the local chapter’s executive director, Mary Jane DeFrank, provides energetic and progressive leadership. She was an absolute tiger on the issue of D.C. statehood, mobilizing support locally and nationally, and has been a central actor in trying to preserve a real civilian review process over police brutality complaints in the District. We could use a lot more activists like her.
The ACLU has a delicate task. No group, much less individual, has a presumptive monopoly on the definition of freedom or liberty. These concepts are not self-evident. They achieve meaning through concrete political conflict and engagement. When hundreds of people gather to support nonsectarian student-led prayers at graduation ceremonies in the public schools, they are fighting for a certain vision of freedom consistent with the “free exercise” clause of the First Amendment. When the ACLU opposes them, citing the Establishment clause, it is invoking another, equally compelling, vision of freedom. We are forced to choose, not between good and bad or right and wrong, but between two competing paradigms of liberty. It is thus important for public interest lawyers to listen carefully to the community whose freedoms we are fighting for, even if sometimes we end up, quite legitimately, disagreeing.
So, too, is this the case with campaign finance, which may be the critical issue for our politics in the next century. Perhaps freedom means that Steve Forbes, Ross Perot, and Michael Huffington, should have the right to spend tens of millions to purchase public offices for themselves. If we embrace this view, the ACLU was right to sue the District for passing Initiative 41 and to testify in the Senate last week against federal campaign finance reform. But perhaps freedom means that we all have a right to participate in a political process where the extraordinary power of private wealth does not determine who is able to run for office, who is likely to win elections, and what politicians will do once elected.
Again, we cannot simply deduce the substantive content of freedom; we have to debate it and, one hopes, actually learn from one another. I suspect that the frozen position being promoted by the ACLU—money is speech, and no limits are allowable even if adopted through a voluntary system—is opposed not only by the majority of Washingtonians who voted for initiative 41 but by a majority of the ACLU’s own members.
It is a timeless truth that American democracy suffers when those who love it stop criticizing it and those who criticize it stop loving it. I hope that the hard-working lawyers at the local ACLU, champions of robust debate, agree that this maxim applies to all of our institutions. The ACLU can learn from the things said by its critics, but none of us can afford to stop loving the ACLU.
Professor of Law
Washington College of Law