The ACLU is Changing. Not Everyone is Happy About That
This week, the ACLU took another step out of the courts and into the streets, calling for a suite of transformative racial and economic justice policies, including reparations.
“To begin to heal and move toward real racial justice, we must address not only the harms of the past four years, but also the harms tracing back to this country’s origins,” wrote Renika Moore, the ACLU’s racial justice program director, and Rakim Brooks, the group’s systemic equality campaign manager. “Racism has played an active role in the creation of our systems of education, health care, ownership and employment, and virtually every other facet of life since this nation’s founding.”
In a continuation of the ACLU’s political shift in recent years under Executive Director Anthony Romero, the group plans to spend the Biden administration pressuring both the White House and Congress to forgive student debt, establish a postal banking service, expand broadband access, enhance the refundable child tax credit, and study reparations for Black Americans.
The ACLU will also push for policies more in line with the group’s traditional civil rights practice, like expansions to fair housing and voting rights.
The New ACLU
The ACLU’s call for an ambitious new policy agenda echoes demands from many liberal groups after Democrats secured a united government. But for much of its existence, the ACLU’s national organization has been hesitant to wade into politics so explicitly, outside of a handful of civil rights and civil liberties issues.
Romero and other ACLU leaders arguably laid the seeds for such a turn more than a decade ago, but it was the election of Donald Trump (and a massive cash infusion from anti-Trump donors) that motivated the 100-year-old civil liberties group to rewrite its playbook.
“The day after the election, American people started voting again,” Faiz Shakir, the ACLU’s then political director told the New York Times in 2018. “With their pocketbooks and their email addresses, telling the ACLU: ‘Tag, you’re it.’ My take on that was, keep doing what you’re doing, litigation is great, but you have to rethink what your mission is.”
Since 2016, the ACLU has invested millions in grassroots organizing, advocating for ballot initiatives and taking the unprecedented step of supporting and opposing political candidates. It also engaged in advocacy over issues like healthcare. While the organization has long maintained a Washington, D.C., office and lobbied Congress and the White House on civil rights and civil liberties policies, the Trump years led the ACLU into uncharted territory when it comes to politics. Now that it once again has allies in the White House, the ACLU is staying on the path, pushing for more aggressive policies and economic answers to civil rights problems.
Weighing free speech traditions with civil rights protections
For some committed civil libertarians, including former ACLU Executive Director Ira Glasser, the group’s change of direction has been troubling.
“There is no question that this is a transformative change in the way in which and the principles upon which the ACLU has operated from its beginning, in 1920,” Glasser told the New Yorker in 2018. “I regard this as a departure which has the capacity to destroy the organization as it has always existed.”
But the organization’s move to politics hasn’t kept it out of the courtroom; the ACLU sued the Trump administration more than 400 times, taking two cases all the way to the Supreme Court.
Nor is such overt political action on behalf of marginalized groups without precedent: In its earliest years, the ACLU and its leaders were explicitly fighting for “the right of agitation” for labor radicals and defending pacifists, trying to discredit corrupt American jurisprudence, not seek its protections. The organization’s leadership eventually came to believe that rights for the most marginalized could only be enforced if those principles were applied universally. This philosophy guided much of the ACLU’s work in the second half of the 20th century when it infamously defended the free speech rights of Nazis, Klan members and pedophiles.
Shifting priorities post-Trump bump
In a memo to attorneys in the aftermath of the Charlottesville “Unite the Right” rally, where the ACLU represented organizer Jason Kessler on first amendment grounds, the organization’s leaders tried to walk a tightrope. With anger mounting for its role in the rally, the author’s memos attempted to reaffirm the ACLU’s free speech commitments while drawing stronger lines about defending potentially violent and harmful actors. Traditionalists, like former board member Wendy Kaminer, saw the memo as a capitulation.
“The speech-case guidelines reflect a demotion of free speech in the ACLU’s hierarchy of values,” Kaminer wrote in the Wall Street Journal.
In response to the criticism from Kaminer, ACLU Legal Director David Cole wrote that the memo “does not change our longstanding policies.”
But it’s difficult to see some of the ACLU’s free speech criteria in the memo, such as a case’s potential to harm the organization’s relationships with allies, as disconnected from the group’s more active push for racial and economic justice. Like most big, liberal advocacy groups, the ACLU was given a huge boost by the Trump years. Many of the ACLU’s millions of new members gave their money to fight the then President, and likely saw the group’s advocacy for Kessler as assisting white nationalists.
The question now is how the ACLU will retain its Trump-era support without such a clear enemy. The group’s new racial justice agenda suggests it’s already decided on a strategy for the future, one that focuses more on big, progressive policies, and a bit less on defending the rights of QAnon believers.
Editor’s note: The author of this story previously worked as an intern at the ACLU of Michigan.