When board members Wendy Kaminer and Michael Meyers questioned him about the Ford Foundation letter, Romero revealed that he had agreed to similar language in accepting money from the Combined Federal Campaign (CFC), a program that allows federal employees to make donations from their paychecks to approved nonprofits. The CFC grants required recipients to certify that they do not "knowingly employ" anyone listed on federal antiterrorism watch lists. Ultimately, the ACLU rescinded the pledges, turning down about $2 million from the Ford Foundation and $500,000 in CFC donations, though it still receives some CFC funds.
Romero says he regarded both of the pledge clauses as mere formalities, to be agreed to and then forgotten, so he didn't consult the board. Such high-handed methods are typical at many nonprofits, where executive directors call the shots and boards rubber-stamp their actions. But not at the ACLU. A faction of the board regarded signing off on such language without approval as a cardinal sin. In their eyes, Romero had betrayed the core principles of the organization. Making matters worse, Romero was less than candid about his earlier role in the controversy as the crisis unwound.
Public airing of the ACLU's dirty laundry in the pages of the New York Times set off predictable attempts by Romero's allies to plug internal leaks. In 2005 management proposed, and then withdrew, employee confidentiality rules. The next year an eleven-member board committee attempted to circumscribe "the rights and responsibilities of board members," who under ACLU bylaws are guaranteed the right to freely express their opinions. That effort, too, was quickly set aside when it encountered a stormy response after public disclosure. Efforts by Romero's supporters to quiet dissident board members only fueled the fire. At the height of the controversy, about a half dozen board members either resigned or were voted off by the majority.
In September 2006 the dissidents launched a website called SavetheACLU.org, calling for new leadership and documenting the minutia of the conflict. Glasser — Romero's former champion and mentor — joined efforts to sanction him. "I believe the soul of the organization and the integrity of its long-term mission is at stake, and that is no small matter," he said in a public statement. "I grieve over the loss of the ACLU's candor and its commitment to honesty and its growing intolerance for dissent and free speech within its own ranks."
Within weeks Romero's supporters responded with a website of their own, VoicesfortheACLU.org. Then last year Kaminer, a Boston-based lawyer and writer, published Worst Instincts: Cowardice, Conformity, and the ACLU (Boston: Beacon Press, 2009), an assault on Romero's ethics as executive director. "Internal governance debates and internal oversight had been deeply, perhaps irrevocably, compromised, and the ACLU's post-9/11 work — the excuse for ignoring Romero's "mistakes" — was being compromised in turn," Kaminer charged. "ACLU members were being misled."
In an interview, Kaminer describes Romero as a "compulsive and pathological liar." But Sam Walker, a former ACLU board member and emeritus professor of criminal justice at the University of Nebraska at Omaha, denounced her book with an open letter of his own, writing that Worst Instincts is "utterly unbalanced and unfair, and completely misrepresents the work of the ACLU."
By last year the dissidents' website had come down and now, to all but the immediate principals, the internal feud seems spent. Romero, however, emerged chastened. "I was young and inexperienced," he says. "There was enormous pressure along the way. I made mistakes. Dealing with the board was a very big culture shock for me. The harshest thing anyone ever said to me at the genteel Ford Foundation was 'That's interesting.' So, I've learned to stop and consult."
These days Romero has a much better relationship with the board. Over the years there has been considerable turnover — skeptics might say Romero has molded and tamed it, put his stamp on it. He says he regrets not having been more up front and "absolutist" about language he agreed to in the Ford Foundation grant. Still, Romero says, "In the end, judge us by the work we've done."
On that score, even one of Romero's harshest critics acknowledges his achievements. "Although he found an organization in excellent financial health when he arrived," Glasser publicly stated in 2006, "he has raised large additional amounts of money and has substantially increased the ACLU's annual income, its assets and its membership."
In a crass sense, the Bush administration was good for business. ACLU membership grew from less than 300,000 before 9/11 to more than 500,000 today. Annual revenue surged from about $40 million to over $100 million just before the 2008 financial crash. Yet the surge in membership and income begs a question: Was the ACLU's growth driven by Romero's leadership, or by a broad-based rejection of the Bush administration's national security policies?
Former board member Walker is adamant that Romero himself was critical to the ACLU's rapid turnaround. "Check out what he has done with the affiliates," says Walker, who has written one of the definitive histories of the ACLU. Through a program called the Strategic Affiliate Initiative, Walker says, Romero put substantial new funds into the ACLU's local chapters. Since 2006, for instance, the Florida ACLU has received almost $2 million; funding for the Mississippi ACLU has allowed it to hire its first legal director and ten full-time staff members.
Affiliates have long been the vehicles through which the ACLU obtains most of its legal clients. (California has three chapters: ACLU of Northern California; ACLU of Southern California; and ACLU of San Diego and Imperial Counties.) The affiliates have the political relationships that provide leverage in passing legislation. And they provide the means for local organizing. So in addition to Florida and Mississippi, Romero bolstered the budgets of chapters in Texas, New Mexico, Montana, Michigan, Missouri, and Tennessee, with plans to expand to two others. The presence of electoral swing states on this list is no coincidence; without getting directly involved in elections, the program seeks to influence conservative strongholds often hostile to ACLU positions.
"The ACLU under Romero has done a really bang-up job," says Michael Ratner, board president and former legal director of the Center for Constitutional Rights. CCR was the first civil liberties group to represent Guantanamo Bay detainees; it had to sue the US military just to obtain their names.
Even members of the National Lawyers Guild — the ACLU's much scrappier, left-wing cousin — tend to speak well of Romero's leadership. For decades, according to Walker, the NLG had often criticized the ACLU for its "pious even-handedness" — dating from its policies during the McCarthy era and continuing to the notorious 1977 Skokie case, in which the ACLU defended the right of neo-Nazis to march through a predominantly Jewish suburb of Chicago. Today, however, San Francisco's Ben Rosenfeld, a civil rights lawyer and longtime NLG member, calls the ACLU "diligent and principled in its challenge to the war on terror."
Much of Romero's day-to-day work at the national office is fund-raising, which has gotten much more difficult since the crash of '08. Several of the ACLU's biggest donors were wiped out in Bernie Madoff's Ponzi scheme, and many others are down 30 percent in holdings and scared. "I tell them, this is like Harvard, a permanent institution," Romero says. "We are a fixture of the American political landscape, and we're not going away." Then he adds, "Civil liberties struggles are a marathon, not a sprint."