The Surprisingly Complex Case for Disclosure of Contributions and Expenditures Funding Sham Issue Advocacy
Posted: 6 Feb 2001 Last revised: 24 Jul 2013
Date Written: 2000
In the seemingly endless debate between supporters and detractors of campaign finance limits, one thing both sides seemed to have agreed upon is the need for effective disclosure of campaign contributions and expenditures. However, consensus on the need for disclosure appears to be crumbling. This article considers the constitutionality of disclosure of contributions and expenditures used to fund sham "issue advocacy," that is electioneering advertisements that avoid words of "express advocacy" like "Vote for Smith." Sham issue advocacy has exploded in recent years, and is generally not subject to disclosure under federal or state law. This article explains why legislation that directly targets sham issue advocacy faces constitutional challenges and considers how those constitutional problems perhaps may be solved. Disclosure laws have the best chance of passing constitutional muster if they contain clear standards for disclosure that are not overly burdensome. Even such laws, however, run a risk of unconstitutionality on overbreadth grounds, because they will regulate some speech that is not unambiguously related to the election. I argue however, that such overbreadth can be limited to a very small number of cases, and, as minimized, such disclosure laws should be upheld as constitutional. In the end, anything but a rule allowing disclosure of sham issue advocacy will seriously hamper meaningful campaign finance regulation. Thus, it is worth every effort to craft constitutional disclosure laws.
Keywords: campaign finance, issue advocacy, contributions, expenditure limits, disclosure, constitutional law
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