The Public's Right to Know versus Compelled Speech: What Does Social Science Research Tell Us about the Benefits and Costs of Campaign Finance Disclosure in Non-Candidate Elections?
Carpenter, Dick, Milyo, Jeffrey, Fordham Urban Law Journal
Introduction I. Disclosure Regulations in the States A. Ballot Measure Elections B. Grassroots Issue Advocacy II. Why Disclosure? A. The Transparency Rationale for Disclosure Laws III. Lessons from the Social Science Literature A. Re-Examining the Value of Cues B. Re-Considering the Benefits of Disclosure C. Re-Considering the Costs of Compelled Disclosure IV. Discussion
The National Conference of State Legislatures has called campaign finance disclosure the most basic form of campaign finance regulation and further notes that "[a]ll states require some level of disclosure from candidates, committees, and political parties of the amount and source of contributions and expenditures." (1) One function of campaign finance disclosure is to prevent corruption in candidate elections. (2) The manner in which disclosure may deter corruption is not difficult to imagine. For example, disclosure reports may be examined by investigative journalists and opposition researchers looking for evidence of unsavory relationships between contributors and candidates. Further, disclosure of contributions to candidates may facilitate the enforcement of contribution limits in candidate elections. After all, it would be difficult to know whether a contribution limit has been violated without some accounting of how much contributors have given to candidates.
In this Article, we question neither the desirability of creating transparency in the ties between candidates and their contributors, nor the efficacy of disclosure regulations in affecting this end. This is despite the fact that several recent studies cast doubt on the extent to which state campaign finance laws reduce either corruption or the appearance of corruption. (3) Rather, we focus on compelled disclosure of political finances in non-candidate contexts, such as ballot measure elections and grassroots issue advocacy. Grassroots issue advocacy is "any effort to organize, coordinate or implore others to contact public officials in order to affect public policy." (4) We argue that the extension of disclosure regulations to political activities unrelated to candidate elections cannot be justified in a similar way as a means to prevent corruption. In non-candidate contests, there can be no revelation of an unsavory relationship between a contributor and a candidate because, simply, there is no candidate. Similarly, because contribution limits do not exist outside of candidate elections, disclosure cannot facilitate the enforcement of non-existent contribution limits in non-candidate contexts.
Another argument for disclosure regulations in non-candidate elections is that compelled disclosure of the finances of groups engaged in non-candidate political activities provides voters with vital information while at the same time imposing no real costs on those groups. (5) In our experience, this argument is a fairly conventional view among advocates for increased disclosure, so for ease of exposition, we will dub it "the conventional view" of disclosure. However, we take issue with both elements of this view: first, that disclosure provides vital information to the general public and, second, that disclosure regulations impose little cost on political speakers and groups.
We identify several challenges to the conventional view of disclosure requirements. In short, there is little support from the social scientific literature for the notion that compelled disclosure generates important public benefits by augmenting voters' knowledge. However, there is evidence that disclosure regulations may impose significant costs on political activity. This does not necessarily weigh against disclosure laws in candidate-centered elections, as there still remains the anti-corruption rationale for such regulations. Nevertheless, our findings do call into question the rationale for extending compelled disclosure to other political contexts. …