The Glade 4.0

If that headline has a certain man bites dog quality, it's because for almost 40 years the ACLU was the one major liberal organization that opposed campaign finance restrictions as violating the First Amendment. Although it supported disclosure of large contributions to candidates and public financing of campaigns to facilitate more speech, it resolutely opposed any limits on campaign giving and spending—including limits "voluntarily" accepted as the price of taking public funding.

Expenditures by candidates (including of their own funds), contributions, advertising by political parties, labor unions, nonprofit organizations and even business corporations were all viewed by the ACLU as embodying fundamental constitutional rights. As a result, its policy was clear and concise: "Limitations on contributions or expenditures made by individuals or organizations for the purpose of advocating causes or candidates in the public forum impinge directly on freedom of speech and association. Their implementation poses serious dangers to the First Amendment. They should be opposed in candidate as well as referenda elections." Until now.

Over the objections of some key senior staff and by a very narrow vote, the ACLU National Board of Directors rejected core aspects of that longstanding policy earlier this month.
The organization will now accept "reasonable" government limitations on contributions to candidates. The ACLU doesn't say what "reasonable" means, so the government will doubtless supply the definition. This will inevitably benefit those who are already elected and disadvantage challengers. Indeed, for 35 years "reasonable" limits on contributions have demonstrably helped incumbents and suppressed insurgent candidates.

When Eugene McCarthy challenged incumbent President Lyndon Johnson in the 1968 New Hampshire primary over the Vietnam War, his candidacy was only made viable by three wealthy supporters. Had McCarthy been required to raise large amounts of money in small donations from lots of people, his campaign would not have gotten off the ground, and his voice would not have been heard. This is how limits on contributions end up limiting speech.

The ACLU has also endorsed government limits on spending by candidates who accept public financing. Here, too, restrictions will empower incumbents by forcing challengers to agree to limit their campaigns in order to get public funding. This is precisely why Barack Obama rejected such limits for his presidential campaign. But now he and the ACLU will support imposing them on others.

Incumbents love contribution limits and public financing schemes that require challengers to accept contribution limits because the less speech challengers have, the better off incumbents are. In effect, under the ACLU's new policy, insurgent candidates will be forced to waive their right to more speech as a condition of accepting public financing, which will never be set at levels sufficient to generate a viable challenge.

To be sure, the ACLU board did not approve direct government limits on expenditures by candidates, individuals and independent groups like unions and corporations. Having supported the challenge by Citizens United to criminal bans on corporate and union expenditures—in brave opposition to liberal orthodoxy—the ACLU did not abandon that position, which has now been adopted by the Supreme Court.

Nonetheless, we've come to this: The premier First Amendment organization in America now favors limitations on the First Amendment in the area in which all agree it must have its most powerful application—political speech during election campaigns.

Experience has shown that the kinds of campaign finance limits the ACLU now endorses have entrenched the powers-that-be even further. Thus the ACLU is prescribing a lot of First Amendment pain for no real democratic gain. And in the process of changing its policy, the principal defender of free-speech rights will abandon that field to others.

In essence, the rhetoric of egalitarianism has won a victory over freedom of speech: The new restrictions the ACLU supports will never bring about the equality it claims is its goal. This is a self-inflicted wound from which the ACLU will not soon recover.

Mr. Abrams represented Sen. Mitch McConnell in Citizens United v. Federal Election Commission. Mr. Glasser was executive director of the ACLU from 1978-2001. Mr. Gora, a professor at Brooklyn Law School, is counsel to ACLU on campaign finance cases.