31 Pages Posted: 9 Jun 2010 Last revised: 20 Feb 2011
Date Written: June 9, 2010
An often overlooked aspect of the Supreme Court’s recent decision in Citizens United v. FEC is the sharply contrasting factual accounts regarding disclosure of independent election-related spending. For eight of the Justices, such disclosure is constitutionally defensible because it enables voters to make informed decisions. For Justice Thomas, however, such disclosure is constitutionally suspect because of its potential to result in retaliation and related chilling of First Amendment speech in the form of financial contributions. The continuing importance of these contrasting narratives can be found not only in the pending Supreme Court case of Doe v. Reed, in which the plaintiffs are challenging disclosure of referendum petition signers, but also in the debates in Congress and numerous state legislatures regarding whether to substantially expand disclosure requirements in the wake of Citizens United.
This article questions both factual assertions. Looking first at the informing voters claim, existing political psychology research reveals that whether contributor information provides helpful information to voters depends on what information is disclosed and how it is disseminated to voters. Knowing the identities of numerous smaller contributors is highly unlikely to aid voters, as compared to knowing the identities of larger donors who may be more well-known, and, possibly, knowing aggregate information about smaller contributors such as geographic and industry concentrations. Moreover, even the useful information is more likely to help voters if it is provided in a manner that facilitates their learning of it before the relevant election. As for the retaliation claim, there is sparse evidence that outside of certain specific contexts – civil rights groups during the 1950s and 1960s and communist and socialist parties today – there is much if any retaliation, much less retaliation that rises to a level that raises serious concerns, against contributors whose support becomes known through the existing disclosure rules. That said, the ever increasing access to such information through the Internet may change this conclusion.
While much remains unknown about the effects of political contributor disclosure, what is known suggests at least two changes that could result in better knowledge for voters and, for the first change, less exposure to retaliation or the risk of retaliation for smaller contributors. The first change would be to reduce the public disclosure of identifying information for smaller contributors, releasing only data relevant for aggregation purposes for such contributors. The second change would be to expand the disclosure of information regarding larger contributors through disclaimers on mass media and other large-scale communications that identify not only the group paying for such communications but the major funders of that group. These common sense strategies both match what we know about the effects of disclosure and may have the added benefit of relieving some of the constitutional tension in this area.
Keywords: campaign finance, disclosure, election law, Citizens United v. FEC
Suggested Citation: Suggested Citation
Mayer, Lloyd Hitoshi, Disclosures About Disclosure (June 9, 2010). Indiana Law Review, Vol. 44, p. 255, 2010; Notre Dame Legal Studies Paper No. 10-17. Available at SSRN: https://ssrn.com/abstract=1622760