Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age

Abstract

Everywhere you look, campaign finance disclosure laws are under attack. Disclosure has been opposed by the National Organization for Marriage, Senate and House Republicans (including Senator McConnell, who used to call for no limits and full disclosure), Republican members of the Federal Election Commission, and the U.S. Chamber of Commerce. But attacks on disclosure have come not only from the right. Members of the academy, including Bill McGeveran, Richard Briffault, Lloyd Mayer, and Bruce Cain. have criticized disclosure laws. In this short Essay, I offer a qualified defense of government-mandated disclosure, one which recognizes the concerns of these prominent academics but also sees much of the anti-disclosure rhetoric of the Chamber and others as overblown and unsupported - offered disingenuously with the intention to create a fully deregulated campaign finance system in which large amounts of secret money flow in an attempt to curry favor with politicians but avoid public scrutiny. To the contrary, disclosure laws remain one of the few remaining constitutional levers to further the public interest through campaign finance law.Even in the Internet age, in which the costs of obtaining campaign finance data about small-scale contributions by individual donors often have fallen to near zero, there is virtually no record of harassment of donors outside the context of the most hot button social issue of gay marriage - and even there, much of the evidence is weak. In the face of evidence of a real threat of serious harassment, courts should freely grant exemptions from campaign finance laws. Even absent proof of harassment, Congress and state legislatures should modify their disclosure laws to protect the informational privacy of those individuals who use modest means to express symbolic support for candidates or ballot measures. But major players in the electoral process generally should not be able to shield their identities under a pretextual appeal to the prevention of “harassment” because of the important government interests in preventing corruption and providing valuable information to voters which are furthered by mandated disclosure. It is no surprise that the Internet has been primarily responsible for the loss of informational privacy in the campaign finance disclosure context. Perhaps more surprisingly, the Internet is at least indirectly responsible for strengthening the two primary government interests supporting mandatory disclosure. The rise of the Internet was a prime force in the unraveling of the older campaign finance regime, and the subsequent emergence of new campaign finance organizations such as “Super PACs” which raise the danger of the corruption of elected officials dramatically. Disclosure laws may not be the best tool to police the potential for corruption from these new or supercharged campaign finance vehicles. Nonetheless, disclosure laws are much better than nothing in ferreting out when an elected official might act to benefit her supporters rather than act in the public interest.As for the information interest, campaign finance data, especially when included on the face of campaign advertising, provides an important heuristic cue helping busy voters decide how to vote. Such data assist voters who face Internet-driven information overload and a variety of potentially misleading campaign ads seeking to mask the identity of those behind campaigns and campaign advertising.