"The ACLU is not in crisis and does not need saving"

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I have been a member of the ACLU Board of Directors since 1988, serving as a member of the Executive Committee and as General Counsel, working with both our current Executive Director, Anthony Romero, and our former ED, Ira Glasser.

Based on my experience and my inside knowledge of an organization I care deeply about, I can unequivocally state that the ACLU is not in crisis and does not need saving.

1. The “savetheaclu” allegations are a rehashing of distorted and tired complaints.

I too might be concerned about some of the allegations being made if I had been following the ACLU through the New York Times accounts rather than from my insider seat.

The centerpiece of the critique is usually two or three decisions Anthony made several years ago, when he was still quite new to the ACLU. Anthony did sign onto the Combined Federal Campaign [CFC] program and to a Ford Foundation grant letter without consulting with the Board first, in an action he now recognizes as a mistake. After some discussion and developments, Anthony rescinded the ACLU’s CFC participation (as I am entirely sure the Board would have done had he not gotten there first). Wendy Kaminer describes the Board as having “approved” the CFC participation because, at the very end of a lengthy meeting debating the Ford Foundation issue, Michael Meyers made a motion that the Board (which had just been told about the CFC) act on the spot to withdraw, at a point when there was no time for any discussion or debate about what the CFC actually required (which was unclear at the time), whether we should sue, how we would articulate what was unsupportable, etc. That motion was defeated, in my view (and in the view of a very large number of Board members I have spoken to), because the Board hesitates to act precipitously, before discussing and understanding what action we are taking. (Wendy’s later characterization of the Board’s robust discussion of the Rights and Responsibilities committee report as “procedural dithering” is very telling. A diverse, supersize 83 person Board has to be careful about procedure, so that everyone has a chance to speak and to try to mold an eventual consensus. We don’t -- and I think can’t -- turn on a dime.) What the Board did do at that meeting was to put in place a process for the Executive Committee [EC] and then the Board to evaluate the CFC program, language, and background in order to decide, under our usual process, not only whether to change course but how to do so.

2. The Board recognizes and upholds civil liberties principles. Sometimes reasonable Board members disagree about how to apply those principles.

The Board ultimately decided to decline Ford Foundation grants because of language in the grant conditions, an issue on which the Board was just about equally divided because, rather than being a litmus test for civil libertarians, this was an issue on which reasonable civil libertarians could and did differ. We had two lengthy and, I think, estimable discussions where we expressed our different points of view civilly and respected our procedures for democratic decision-making. Those who disagreed with the ultimate result – we have forfeited millions of dollars for what many view as a quixotic act – did not go back to try to change our policy. The ACLU is comprised of the staff and the Board. In an ideal world, the staff would always know exactly what the Board would want to do. In the real world, the Board’s job is sometimes to overrule a staff decision with which we disagree. If we exercise that power occasionally, that does not show that our processes don’t work, but rather, that they do. I don’t think there is any reasonable basis for accusing our Board of being insensitive to civil liberties principles. We just sometimes and inevitably have different ideas about how to apply our principles.

The fact that our Board even discussed a report from a committee created to discuss the rights and responsibilities of directors has been criticized as showing our intention to stifle dissent. I continue to think that it was responsible for the Board to try to hold a serious discussion about our legal obligations as fiduciaries. There was much more to the committee’s report than the controversial sentences that became the centerpiece of the NY Times story – like the creation of orientation procedures for new Board members. The distorted version of our meeting the NY Times reported did not mention what the committee had actually been asked to do (consider whether we wanted to try to define or at least discuss the concept of “fiduciary duty” in the unique context of the ACLU); did not mention that the committee had firmly rejected the idea of imposing any sanctions (like expulsion) on directors who might reject or act in opposition to the majority’s views on these issues; did not mention that Anthony advocated against adopting the committee’s approach; and characterized our debate as one in which “several” board members had disagreed with controversial language despite the fact that the chair of the committee understood the board’s concerns to be so substantial that, at the end of the meeting, he announced that he understood that the committee needed to go back to the drawing board in the face of the Board’s concerns. (We often try to strive toward consensus rather than forcing a vote between what might be treated as adverse positions – as we did very successfully in generating a policy about hate speech that most of the Board found to respect values of free speech and equality rather than choosing between those values.) The distorted press account of this meeting did not contribute either to free speech or to our democratic procedures. It only contributed to suspicion of our Board as lay leaders which I think is very much undeserved. We have talked a lot; individual people have said many things about what they thought we should do; but we have actually not done the things the Times sensationally reported we “might” do, like expel directors, “block” criticism, etc.

3. We have instituted structural changes to minimize the risk of future problems.

The other central charge usually leveled in the bill of particulars concerns Anthony’s handling of an Assurance of Discontinuance – another issue involving appropriate and timely inclusion of the Board in problem-solving that everyone agreed was very well handled in substance. I won’t try to detail the facts here, since lawyer-client discussions that are supposed to be privileged are involved. Since then, Anthony has grown more experienced both in his analysis of issues and his decisions about when to consult with the Board. Since then, Anthony, in conjunction with the Executive Committee, has instituted two important structural changes to ensure that he has other eyes to consider whether something coming across his desk should be raised with the board: our new in-house corporate counsel, Terence Dougherty, who is already proving invaluable, and our new Deputy Executive Director, Dorothy Ehrlich, whose personal skills and long-time ACLU experience as Executive Director of the Northern California affiliate will, in my opinion, wonderfully complement Anthony’s talents. We have many reasons for optimism.

4. The Board has fully debated the “savetheaclu” allegations under our regular, careful procedures.

I have visited the “savetheaclu” website, and I haven’t seen any arguments, or contentions, or suggestions that I haven’t seen many times over the years, in lengthy communications to the National Board from Wendy Kaminer and others. Our Board has debated, at considerable length (32 hours on some of the issues mentioned) many of the allegations made, and also one type of solution offered by our critics: to install people who have been neither elected nor selected according to our usual procedures to hold some investigation or inquiry into Board or ED actions, or to replace our current leadership. The Board considered a proposal for a “committee of inquiry” at considerable length after discussions about the Assurance of Discontinuance issue and decided not to depart from the checks and balances our bylaws and policies and our electoral democracy provide. Our board has voted in a number of elections to retain Nadine Strossen as President, and to reelect some old and elect some new members of the Executive Committee. In the five years since Anthony was hired, there has been considerable turnover on the Executive Committee – at present, half the current committee members are new, as are half the General Counsel. The ACLU electorate has voted to reelect some members of our Board (like myself) and not to reelect others (like Michael Meyers). As to some of these elections and some of these issues, our critics have been simply unwilling to accept that reasonable civil libertarians might hold views different from theirs. Probably every member of our Board has at least one ACLU policy she or he dislikes and perhaps voted against. We all have to live with the fact that we are sometimes outvoted, but that does not mean that it is a good idea to demand that the Board reconsider our previously considered and rejected arguments at every Board meeting, or that it is a good idea to appear on the Bill O’Reilly show and invite contempt for the ACLU as a whole. As civil libertarians, we do believe in democracy and process as well as freedom of speech.

To the extent that the savetheaclu people have any concrete suggestions for how we might do things differently/better, I welcome more speech and more dialogue and I will do my best to consider what everyone has to say in making up my own mind about how to vote on people or on policy. But if the implication is that we, the elected fiduciaries of the ACLU, should change how we vote, either about issues or about our leadership, not because we are ourselves persuaded, but because some number of ACLU members disagree with us, I think we would be justly criticized if we bowed to that form of pressure. Thirty ACLU members, or even 3000, is nowhere near a majority of our membership and the process they seem to propose is outside all of our preordained organizational structures. Board members are accountable to the entire ACLU electorate, not to any self-selected group. If ACLU members do not like how any of us is handling our positions of authority, they can of course use our democratic processes to try to elect different directors.

5. The ACLU is extravagantly transparent.

Although our critics contend that the current management of the ACLU is a cabal trying to suppress information about our actions, our procedures are so transparent that management consultants marvel that we can operate at all. Board meetings are taped; voluminous minutes are prepared by the staff and publicly edited by the Board in a process where proposed changes must be accepted by a majority (to avoid allowing individual Board members to rewrite our history). Executive Committee meetings are taped for the ease of the minute taker (unless privileged matter is being discussed in which case our bylaws require that the President take the minutes). Every Board member is invited, under our bylaws, to attend any Executive Committee meeting, including those held in executive session. The president promptly (within a day or two) reports to the Board what actions the Executive Committee has taken. Board members who ask to listen to a tape of an Executive Committee meeting have always been able to do so. The staff then prepares voluminous minutes of the Executive Committee meeting, which are then edited and voted on by the Committee. These minutes are then made available to the Board. No one, to my knowledge, is proposing any significant change to any of these procedures. Not only are our in person meetings completely transparent, but we even prepare minutes of Executive Committee telephone meetings, which are also made available to the Board. And we have an unofficial Board listserve, where Board members can communicate between meetings in a context where they are asked not to forward our e mails to people not on the Board.

It is because of this unusual degree of transparency that our critics have been able to take quotations from various individuals out of context to try to substantiate their hyperbolic charges. Reporters have been provided with portions of our internal e mails to each other, as well as with tapes and minutes of our meetings. It is obviously difficult to have a full and open conversation about anything under these conditions, but our Board and staff members have been courageous enough to continue to express their varying points of view at our meetings despite hostile attempts to use their words against them, out of context, in the press.

In short, although we are not always perfect, I see no reason to credit charges that we are unprincipled, or out of control. A supermajority of our Board supports our current leadership – Executive Director Anthony Romero and President Nadine Strossen. I wish that even those who do not agree with the majority’s decisions could agree that we are not unreasonable to do so.

As I conclude this attempt to share my own perspective, I know that I face the prospect that one of the savetheaclu advocates will now pick apart my words and my choices about what to explain in order to make me out to be devious, hypocritical, or nothing more than a kneejerk supporter of the ACLU’s leadership. People outside the ACLU cannot know that I consider myself to be a fiduciary of the ACLU rather than a supporter of any individual, and that when I disagree with any action of our current leaders (as I sometimes do), I tell them so, privately and publicly. Because I think it is important that the savetheaclu account of who we are not go uncorrected, I am making the choice that will probably be regarded as painting a target on my own back. I wish that I could go about the business of serving the ACLU and fighting to promote civil liberties rather than having to choose my words in composing this e mail. I wish that our critics would spend their energies and talents fighting along with us during these trying times instead of trying to foment a civil war among civil libertarians.

Susan Herman
Centennial Professor of Law, Brooklyn Law School  

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