The Independence Institute case, a challenge to the regulation of issues speech, has attracted a sizeable roster of amici in support of Supreme Court review. So far the line-up is largely conservative and libertarian, and yet, notably, the arguments are ones that in the Age of Polarization might also —and should– find an audience among progressives. The issue is the constitutional protection available for anonymous issues speech that a speaker, or an association of speakers, may engage in to limit the risk of reprisal or harassment.
For progressives as well as others, there are reasons to take this issue seriously: and some, pointing to Donald Trump, say he is the reason. Jim Rutenberg, reporting on Bill Maher’s belief that free speech may be under siege, writes this:
It’s amazing how much anxiety Mr. Trump’s imminent inauguration is stirring in the free-speech business — but perhaps not surprising given his open hostility toward the press, his willingness to use his platform against any who cross him and his seemingly proud dismissal of the government and political norms that precede him. No one knows whether a year from now, we’ll see today’s fears as overblown, underblown, or on point.
These observations explain in part the general reluctance of progressives to take up the cause more formally. For them, the “anxiety…in the free speech business” has been triggered by the rise of Trump. But they cannot know what the future holds: maybe they will find their fears to be “overblown.” The problem may appear to them to be highly localized, to last only as long as the new president’s term in office. The New Normal could prove to be ephemeral.
If the world is returned to the Old Normal, progressives may then resume their standard advocacy of expansive disclosure of those funding, out of their own pocket or that of others, issue advocacy. They are motivated, properly, by the belief that political inequality should not be exacerbated by income inequality. They come to the issue from a long history of concern with issue speech being “sham,” much of it electoral speech in disguise.
But these commitments need not mean that progressives must surrender all support for anonymous issues speech, or make an exception only to address the challenge from a particular adversary. As the political scientist Bruce Cain wrote well before the 2016 election: “The argument for preserving the privacy of individual citizen identity for those who participate in constitutionally approved ways is strong if the goal is full participation and citizen autonomy.” Democracy, More or Less 54 (2015). Cain has suggested “semi-disclosure” to protect against the identification of individual contributors while making public other information in “census-like categories” about the sources of a candidate or political committee’s support. There has also been openness in some progressive circles to protecting the “small donor” by raising the threshold for the public disclosure of personal identifying information.
Independence Institute is about the protection of issues speech when it is expressed in a campaign season, months out from Election Day, without any reference to candidates or elections, and unquestionably involving public policy issues. As collection of prominent political scientists and constitutional law professors have written in an amicus brief, the courts have left the constitutional question in a state of uncertainty when “the sad fact in today’s world is that people whose viewpoints are displeasing to the modern mob (namely, the bullying power of social media), or to bureaucracies with discretionary power over their lives or businesses, suffer a grave risk if they communicate those unpopular views without the protective cloak of anonymity.”
Progressives, looking ahead to the coming years of struggle, would not deny this “sad fact.” So they have an interest in this question now before the Court, and it is a question that at this stage in our politics was certain to arise even if the identity of the individual taking the oath of office this coming Friday might have been different.