Don't Want Corporations to Have Rights? Then the ACLU Suit Is Dead

Many liberals who cheered when the civil-rights organization filed a suit against the NSA hate the decision in Citizens United. But the suit would be impossible without it.

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ACLU director Anthony Romero at an event in 2005 (Jonathan Ernst/Reuters)

If progressives had their way, the ACLU's latest challenge to the NSA's domestic surveillance would easily be dismissed. ACLU v Clapper, filed in the wake of the Snowden revelations, is based on the ACLU's First and Fourth Amendment rights, which, according to progressives, ACLU should not possess. It is, after all, a corporation, and constitutional amendments aggressively promoted by progressives would limit constitutional rights to "natural persons."

"The words people, person, or citizen as used in this Constitution do not include corporations, limited liability companies or other corporate entities," the popular People's Rights Amendment declares.

I have repeatedly stressed the dangers of an amendment limiting constitutional rights to "natural persons," noting that it would deprive every non-profit, citizens advocacy group as well as small and large businesses of both First and Fourth Amendment rights, exposing them to warrantless searches and outright censorship of political speech. ACLU v Clapper makes clear that these threats to civil liberty are not theoretical.

The ACLU (including its New York affiliate) is not just the lawyer but the plaintiff in the latest Clapper case. As the complaint recounts, ACLU and ACLU Foundation are subscribers to Verizon Business Network Services, "whose communications have already been monitored by the government under the VBNS order and whose communications continue to be monitored under that order now ... Plaintiffs work often depends on their ability to keep even the facts of their discussion with certain individuals confidential."

Of course, ACLU is not merely seeking to protect its interests in this lawsuit: It seeks to protect the interests of clients and prospective clients whose identities are revealed by the metadata, and for whom the surveillance "is likely to have a "chilling effect," deterring them from seeking legal assistance. Maybe it could successfully assert standing to represent a client, or individual employees. But, again, the ACLU is the plaintiff in this case, representing itself, defending its own corporate constitutional rights.

"[T]he dragnet surveillance the government is carrying out under Section 215 infringes upon the ACLU's First Amendment rights, including the twin liberties of free expression and free association," the organization's press release explains: "The kind of personal-data aggregation accomplished through Section 215 also constitutes an unreasonable search and seizure under the Fourth Amendment."

I don't imagine that many advocates of the People's Rights Amendment are unsympathetic to these claims. I do expect, however, that many will continue to deny, emphatically and illogically, that eliminating corporate constitutional rights would have any effect on the ACLU's lawsuit, or similar suits in the future.

Progressives are simply apoplectic about Citizens United, whether or not they understand it. Like the name "Karl Rove," the words "Citizens United" evoke a Pavlovian response. Many of its fiercest critics don't even know the facts of the case, which involved a challenge to campaign finance laws that criminalized broadcast of a critical movie about former presidential candidate Hillary Clinton during a blackout period before an election. "Do you think Michael Moore should be barred from establishing a non-profit corporation to air a movie critical of Rand Paul if he runs for president?" I'll ask the Citizens United critics. Often they look at me blankly, having no idea why the question is relevant.

Yes, the campaign finance system is broken. Campaigns are obscenely expensive; super-rich individuals and corporations have opportunities to buy or influence elections in relative secret. Disclosure requirements are too easily circumvented by creation of faux social welfare groups (and the IRS's wrongful focus on right wing groups has made the hard political task of policing abuses even harder).

I'm not denying the corrosive, anti-democratic effects of big money. I'm asking progressives to stop denying the liberty interests served by corporate constitutional rights. If ACLU v Clapper doesn't make those interests clear, then I suspect nothing will.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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