Through a Glass, Darkly: The Rhetoric and Reality of Campaign Finance Disclosure

59 Pages Posted: 28 Mar 2014 Last revised: 19 Jun 2014

See all articles by Jennifer Heerwig

Jennifer Heerwig

Harvard University - Edmond J. Safra Center for Ethics; Stony Brook University

Katherine Shaw

Yeshiva University - Benjamin N. Cardozo School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: June 18, 2014

Abstract

In Citizens United v. FEC, the Supreme Court swept away long-standing limits on corporate spending in federal elections, but it also strongly affirmed the constitutionality of robust disclosure and disclaimer requirements. In the wake of that decision, many proponents of campaign finance regulation have turned their attention to disclosure as the best remaining mechanism by which to regulate money in elections. At the same time, opponents of campaign finance regulation — including the legal team behind Citizens United — have trained their sights on disclosure, filing new challenges to existing disclosure require- ments in a number of state or federal courts, although so far with only limited success.

Relying on the Longitudinal Elite Contributor Database (LECD) — an original database developed by one of the authors to track the population of unique individual campaign contributors from 1980 through 2008 — this essay tests the Supreme Court’s rhetoric about disclosure, and some of the premises of our current policy debates about money in politics, against the realities of the FEC’s existing disclosure regime. In particular, we find that compliance with existing disclosure regulations is inconsistent and that the current regime fails to identify the most potentially influential players in the campaign finance system. In so doing, the current system fails to provide basic facts about how candidates (and committees) finance their campaigns. We suggest that much of what the Court and reformers assume about disclosure is wrong — that their views are premised on an effective and well-functioning disclosure regime that in fact bears scant resemblance to the system of disclosure maintained by the FEC. Correcting these misunderstandings will be critical to crafting better reform proposals. And the stakes could not be higher: disclosure may well be the only constitutionally viable and politically feasible method of regulating money in elections in a post-Citizens United world.

Keywords: Campaign Finance, Disclosure, Election Law, Campaigns and Elections, Law of Democracy

Suggested Citation

Heerwig, Jennifer and Shaw, Katherine, Through a Glass, Darkly: The Rhetoric and Reality of Campaign Finance Disclosure (June 18, 2014). Georgetown Law Journal, Vol. 102, p. 1443, 2014; Cardozo Legal Studies Research Paper No. 424. Available at SSRN: https://ssrn.com/abstract=2416591

Jennifer Heerwig

Harvard University - Edmond J. Safra Center for Ethics ( email )

124 Mount Auburn Street
Suite 520N
Cambridge, MA 02138
United States

Stony Brook University ( email )

Health Science Center

Katherine Shaw (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

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