48 Pages Posted: 2 Nov 2012 Last revised: 15 Jul 2013
Date Written: October 29, 2012
Campaign finance law is in shambles, and many believe that wealthy, shadowy interests dominate American politics. Reformers have rested their hopes on disclosure — mandated, public disclosure of what individuals, corporations, super PACs, and others spend on politics. Reformers argue that disclosure provides valuable information to voters, and the Supreme Court agrees. Opponents, on the other hand, vilify disclosure for chilling speech and infringing the First Amendment rights of speakers. Both positions — disclosure informs voters, disclosure chills speech — have become conventional wisdom.
This Article challenges that wisdom. First, it shows that disclosure does not necessarily inform voters. Rather, it creates an information tradeoff. Revealing sources of speech provides voters with information, but disclosure can also chill speech, and that takes information away — the information contained in the chilled speech. When the second effect outweighs the first, disclosure actually reduces voter information. Second, this Article argues that disclosure does not necessarily chill speech. It can thaw it. By providing potential speakers with information about the positions and credibility of candidates, disclosure can prompt actors to speak when they otherwise would not. When disclosure thaws speech, there is no information tradeoff. Voters gain information in two ways — source revelation and more speech acts — and lose it in none. When disclosure thaws speech, it promotes exactly those First Amendment values it is thought to undermine.
Keywords: campaign finance disclosure, first amendment, information interest, chilling effect
Suggested Citation: Suggested Citation
Gilbert, Michael D., Campaign Finance Disclosure and the Information Tradeoff (October 29, 2012). Iowa Law Review, Vol. 98, p. 1847, 2013; Virginia Law and Economics Research Paper No. 2012-13; Virginia Public Law and Legal Theory Research Paper No. 2012-66. Available at SSRN: https://ssrn.com/abstract=2168343