Veiled Political Actors and Campaign Disclosure Laws in Direct Democracy

Abstract

295 DISCLOSURE STATUTES are ubiquitous in the regulatory landscape of political campaigns. Disclosure is the primary kind of campaign finance regulation affecting initiative and referendum elections, and it may be the only regulation that is constitutionally permissible in this context. Disclosure elicits fairly widespread support; those who oppose contribution or expenditure limits are often willing to support disclosure statutes.1 Those who support more extensive campaign finance regulation usually favor disclosure as a necessary component that serves the traditional objective in candidate elections of combating corruption and also provides necessary information to voters in both candidate and issue elections. The willingness of the majority and most dissenting justices to uphold the disclosure provisions in the Bipartisan Campaign Reform Act (BCRA) suggests that disclosure statutes are likely to continue to withstand constitutional scrutiny in the wake of McConnell v. Federal Election Commission.2 Notwithstanding this broad support, disclosure statutes have not received much scholarly attention, particularly in the legal academy. This lack of attention is unfortunate because the design of disclosure laws is crucial in several ways. First, the constitutional test applied to campaign finance laws, including disclosure, requires that statutes be substantially related to important state interests. Thus, if disclosure is justified because it provides useful information to citizens, the information elicited should be the most helpful to voters. In addition, targeting is important for the effectiveness of disclosure laws. Voters have limited time and attention, so they should be provided the information most crucial to improving their ability to vote consistently with their preferences. Finally, entities adopt strategies to circumvent campaign finance restrictions, so statutes must be drafted to reduce opportunities for evasion. Although subterfuge may be even more common when the law also imposes limitations on contributions and expenditures, experience on the state level in issue campaigns, where regulation is almost entirely through disclosure, sug-