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.
Progressives thinking about the experience with reform have to grapple with its implications for mobilization, for effective political speech and action. As previously noted here, one traditional reform objective – – regulating issue advertising – – bears reconsideration For years, a priority has been to expand the rules to cover certain issue advertising within election seasons. The authors of McCain Feingold settled on what they took to be an objective test--define the election season as a month to two months before an election, and then capture within reporting requirements ads that simply” refer” to a candidate and are directed to his or her electorate. The ads affected would surely be “sham” ads, intended to influence the election, and disclosure of the financing of these “electioneering communications” would be appropriate, as it is in the case of clear-cut campaign advertising.
But is there such a thing as a genuine issue ad--one that is designed to discuss candidates in relation to issues but without, within the four corners of the ad, expressly calling for the candidate’s election or defeat? Or to put it in doctrinal terms, may the government reporting rules reach ads that do not involve either express electoral advocacy or its “functional equivalent”? The Court in McConnell v. Federal Election Commission took it more or less for granted that genuine issue ads would not be subject to mandatory disclosure. 540 U.S. 93, 206 n.88 (2003) (“ [W]e assume that the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads").
In Citizens United, the Supreme Court devoted a line to the seemingly contrary conclusion, suggesting in the most general terms that "the public has an interest in knowing who was speaking about a candidate shortly before an election." Citizens United v. Federal Election Commission, 558 U.S. 310, 369 (2010). But its discussion on this point was short, and it also appeared in a case that involved a communication--a movie--that was plainly intended to influence voter choice. It was decidedly not a case about “genuine” issues speech.
The Independence Institute, a 501(c)(3) organization, has pressed on this issue with a challenge to the application of the reporting rules to an ad lacking either express advocacy or its functional equivalent--i.e. a "genuine issue ad.” The ad named two Senators, one running for election, in appealing for support of pending legislation on criminal justice reform. A three-judge district court last month rejected the claim that the ad was constitutionally protected. The Court relied on the language of Citizens United. It appeared satisfied that even in the case of a genuine issue ad, a reference to a candidate was sufficient to trigger the electioneering communication disclosure requirements. Independence Institute v. Federal Election Commission, No. 14-cv-1500, 2016 WL656396 (D.D.C. November 3, 2016).
One question recently raised here is whether in thinking about campaign finance reform, New York Times editorialists and their followers would place a limit on how much would be spent, and how negatively, to keep Donald Trump out of the White House. The Times believes him to dangerous to the country, entirely unfit for office, at the same time that it counsels that the process by which he or any candidate is evaluated must include restrictions on expenditures to urge defeat (or election). It is fair to note these tensions, testing reform principles and intuitions in the concrete conditions of electoral competition where there are found real candidacies, meaningful choices, and serious consequences.
A similar test might be conducted in the case of limits directed toward the timing of certain speech. Under campaign finance jurisprudence, the First Amendment recognizes a difference between fully protected “issues” speech and the speech with the effect or purpose of influencing elections that may be regulated to prevent corruption or its appearance. The reforms of recent years have whittled away at the distinction, regulating electioneering communications on policy issues that may contain a reference to a candidate and so, being close to an election, could sway voters. The usual formula ropes this speech into regulatory control within thirty or sixty days of an election.
The reform theory has been that the purpose of such communications is likely to influence an election, and if not the purpose, then its effect, and records have been assembled to establish that the spenders have in mind to make a mockery of the law and that stricter enforcement is therefore essential. In the thick of the election, it is argued, the candidate/issue line distinction does not hold, and the aims of campaign finance laws, both limitations and disclosure, should control. The Supreme Court has trimmed back this theory, and a now complex jurisprudence allows for election season-specific regulation of communications “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Wisconsin Right to Life v. Federal Election Commission, 551 U.S. 449, 469-470 (2007).
In the current election, the Trump candidacy will test acceptance of the basic reform tenet about the election season regulation of issues speech. With the debate about Trump has come a debate about the package of stances that has come to be known as “Trumpism.” A number of his supporters have defined it as “ secure borders, economic nationalism, interests-based foreign policy, and above all judging every government action through a single lens: does this help or harm Americans?” It is recognized that the program cannot be argued, for or against, without reference to Trump: “For now, the principal vehicle of Trumpism is Trump.” And Trump critics, ones as severe as Paul Krugman, recognize the “Trumpism” behind Trump.