During the 2017 nomination of Justice Neil Gorsuch to the Supreme Court, the Judicial Crisis Network (JCN) spent approximately $10 million on television advertisements pushing the Senate to confirm President Donald Trump’s nominee.
The group had earlier spent $7 million to block President Barack Obama’s choice, Merrick Garland.
Because it was registered as a 501(c)(4) “social welfare” nonprofit, JCN could spend unlimited amounts of money on such advocacy without having to disclose the source of its funding.
JCN’s mandatory 2015–2016 tax disclosure showed that it received just three donations in total during that period and that 96.6% of its revenue came from a single group that contributed $23.4 million.
That group was later revealed to be The Wellspring Committee—itself a 501(c)(4) nonprofit—which in turn received over $32 million in donations in 2016, with $28.5 million coming from a single, anonymous donor.
Similar “dark money”
organizations spent at least $183 million on television and radio ads in the 2016 election, funding one-third of such ads in House and Senate races.
For the 2018 midterm elections, dark money organizations spent around $150 million.
Under the current jurisprudential landscape, it seems unlikely that a statute mandating greater campaign finance disclosure from dark money organizations like JCN would be considered presumptively unconstitutional.
This makes disclosure unique from other forms of campaign finance regulation, which have received less favorable rulings from the Supreme Court.
However, this favorable landscape may be starting to shift as deregulation advocates who originally argued against other forms of campaign finance regulation are now turning their sights against disclosure.
The current jurisprudence centers on an “informational interest” advanced by disclosure that is sufficient to outweigh potential burdens on speech.
While this interest is generally understood as the value of publicizing information about the sources of campaign spending,
no consensus exists over how best to assess the utility of the information disclosed.
Courts have at one time or another suggested that the value of disclosure depends on the type of election, the amount of money spent, and the timing and frequency of the disclosure.
This has led one commentator to remark that courts tend to “assume rather than explain the informational interest,” which “does not itself suggest who should disclose what, or how.”
Another has noted that the interest “feels more like a workaday technocratic concern than a value with constitutional dimensions.”
Yet ever since the Supreme Court’s seminal campaign finance decision in Buckley v. Valeo,
courts have held that disclosure’s informational interest is sufficient to justify incidental burdens on political speech.
This remains the case even if the overall value of the disclosed information is unclear.
The lack of clarity has left lower courts wrestling with how best to evaluate various disclosure regimes nationwide, leading to a disorganized line of cases that stymie legislatures attempting to craft further campaign finance reform.
Thus, disclosure proponents could benefit from a clearer—and perhaps more robust—understanding of the constitutional interests advanced by disclosure.
This Note adds to the existing literature in three ways. First, it argues that the most common articulation of disclosure’s informational interest—that disclosure can help educate voters—is coming under strain from research across various disciplines that challenges this assertion. Second, it summarizes lower court decisions after Citizens United v. FEC and concludes that courts have actually invoked different rationales for how disclosure accomplishes its informational interest. Each rationale serves distinct constitutional values, effectively turning the interest into an amorphous umbrella term that is applied with little consistency. This has resulted in inter- and intracircuit discrepancies over which disclosure requirements are constitutional and which are not. Finally, this Note provides a pathway toward clarifying the doctrine by suggesting that placing a greater emphasis on disclosure’s ability to generate increased political discourse can provide a more robust defense of future reforms.
Part I explores the development of the informational interest in campaign finance jurisprudence and the implications of the Supreme Court’s doctrine. Part II analyzes critiques of both disclosure’s efficacy and its current jurisprudence that have put disclosure on the defensive. Part II also demonstrates how lower courts have struggled to suggest a consistent understanding of the interest and discusses the problems that will result from this inconsistency. Finally, Part III suggests a way to clarify the ambiguity in the doctrine by providing a more robust understanding of disclosure’s informational benefits.
I. The Informational Interest in Campaign Finance
This Part examines the development of the modern campaign finance landscape and the implications of the Supreme Court’s jurisprudence on the informational interest. Part I.A describes the current state of disclosure and highlights some of the slight—yet significant—differences across disclosure regimes. Part I.B then examines the development of the informational interest in campaign finance jurisprudence.
A. The Current State of Campaign Finance Disclosure
Disclosure has been a tenet of campaign finance law since states first passed such measures in the late nineteenth century.
Congress’s first attempt at creating a disclosure requirement was the Publicity Act of 1910, which required political committees in congressional races to keep detailed records of campaign spending.
This requirement was expanded to presidential races in 1925.
Congress’s modern campaign finance regulation began in 1972 with the passage of the Federal Election Campaign Act (FECA).
FECA established the Federal Election Commission
and required candidates and political committees
to publicly report the source of any contribution
and the recipient of any expenditure over $200.
Individuals who spent more than $250 were subject to the same requirements.
In 2002, Congress expanded FECA’s disclosure regime by passing the Bipartisan Campaign Reform Act (BRCA).
BRCA expanded the range of activities that trigger disclosure and required any entity that spent more than $10,000 on “electioneering communications”
in a single year to file a more detailed disclosure report.
BRCA also mandated that disclaimers detailing the entity responsible for the advertisement be broadcast alongside any electioneering communication.
FECA and BRCA remain the two major federal laws guiding campaign finance today.
Currently, all fifty states mandate some form of political disclosure,
but regimes vary across the country. While thirty-three states require political action committees (PACs) to disclose at least some information about their electoral involvement,
the level at which disclosure is triggered and the type of information disclosed differ depending on the jurisdiction. For example, Alabama requires disclosure of a donor’s name and city of residence only when an entity gives more than $100 in a calendar year to any candidate or PAC;
Ohio requires all entities that donate to candidates and PACs to disclose their name and address and requires donors who give more than $100 in a calendar year to also disclose their principal occupation and employer.
Some states also distinguish between committees formed for candidate advocacy, those formed for non-candidate “issue” advocacy, and those formed simply to make independent expenditures.
In short, while all states have some form of disclosure requirement, the variance between regimes may create adjudicative difficulties for courts if a consistent doctrine for evaluating disclosure is lacking.
Despite these efforts, dark money has grown in influence. According to one report, the level of dark money spending in federal elections increased thirty-four-fold between 2006 and 2014.
The increase was even greater for state and local elections.
Under federal and most state law,
individuals can avoid disclosure if they donate to 501(c)(4) “social welfare,” 501(c)(5) “union,” and 501(c)(6) “trade association” nonprofit organizations or to anonymous LLCs.
These groups can receive unlimited donations and make unlimited expenditures on political advocacy so long as the spending is less than half of the organization’s total spending in a calendar year.
However, they can still contribute directly to candidates, political parties, or other PACs, meaning that the root source of funding remains unknown.
Ultimately, if political spending increases, the amount of money spent anonymously will inevitably also rise.
B. The Current Jurisprudence of the Informational Interest
Political speech is at the core of First Amendment protection,
and thus courts generally apply heightened scrutiny when examining limits on campaign contributions and expenditures.
These limits are often characterized as placing a “ceiling” on potential speech.
Courts are more lenient when examining mandatory disclosure requirements, subjecting them to a less stringent “exacting” scrutiny that requires only a “substantial relation” to a “sufficiently important” interest.
When applying “exacting” scrutiny, the Supreme Court has consistently recognized an “informational interest” that is sufficiently important to outweigh potential burdens on speech.
This section analyzes the evolution of this interest and how the Court has failed to define the values it advances with sufficient specificity.
1. Buckley v. Valeo and the Development of the Informational Interest. — The Supreme Court’s campaign finance jurisprudence began in 1976 with Buckley v. Valeo. Buckley involved a challenge to FECA’s campaign spending limits,
as well as its expansive disclosure regime.
While the Court struck down FECA’s campaign expenditure limits, it left most of the law, including its disclosure requirements, intact.
The Court conceded that disclosure could “seriously infringe on [the] privacy of association and belief guaranteed by the First Amendment”
and would “undoubtedly . . . deter some individuals [from spending] who otherwise might contribute.”
Yet this chilling effect did not outweigh the governmental interests served by disclosure. The Court noted that disclosure helps deter corruption by publicizing illegal campaign spending and facilitates data gathering to better enforce various campaign finance laws.
Finally, “disclosure provides the electorate with information ‘as to where political campaign money comes from and how it is spent by the candidate’ in order to aid the voters in evaluating those who seek federal office.”
This has become known as the “informational interest.”
However, the Court dedicated little more than one paragraph out of its 144-page per curiam opinion to explaining the interest,
simply holding that disclosure
allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches. The sources of a candidate’s financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office.
Put simply, disclosure informs voters and helps them make decisions at the ballot box. First, it can send signals as to who is aligned with whom, allowing voters to “piggyback” off of others’ assessments.
In other words, it offers a form of public endorsement through spending.
Second, it allows voters to judge which policies a candidate may actually pursue once in office.
Even if a voter already knows a candidate’s stated positions and can place her on the conventional political spectrum, disclosure remains useful in signaling which promises the candidate intends to keep. These two “voter-education” benefits of the informational interest have remained the bulwark for disclosure ever since.
2. Developments Between Buckley and Citizens United. — Buckley upheld FECA’s disclosure requirements, but left open the possibility of future as-applied challenges if “the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment, or reprisals.”
In Brown v. Socialist Workers ’74 Campaign Committee, the Court exempted the Ohio Socialist Worker’s Party from a state statute requiring political parties to disclose the names of its members, because “[m]inor party candidates ‘usually represent definite and publicized viewpoints’ well known to the public.”
Put differently, because it was unlikely that any voter was unaware of the views of the Socialist Party, the informational value of disclosure was low. Thus, the Court reasoned that the threat of retaliation against members of the unpopular party outweighed any of disclosure’s supposed benefits.
In subsequent challenges, the Court has continued to make implicit judgments on the value of disclosure without articulating its constitutional dimensions. For example, in First National Bank of Boston v. Bellotti, the Court struck down a Massachusetts law prohibiting corporations from spending money on any ballot campaigns unless the initiative involved the corporation’s business interests.
Although no disclosure requirement was directly challenged, the Court suggested that “[i]dentification of the source of advertising may be required as a means of disclosure, so that the people will be able to evaluate the arguments to which they are being subjected.”
However, in McIntyre v. Ohio Elections Commission, the Court struck down an Ohio prohibition against anonymous leafleting by holding that the state’s “informational interest is plainly insufficient” to outweigh the burdens of the measure.
The petitioner in the case had distributed leaflets against a proposed increase in the local school tax levy.
However, the leaflets did not identify her by name, a violation of Ohio law that resulted in a $100 fine.
Importantly, by suggesting that voters may be interested in knowing the source of the speech in Bellotti, but not in McIntyre, the Court was implicitly judging the value that disclosure provides to the public without fully explaining any of its informational benefits.
3. Citizens United: The Informational Interest Takes Center Stage. — Citizens United ushered in a new era of campaign finance that replaced spending limits with mandatory disclosure as the preferred mechanism of regulation.
While the Court split 5-4 in striking down BRCA’s corporate expenditure limits, eight justices reaffirmed the constitutionality of disclosure.
Yet the decision continued much of the ambiguity surrounding the informational interest. Notably, the Court did not address disclosure’s anticorruption or enforcement interests from Buckley, holding instead that “the informational interest alone is sufficient to justify application of [the disclosure requirements].”
Disclosure’s informational benefits included: providing the public with knowledge about who is speaking,
aiding the electorate in evaluating arguments being made,
and avoiding voter confusion.
These benefits were all grouped under the umbrella of the informational interest, yet they represent distinct visions of disclosure, as different pieces of information accomplish the different goals expressed. A simple disclaimer may be sufficient to educate voters on who was speaking about a candidate to avoid confusion, but a more comprehensive financial disclosure revealing the sources of one’s funding would likely be needed for voters to fully evaluate the potential biases of each candidate’s platform. However, the Court refrained from articulating how disclosure accomplished these divergent goals, instead characterizing BRCA’s disclosure regime as a less onerous alternative to BRCA’s unconstitutional expenditure limits.
Disclosure did not place a “ceiling on campaign-related activities” or “prevent anyone from speaking” and was therefore preferable to more traditional forms of campaign finance regulation.
Decisions after Citizens United have continued this uncertainty, with the Court rarely spending more than a paragraph discussing the informational interest. In Doe v. Reed, decided the same year as Citizens United, the Court upheld a Washington statute that allowed the identities of signatories to state referendums to be revealed
—a form of disclosure in direct democracy elections that the Court had been hesitant to embrace in McIntyre.
Washington advanced an “informational interest” to support the statute, but the Court refused to address it, holding instead that “the State’s interest in preserving the integrity of the electoral process” was sufficient alone to justify the statute.
It thus remains unclear whether the informational interest can be used to uphold disclosure in the direct advocacy context, and lower courts have since split on the issue.
The Court’s most recent campaign finance decision, McCutcheon v. FEC, resulted in a similarly thin discussion, with the Court again spending less than a page covering the issue with little more than a cursory citation to Buckley.
Disclosure has thus enjoyed relative success when challenged alongside other forms of campaign finance regulation.
However, given that most other regulations are now unconstitutional after Citizens United,
it is inevitable that individual challenges against disclosure will increase.
Indeed, when the Supreme Court has upheld disclosure, it has often been because a larger, more burdensome regulation was challenged alongside it, giving disclosure the appearance of being of being a “less restrictive alternative to more comprehensive regulations of speech.”
However, given the Court’s brief treatment of disclosure’s informative value, it will be important to parse out the informational interest’s doctrinal implications to better understand its constitutional foundations for future reform.
II. Lower Courts’ Application of the Informational Interest: Inconsistent and Vulnerable to Challenge
This Part demonstrates how external theoretical pressures against disclosure and internal inconsistencies surrounding the informational interest have placed disclosure on shaky constitutional footing. Specifically, two problems plague the doctrine. First, the presumption that campaign finance information can competently educate voters is coming under strain from research that has demonstrated the inefficacy of mandatory disclosure regimes. Second, courts’ inability to settle on a consistent rationale for how disclosure provides useful information has led them to invoke several distinct versions of the informational interest, with disclosure serving divergent roles under each perspective. This has led to both inter- and intracircuit disagreements over which disclosure regimes are constitutional and which ones are not.
Section II.A describes how the predominant view of disclosure—that it can effectively educate voters—is coming under strain. Section II.B then summarizes the challenges to disclosure regimes in the lower courts and finds that while most courts continue to uphold disclosure under this unstable “voter-education” framework, they have nevertheless differed in characterizing how disclosure accomplishes that goal. Section II.C identifies the adjudicative problems that arise from this inconsistency. Ultimately, these problems threaten the constitutionality of current laws while hindering the ability of legislatures to craft future reform.
A. Threats to the Predominant “Voter-Education” Justification for Disclosure
Although the Supreme Court has not articulated disclosure’s “informational interest” with any specificity, the predominant view of scholars and courts is that disclosure educates voters and helps them make better decisions at the ballot box.
This section summarizes two growing concerns with this view and argues that any attempt to clarify the informational interest must be able to address these concerns.
1. Voter Competency. — If disclosure is intended to enhance voters’ ability to make decisions, then their capacity to understand how the disclosed information is relevant to the electoral arena becomes critical in assessing the validity of different legal regimes.
However, the rosy conception that disclosure is “capable of creating . . . an informed and competent electorate able to critically evaluate campaign-related speech”
is threatened by a growing view that undeserved reliance on disclosure is actually helping facilitate many of the problems it was attempting to prevent.
Even if voters can comprehend the information, courts have not articulated whether that result is inherently valuable
or if it is a means to a more tangible end, such as better policy outcomes.
Several critiques suggest that mandated disclosure might be unlikely to have any real effect on voter decisionmaking.
First, if the belief is that disclosure will encourage better policies, then voters must actually be capable of using the information to make “good” decisions (however that is defined).
Yet voters have been characterized as “rationally ignorant” and often vote against their self-interest.
While these assertions are nearly impossible to verify empirically, the sparse evidence that exists suggests that voters are unable to use electoral information effectively.
Analyses of protransparency policies in other contexts have suggested that when disclosure is used as a means for nebulous goals—like better “governance” or increasing trust in government—the effects have been negligible at best.
Second, the amount of disclosed data could overwhelm voters to an extent that it renders disclosure useless.
Evidence from other disciplines has demonstrated that the anticipated benefits of ever-greater transparency have largely failed to materialize, as individuals become unable to comprehend the breadth of available information.
For example, one aggregate study found that disclosures were effective “only when they provided facts that people wanted in times, places, and ways that enabled them to act.”
This was true even if there was little information available beforehand.
Yet information above a certain amount subjected individuals to an “information overload” that actually reduced the effectiveness of previous disclosures.
The educational benefits of campaign-related disclosure could be even more attenuated because information about the positions of candidates and ballot issues is already plentiful.
When information in the electoral marketplace is already saturated, adding to the glut further could reduce the efficacy of other information that would have been more useful to voters.
Commentators discussing mandatory disclosures more generally have suggested that disclosed information must be kept simple if it is to have any effect toward intended objectives.
However, this suggestion may be unavailable in the campaign finance context. Campaign spending information is inherently complex: It involves individual contributions to dark money groups, PACs, super PACs, party organizations, or candidates directly. These organizations (with the exception of super PACs) can then contribute to one another or engage in independent spending.
This complexity may preclude any disclosure regime from offering simple information without sacrificing something vital.
Ultimately, any clarification of the informational interest will need to address how different disclosure regimes may alter the informative effect of each policy.
2. Distracting Away from Substantive Issues. — Disclosure could actually distract voters from the substantive issues at stake in the election by “direct[ing] attention away from the content of an ad,” suggesting to voters that they “need not evaluate the content.”
If voters are susceptible to certain “informational shortcuts,”
then publication of donor sources could render voters unreceptive to new arguments by causing them to rely instead on the confirmation bias created by the disclosed information. This poses especially troubling First Amendment implications, as the Supreme Court has looked unfavorably upon rewarding or disfavoring an opinion based solely on its source.
Not only would disclosure distract from the core speech at issue, it may also send a symbolic message that the substantive speech at issue is irrelevant for democratic purposes—in other words, only the identity of the messenger matters, the quality of the message does not. The countervailing interest in remaining anonymous would thus “provide[ ] a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.”
If this argument is accepted, it is likely to cripple disclosure regimes nationwide, as it presents an a priori hurdle that prodisclosure advocates need to cross before any substantive discussion about its informative benefits can begin.
While no lower court has expressly endorsed such a rationale in limiting disclosure, the Tenth Circuit has suggested in dicta that “[n]ondisclosure could require the debate to actually be about the merits of the proposition on the ballot.”
Some studies have suggested that this presumption may be at least partially correct: In the context of candidate endorsements, voters who admit that they assign great weight to endorsements are less likely to consider arguments against the endorsed candidate.
Other studies regarding political advertising disclaimers have shown a significant difference in response between candidate-sponsored attack ads and those sponsored by independent advocacy groups.
Candidate-sponsored attack ads generally elicited a greater backlash against the candidate doing the attacking than those that were sponsored by outside groups, but that backlash was not necessarily correlated with the disclaimers that were included in the ad.
In sum, not only will disclosure proponents need to demonstrate how voters can comprehend the breadth of data released, but they may also need to clarify how it does not discourage certain forms of democratic participation.
B. Challenges to Disclosure in the Lower Courts and the Resulting Doctrinal Inconsistency
This section surveys lower court decisions in the wake of Citizens United and demonstrates that courts have continued to rely on a “voter-education” framework for disclosure, even in the face of growing theoretical pressure. A lack of clarity over how disclosure educates voters has led to discrepancies between courts over which types of regulation are constitutional and which ones are not. Section II.B.1 surveys the large discrepancies between lower court decisions, while section II.B.2 draws out how different courts have invoked different rationales for the informational interest in different contexts. This lack of clarity has led to courts discussing the various rationales underlying the informational interest as mutually exclusive—an approach that is unable to capture the full informative benefits of disclosure.
1. Lower Court Decisions. — Disclosure opponents currently advance two main arguments: either that disclosure of speakers’ identities subjects them to potential harassment or retaliation,
or that disclosure’s administrative burdens are too onerous and confusing.
Both of these harms discourage would-be speakers from entering the political arena, creating a chilling effect on speech that contravenes core First Amendment principles.
With regard to the first harm, in the wake of Citizens United, courts have required that plaintiffs wishing to enjoin disclosure under a harassment theory must demonstrate that publication of their information will truly subject them to retaliation.
But while such challenges were initially unsuccessful, district courts have begun granting injunctions as plaintiffs meet their burden of proof. In Americans for Prosperity Foundation v. Harris, the district court held that evidence of protesters showing up to disrupt a super PAC’s fundraisers and events was sufficient for an injunction against disclosure of donor identities.
In Thomas More Law Center v. Harris, the court cited only that the plaintiff organization was “an advocate for issues which arouse intense passions by its supporters and its opponents” and that the organization had received critical emails and phone messages as sufficient evidence of harassment.
Although the Ninth Circuit later vacated the injunctions in both cases,
these developments at the district court level are unsurprising given that the legal foundations for such challenges have always been grounded in First Amendment doctrine, and that it was the absence of factual context that had doomed earlier challenges.
Regarding the second harm, courts appear open to enjoining disclosure when plaintiffs demonstrate that compliance with a requirement is too onerous or confusing. The informational value of disclosure takes on greater significance in these cases as courts often balance this benefit of disclosure against its administrative burdens. Yet the uncertainty surrounding the interest has led to a disorganized line of rulings. Courts currently differ on whether disclosure requirements should vary based on: the amount of money spent, whether the election involves ballot initiatives or candidates, and whether heavier “PAC-like” burdens can be imposed on an organization whose major purpose is not political activity.
Decisions from the Ninth and Tenth Circuits have suggested that the informational value of disclosure depends on the level of money that is being spent. Under this view, the informational benefits gained from disclosing low levels of campaign spending may be too negligible to outweigh its administrative costs. In Canyon Ferry Road Baptist Church v. Unsworth, the Ninth Circuit suggested that Montana’s “zero dollar” threshold for disclosure was facially unconstitutional.
In discussing the state’s proffered informational interest, the court held that “[t]he value of this financial information to the voters declines drastically as the value of the expenditure or contribution sinks to a negligible level.”
Although Canyon Ferry was decided before Citizens United, later Ninth Circuit rulings have cited to its reasoning when evaluating if other monetary thresholds were unreasonably low.
In Sampson v. Buescher, the Tenth Circuit also suggested that the informative value of disclosure correlates with the level of spending.
The court refused to impose Colorado’s disclosure requirements on individuals who had spent approximately $2,000 opposing a proposed local ordinance and implied that both the low amount of spending and the ballot initiative context of the election limited the informational interest.
Notably, Sampson implied that spending thresholds triggering disclosure should be different for candidate elections compared to direct democracy ballot initiatives.
A subsequent Tenth Circuit decision, Coalition for Secular Government v. Williams, affirmed this view when it refused to impose disclosure requirements on an issue committee that had spent $3,500 advocating against a proposed amendment to the Colorado Constitution.
Even though Colorado law requires any person who spends more than $200 supporting or opposing a ballot issue to register as an “issue committee” with various disclosure responsibilities,
the Sampson and Williams decisions have essentially raised the necessary spending threshold to over $3,500. Significantly, in another decision, the Tenth Circuit held that the informational benefits derived from a $1,000 spending threshold were sufficient to impose disclosure requirements for candidate elections.
This directly contravenes holdings from other circuits that have suggested requirements should be the same for both ballot and candidate elections.
Other courts have suggested that the level of individual contributions is irrelevant for whether disclosure requirements should be imposed; rather, it is the aggregate amount of money spent that is of informative value.
In National Organization for Marriage v. McKee, the First Circuit upheld a Maine statute that required filing disclosure reports if an advocacy committee received or spent $100 in aggregate.
The court reasoned that the “[t]he issue is . . . not whether voters clamor for information about each ‘Hank Jones’ who gave $100 to support an initiative,” but rather that the “cumulative effect of disclosure ensures that the electorate will have access to information regarding the driving forces backing and opposing each bill.”
The Eleventh Circuit cited to this exact passage of McKee when it refused to enjoin disclosure requirements imposed on individuals who had spent $600 advocating against a proposed Florida constitutional amendment.
The Seventh Circuit has also concurred in this reasoning, holding that “[o]ne of the most useful heuristic cues influencing voter behavior in initiatives and referenda is knowing who favors or opposes a measure,” when rejecting an as-applied challenge to a $100 disclosure threshold.
Another dispute between courts involves whether the type of organization should matter for disclosure purposes. The Eighth
Circuits have held that organizations without the express purpose of political advocacy should not be held to the same requirements as those that do. These requirements generally involve filing several disclosure reports per year as opposed to one or two reports filed immediately before an election.
Under this view, these “PAC-like” ongoing disclosure burdens can only be assessed to organizations that dedicate more than half of their spending to political activity, regardless of the amount spent by the organization. Most other courts have held that these distinctions are irrelevant.
Still, other decisions have suggested that disclosure can take on various forms that do not publicize the reported data immediately to the electorate. For example, the Second Circuit upheld a Vermont statute that required disclosure of campaign spending to candidates and election officials rather than the public.
Without a clearer articulation of how disclosure actually helps advance the flow of information, such discrepancies among courts are likely to continue.
2. Differing Conceptions of the Informational Interest. — The differing circumstances under which courts invoke the informational interest—and the divergent conclusions courts have reached—suggest that it is really an umbrella term that incorporates various other values. Even if campaign finance information is valuable, its value depends on who receives the information and the manner in which it is received.
This section identifies how lower courts have invoked four distinct views of the informational interest. The first three describe various “voter-education” rationales that differ on how disclosure provides valuable information, while the last one discusses a less common view: that disclosure can be used to enhance—rather than dissuade—political discourse. An inability to settle on one specific rationale has led to much of the disorganization described above. Importantly, courts view the rationales as mutually exclusive, often only discussing one view of disclosure while ignoring the others. However, as Part III will demonstrate, a layering of these various approaches and an understanding that they can complement each other may provide a stronger justification for future reform.
First, one prominent view of disclosure is that it acts as an “informational shortcut” that educates voters better than traditional forms of political speech alone.
Information on who is spending on behalf of whom signals to the public the types of organizations with which a candidate or issue is aligned.
Similar to the effect of party affiliation or public endorsements, the associational inferences drawn from disclosure allow voters to take “shortcuts” in confirming their choices.
This rationale is not limited to only candidate elections but also extends to ballot initiatives, referenda, and other forms of direct democracy. For example, if a voter is a union member and knows that the union is donating heavily to support a complicated ballot measure, the voter can use this knowledge to cut through the legalese that often accompanies public debate.
Disclosure’s informative value increases when clear partisan lines on a given issue are difficult to discern,
with disclosure data stepping in to fill the gap.
Courts that justify imposing disclosure requirements for low levels of spending and for direct democracy elections invoke this rationale by presuming that any amount of public support through spending could provide a useful heuristic to the voter.
Ultimately, this represents the broadest version of the informational interest through a “voter-education” perspective, as disclosure’s associational benefits can be utilized in all elections.
Second, courts that have refused to impose disclosure requirements for direct democracy elections or for lower spending levels suggest a view of disclosure as only providing informational benefits in candidate elections. This represents a narrower view of the informational interest geared toward gauging candidate integrity as opposed to associational signaling.
For example, if two candidates both campaign on a platform of greater financial regulation, but only one receives donations from major investment banks, a voter understands that the candidate who did not receive such contributions may be more inclined to keep her word.
Thus, if voters believe a candidate may be more likely to prioritize the interests of an organization that spent $1 million on her behalf than an organization that spent only $100, then it follows that there may be no value in requiring disclosure from organizations that do not spend above a certain amount.
The value of disclosure for ballot measure advocacy decreases even more under this view. While disclosure can still educate voters, the scope of the informational interest becomes more limited, as it is concerned with only one aspect of an election. The Tenth Circuit has espoused this view, holding that it was “not obvious that there is . . . a public interest” in disclosure of donor information in elections when “[n]o human being is being evaluated,”
implying that voters must primarily use campaign finance data as a way to evaluate candidates and not issues. This discrepancy demonstrates that even under the relatively uncontroversial view that voters are the intended audience for disclosure, courts can still view disclosure as serving distinct informational roles.
Third, a less common way in which courts have invoked the informational interest is by suggesting that it can be a gauge for patterns of support for an issue or candidate. Under this view, the timeframe for disclosure extends year-round rather than simply to the weeks preceding an election. As noted earlier, courts disagree over whether “PAC-like” reporting requirements mandating organizations to file multiple disclosure reports a year can be imposed on organizations without the express purpose of electoral advocacy.
The courts holding that such requirements can be imposed, regardless of the organization, embody the idea that voters continue to gather valuable information outside of the campaign season. Disclosure grants voters insight into patterns of political spending, which may be useful for future decisionmaking.
This suggests that voters are concerned not simply with signaling cues as to who supports whom, but that they also desire knowledge about how organizations spend on politics across time. If disclosure were primarily for providing voters with information about speakers immediately before an election, there would be little need for such reports.
Finally, at least one appellate court’s discussion of the informational interest has embodied the view that disclosure may help facilitate political discourse rather than chill it.
In Vermont Right to Life, Inc. v. Sorrell, the Second Circuit upheld a “mass media” reporting requirement that mandated any person who engaged in electioneering through activities such as television or radio commercials, mass mailings, or newspaper ads file a report detailing the source of the communication’s funding with the Vermont Secretary of State.
Notably, the law did not operate under the presumption that the reports were to be made public for voter consideration; rather, it mandated that a copy of the report be sent to the relevant candidate whose “name or likeness was included in the activity.”
Thus, candidates were the intended audience for this disclosure regime rather than voters. Nevertheless, the court held that the law’s “public benefit is in line with the informational interest” because the disclosure regime helped bring so-called “‘whisper campaigns’ into the sunlight and also help[ed] ensure that candidates [were] aware of and [had] an opportunity to take a position on the arguments being made in their name.”
This allowed candidates “to rapidly address election-related speech in the final weeks of a campaign”
and “to more quickly and effectively respond” to any unproven accusation.
Under this view, disclosure increases the quantity and improves the quality of political speech as candidates become better able to respond to negative ads and potential falsehoods directed against them. This suggests a potential broader view of disclosure’s informational benefit by demonstrating another way in which disclosure helps voter decisionmaking beyond simply delivering informational cues associated with financial data. As Part III will demonstrate, this is a view of disclosure that has been underappreciated but may provide useful support for future reform.
C. Problems Arising from the Informational Interest’s Inconsistent Jurisprudence
In addition to the conventional problems associated with an uncertain jurisprudence, courts’ inability to settle on a specific rationale for why disclosure information is valuable presents further adjudicative difficulties. Notably, the way that courts have discussed disclosure suggests that they see the different rationales of the informational interest described above as mutually exclusive rather than complementary. This section describes two major issues with this approach that threaten the viability of future reform.
1. Inability to Adapt to Future Disclosure Reform. — The differing rationales underlying disclosure’s informational interest make it difficult for legislatures to craft—and for states to defend—campaign finance policies that do not slot nicely into any of the specific paradigms described above. For example, many scholars have suggested that future reforms should require dark money groups to disclose their contributors to the public.
Others have suggested increasing the level of corporate disclosure as a way to inform shareholders about corporate interests in politics.
Unfortunately, these suggestions appear largely incompatible with the current doctrine. This is because courts have consistently discussed disclosure’s informative benefits as a binary inquiry that queries simply whether a certain disclosure requirement can accomplish “informational interest X.” If the answer is “yes,” the requirement is constitutional. If the answer is “no,” the requirement is unconstitutional even if other informational benefits exist. As it is primarily framed, disclosure provides a way for voters to learn “who is speaking about a candidate shortly before an election,”
but the revelation that an independent expenditure comes from a “Better America LLC” or a “Judicial Crisis Network” likely adds little informative value regardless of the amount of spending.
Courts have thus become concerned with evaluating only the specific piece of information at issue, rather than whether the revelation adds value to substantive political discourse. Importantly, this approach cannot account for voters’ desire to understand who is attempting to influence public policy through spending. However, the way that the current doctrine is framed leads to a fixation on issues like whether thresholds are too low, or whether the electoral context should affect the requirements imposed.
Suggestions for greater dark money or corporate disclosure do not fit perfectly within any one conception of the informational interest. These policies may not specifically reveal the direct “speaker” of the communication, and it is unclear how they will help voters decide at the ballot box. Thus, because of the narrow inquiry that currently frames the disclosure debate, it is likely that these laws will face immediate scrutiny if they are ever enacted.
Despite this uncertainty, states have continued to forge ahead with more stringent disclosure laws.
One illustrative example is Montana’s recently enacted statute mandating political committees exempt from general disclosure requirements to include a disclaimer with any communication that reads: “This communication is funded by anonymous sources. The voter should determine the veracity of its content.”
If the informational interest were strictly concerned with revealing to voters who was speaking about a candidate before an election, disclaimers such as this would seemingly add no value. Another example is New York’s recent nonprofit disclosure statute, which requires certain charitable organizations—that are prohibited from electioneering spending but can still donate money to dark money 501(c)(4)s—to disclose the identity of donors who gave in excess of $2,500 if that organization also contributed greater than $2,500 to a 501(c)(4).
At first blush, it seems difficult to articulate exactly how such a regulation can educate voters, and opponents of the law have already challenged it on First Amendment grounds.
If disclosure is to become the mainstay of campaign finance regulation, then legislatures must adapt by enacting policies that actually help educate the populace about the actors influencing public policy. However, such policies may be unable to withstand constitutional scrutiny under the current doctrine.
2. Inability to Account for Disclosure’s Role as a Legal Framework. — Courts have also yet to discuss whether the structure of disclosure laws can provide informative value beyond simply campaign finance data.
This leads to a view of disclosure that is both under- and overinclusive of its true informative value as a legal framework. The voter-education rationale of disclosure compartmentalizes decisionmaking along a strict, left–right political spectrum that may not be reflective of disclosure’s complete value. At least one scholar has noted that voluntary disclosure above what is legally mandated may help inform voters of a candidate’s credibility even more than a candidate’s persuasiveness on substantive issues.
This creates a form of meta-information that exists regardless of the actual campaign finance data. Put differently, voters in a minimal disclosure regime where every candidate is encouraged, but not required, to disclose may punish dark money more than a heavily regulated regime where voters do not pay attention to the heaps of information being revealed.
If disclosure is to act as a signaling device to voters, then courts must account for not just the actual information disclosed but also how the structure of disclosure regimes—in terms of the timing of filings, the number of reports filed, and other such factors—affects voters’ views on an issue. This is unlikely under most current conceptions of the informational interest.
Moreover, some scholars have noted that requiring disclosure from certain organizations may inevitably lead to increased contributions to organizations that do not need to disclose.
In other words, the more “burdensome” it is to contribute to an organization, the more likely it is that speakers will turn to dark money groups to stay anonymous, in effect decreasing the flow of information to the public. Yet under the differing rationales of the informational interest currently offered, all seem preoccupied with whether the actual data that are disclosed are of interest to the voter, not the legal regime’s effect on political discourse. Instead of focusing on whether disclosure advances political discourse more generally, the inconsistency plaguing disclosure doctrine sets an incorrect baseline of comparison for determining which types of disclosure regimes are too burdensome. This incompatibility must be resolved if attempts at future reforms are to be successful.
III. Clarifying Disclosure: Toward a More Robust Defense of the Informational Interest
As this Note has demonstrated, the perception that disclosure can actually educate voters is under strain.
Courts have also been unable to settle on how disclosure actually provides valuable information to the public—often fluctuating between differing rationales for when disclosure is constitutional and when it is not.
Effectively, this leaves the informational interest as a broad yet inconsistent justification that is likely unable to support future reforms. This Part outlines ways to clarify the doctrine.
Section III.A discusses how the constitutionality of disclosure can be strengthened if proponents look to informational benefits of disclosure beyond its capacity to educate voters. Specifically, it shows how courts have underappreciated the full breadth of benefits that can flow from disclosure by viewing its various informative roles as mutually exclusive rather than complementary. Placing a greater emphasis on disclosure’s ability to elevate political discourse can alleviate many of these tensions. Section III.B then discusses the implications of this approach and provides steps for future reform.
A. Disclosure’s Ability to Elevate Discourse: A Complementary Approach for Future Reform
The instances in which courts have been dismissive of disclosure have overwhelmingly been cases when courts discussed—and then rejected—only one of disclosure’s informative benefits while ignoring the rest. For example, when the Tenth Circuit held in Sampson that disclosure’s informative value was negligible for ballot elections, it implied that the only way disclosure could be beneficial was as a predictor of candidate interests.
Similarly, when the Ninth Circuit declared Montana’s “zero dollar” threshold unconstitutional, it failed to account for disclosure’s ability to act as an “informational shortcut” for associational inferences and its ability to elevate political discourse.
It is this uncertainty surrounding which rationale a court may choose to discuss that makes disclosure difficult to defend.
Proponents wishing to defend disclosure ought to thus advocate for an approach that demonstrates how each of the informational rationales underlying disclosure can complement and strengthen each other.
One way to do this is by placing a greater emphasis on disclosure’s ability to elevate political discourse.
Demonstrating that disclosure can increase the level of speech in addition to its ability to educate voters provides a more robust conception of the informational interest that can withstand many of the critiques leveled against it. This view builds upon the Second Circuit’s suggestion in Vermont Right to Life v. Sorrell that disclosure can result in more speech by “encourag[ing] candidate response” to attack ads and providing “an opportunity to take a position on the arguments being made in their name.”
By alerting candidates to the financial backers against them, the court hinted at the possibility that both the quantity—and more importantly—the quality of political discourse could be heightened.
Put differently, disclosure’s informative value does not end with the voter but can extend beyond elections to serve democratic interests more generally. For example, if a citizen who is originally indifferent between two candidates in an election observes that a disfavored organization contributed to one of the candidates, she may feel compelled to speak out against that candidate. Disclosure has thus increased speech.
If the same citizen saw that the disfavored organization received donations from certain companies, she may feel compelled to advocate against those companies and urge them to cease such contributions. Disclosure has again facilitated greater political discourse, this time outside the scope of elections.
Voters—and the public at large—are thus given access to not only the information of the disclosure itself but also to any additional information that is generated from the subsequent debate. Perhaps most importantly, this view makes disclosure less susceptible to the critiques described above,
as it highlights avenues for disclosure to inform the public beyond voter education. It is this side of disclosure that many courts currently underappreciate.
Such uses of disclosure have arguably already occurred under current laws. In one well-publicized example, progressive activists used disclosure information to highlight Chick-fil-A’s financial support for groups advocating against same-sex marriage after the company’s chief operating officer made statements that many perceived as homophobic.
Advocacy groups then used disclosure information to ensure that the company followed through with a promise to limit its political advocacy.
An increase in this type of speech may also be more in line with the “proper way” of reacting to disclosure information envisioned by the Citizens United Court.
Disclosure thus becomes a mechanism through which citizens can put pressure on both public officials and private actors wishing to influence policy.
As one commentator has noted: “Even if campaign finance disclosure has a limited direct effect on voters’ decisions, it can still play an important salutary role in informing the public generally about the powerful economic forces that shape our elections, our politics, and ultimately, our public policy.”
This perspective can facilitate a wider political discussion that extends beyond elections and extends disclosure’s informative benefits beyond voter decisionmaking, adding a new dimension to the disclosure debate that has so far been overlooked.
B. Implications for Future Reform
An important aspect of an increased reliance on disclosure’s ability to generate speech is that the view does not depend on the ability of voters to actually utilize disclosure data specifically when casting a ballot. Instead, this analysis extends the benefits of disclosure beyond elections, potentially strengthening the constitutionality of future legislative reforms. This section discusses the implications of placing a greater emphasis on disclosure’s ability to elevate discourse. Section III.B.1 discusses how two oft-suggested reforms may be more viable under the more expansive view of disclosure, while section III.B.2 examines the continued efficacy of disclosure’s more traditional “voter-education” rationales.
1. Implications for Future Legislative Reforms. — Two common proposals include increased disclosure of contributors to dark money groups
and increased corporate disclosure.
As discussed, these proposals do not fit nicely within the voter-education paradigms of the informational interest.
However, they are likely to see greater success if proponents emphasize each proposal’s ability to elevate political discourse.
Regarding disclosure of dark money groups, individuals who may disregard the knowledge that a “Better America LLC” is behind an expenditure may be more inclined to discuss a measure if they know the true source of funding. This may facilitate greater discourse around which private actors are attempting to influence policy. Under this view, “disclosure empowers the electorate to monitor the conduct of elected officials to discern whether their behavior while in office reflects the interests of their donors, rather than the interests of their constituents.”
It educates the public about the influence of money on policymaking and provides a civics lesson by showing “a window onto the interplay of campaign finance, lobbying, legislating, and political action.”
Dissemination of such information by journalists, watchdog groups, or similar entities suffices to create greater political discussion, allowing voters to react accordingly to such reports.
Increased corporate disclosure can also increase speech by providing a mechanism for shareholders to hold executives accountable for political spending.
Shareholders “may have a strong interest in not being associated with political speech they oppose,” and those who dislike their company’s stance can place pressure on executives to cease such activity.
The Citizens United majority hinted at such a possibility when it suggested that “disclosure . . . can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable,” and that “disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.”
Shareholder participation in political discourse is already occurring under voluntary disclosure regimes. For example, Intel, which voluntarily discloses some of its political spending, faced pressure from shareholders who questioned its contributions to politicians that had opposed LGBT rights or had denied climate change.
Such instances can be expected to increase if corporate disclosure becomes mandatory.
2. Continued Viability of Disclosure’s Voter-Education Rationales. — While placing a greater emphasis on disclosure’s ability to elevate discourse means less reliance on its ability to educate voters,
it does not render such voter-education rationales completely ineffectual. Instead of a “one-size-fits-all” approach in which courts focus on whether a disclosure requirement accomplishes informational interest X (such as predicting candidate interests), proponents must underscore that disclosure can accomplish multiple educational roles—especially in contexts when information is inherently limited. Specifically, disclosure’s ability to inform the public likely remains most salient in local elections and direct democracy.
Candidates in local elections are often political newcomers, and thus voters may know very little about their positions or policy preferences. For direct democracy elections—which are often local—the absence of party identification and other heuristic identifiers makes it unlikely for voters to grasp the nuance of certain issues without additional informational cues.
In both contexts, campaign-spending data help to fill the gap by revealing the entities attempting to influence the election. For example, California’s attempt to pass the Mobile Home Fairness and Rental Assistance Act in the 1990s was publicized as an attempt to achieve “fairness” and “rental assistance” for mobile home tenants.
However, disclosures revealed that the principal financial backers behind the initiative were two mobile home landlords who had wanted to end local efforts at rent control. The measure was subsequently defeated.
Notably, concerns about voter competency are less applicable in these contexts as campaign finance data compete with a smaller pool of information for voters’ attention. This helps overcome the concerns regarding an “information overload” that can overwhelm disclosure’s more traditional defenses.
Under this view, disclosure’s constitutionality no longer hinges on whether a court accepts one specific rationale underlying the informational interest, but instead expands to a bevy of potential benefits whose importance shifts depending on the circumstance.
In the wake of Citizens United, mandatory disclosure has become the preferred method of campaign finance regulation. However, its main constitutional support—the informational interest—remains unclear and unexplained by the Court. In fact, the informational interest has become an umbrella term that incorporates a diverse set of views on the informative role for disclosure. Lower courts have struggled to apply a consistent jurisprudence because it is unclear how disclosure actually brings about the informational benefit to voters that most courts seem to presume. This cramped yet inconsistent view of disclosure is unwieldy and unlikely to sustain more innovative campaign finance regulations in the future. Instead, disclosure proponents need to demonstrate how the informational benefits of disclosure do not end simply at the ballot box. Specifically, a broader appeal to disclosure’s ability to elevate political discourse more generally can be useful in sustaining future reform. Regardless of the approach taken, it is apparent that further clarification of campaign finance disclosure’s informational benefits is needed to sustain such policies in the future.