The ACLU has modified over the last decade two important positions on civil liberties. Historically its position had been that limiting contributions to political campaigns was unconstitutional. In 2010 it shifted to support “reasonable” limits on contributions to political campaigns. Strikingly, the ACLU in 2013 then failed to file any brief at all in McCutcheon v. FEC, which challenged aggregate limits on contributions. These limits prevented citizens from expressing support for individual candidates, even when those individual contributions were of modest size.
Second, in 1993 ACLU President Nadine Strossen enthusiastically supported the Religious Freedom Restoration Act. Later the ACLU, as David Bernstein reported, continued to support legal exemptions for reasons of religious conscience, but opposed subsequent bills providing for across-the-board exemptions because of fear that they would interfere with anti-discrimination laws. The ACLU today supports the bill to override the Hobby Lobby even though the decision did not involve an anti-discrimination law.
In contrast, CATO, the premier libertarian think-tank, has been relentlessly consistent in its views on domestic policy, opposing infringements on both civil rights and property rights alike. The consistency has continued despite some unfortunate recent squabbles about the structure of its leadership.
The difference between the mutability of ACLU and the constancy of Cato underscores important truths about both the nature of liberty and politics. One of the causes of ACLU’s inconstancy is its division of civil liberties from economic liberties. In campaign finance, that dichotomy appears to have prevented the organization from continuing its absolute defense of contributions, because of its concern of the “undue influence” of money in politics. In Hobby Lobby it is difficult to determine whose civil rights are at issue—the owners or the employees– without the help of property rights. Cato faces no such instability in the positions it takes, because it views liberty as indivisible. When liberty is house divided, even the preferred half is likely to weaken over time.
Another cause may be partisan politics. I venture to guess that vast majority of ACLU supporters today are Democrats, whose party sometimes champions civil liberties but often opposes them when they interfere with notions of progressive government. In contrast, many, if not most, Cato supporters are unhappy with both major political parties in the United States, and many support the Libertarian party. It is not clear that being a Libertarian with a capital L is a sensible political strategy, because in our first-past-the-post system, third parties have almost no chance. But an organization composed mostly of people distant from parties that may actually take power is less likely to bend principle from partisan considerations.
My prediction is that the ACLU will continue to modify its positions over time to move toward those of the Democratic party and Cato will continue to adhere to its positions, regardless of the views of our major political parties.