Has the Tide Turned in Favor of Disclosure? Revealing Money in Politics after Citizens United and Doe v. Reed
49 Pages Posted: 6 Jul 2011 Last revised: 12 Jan 2013
Date Written: July 4, 2011
This article will cover a short but tumultuous period in the history of campaign finance disclosure law from 2007 to 2010 to highlight the dramatic 180 degree turn that the law has taken on the issue of the constitutionality of disclosure within the past four years. First, I will explore the hostility that many lower courts were exhibiting in the short window between the Supreme Court’s decision in Wisconsin Right to Life II (WRTL II) in 2007 and the Supreme Court’s decision in Citizens United v. FEC in 2010. Basically these lower courts made the mistake of applying WRTL II to disclosure laws. This mistake was corrected by the Supreme Court in Citizens United and Doe v. Reed in 2010. After Citizens United and Doe, lower courts all over the country have adopted the Supreme Court’s view that disclosure and disclaimers can be constitutionally applied to advertisements that feature candidates for office directly before an election. And lower courts have gone further to endorse disclosure around ballot measure fights as well. In other words, in the nation’s courts the tide has turned in favor of disclosure of the sources of money in politics.
Keywords: Citizens United, Doe v. Reed, disclosure, campaign finance, transparency, money in politics, Wisconsin Right to Life II, WRTL, constitutionality, state law, harassment exception, de minimis exception, NAACP v. Alabama, Karl Rove
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