The ACLU and Electioneering Communications

At pages 25-26 of the transcript in WRTL, Seth Waxman made the following statement in response to a question by Justice Alito about whether setting up a PAC to run issue ads before an election would be "impractical:"

[The ACLU] and the other amici who provide a growing table of amicus briefs every time this issue comes up, have never, ever, brought their own as-applied challenge, although those these groups are not shy to litigate when they think important rights are in effect. They have been in the three years since this Court decided McConnell, and in the year since this Court made clear what I think we had assumed, which is this statute is -- it is open season on as-applied challenges. There have been precisely two as as-applied challenges brought, both brought by the counsel in this case. The ACLU's brief which is as representative as any other says look at these ads that we've been running about really important issues: The war in Iraq, Guantanamo, etcetera, etcetera, here is the text of the ad. If we had put onto a tag line of that ad, please call Senator so and so and tell him no, we wouldn't be allowed to do it.

Well, you know what? With one exception that I'll explain in a minute, in its 90-year history, the ACLU has never -- way before Bickler [sic, should be BCRA] was passed, even outside the 60-day period, they never put that line on. And you know why? It's because they have pledged to their members and to the public that they will not engage in electioneering of any sort. They are completely nonpartisan and they don't ever want to be understood to the contrary, and so they never utter those words.

My emphasis added. Joel Gora, one of the ACLU lawyers, points me to pages 14-18 of the ACLU's amicus brief in this case, where the ACLU explains that they often include "Call Your Senators" in broadcast ads where the Senator is mentioned by name. So it appears that either Seth Waxman was misspeaking or mistaken (or perhaps I'm misunderstanding his argument).
UPDATE: My post is old news. Last Thursday Seth Waxman sent this letter to the Court.

Posted by Rick Hasen at April 30, 2007 09:36 AM