Michael S. Kang, Campaign Disclosure in Direct Democracy, 97 Minn. L. Rev. 1700 (2013).
Abstract: Not long ago, Justice Sandra Day O’Connor declared disclosure the “‘cornerstone’ to effective campaign finance reform,” but campaign disclosure laws now are under legal and political attack as never before. In several prominent cases, plaintiffs challenged campaign disclosure laws in direct democracy, alleging a likelihood of harassment as a result of compelled disclosure in today’s Internet age. Although the legal challenges so far have been unsuccessful, the Supreme Court has invited further challenges along the same lines on an as-applied basis. What is more, legal scholars who once universally agreed on disclosure’s value now call increasingly for scaling back compelled campaign disclosure. Campaign disclosure thus has emerged as a new front in election law, with direct democracy as the main battleground.
The new attacks on disclosure are explained by recent political and technological developments in campaign finance. On the political side, the sudden transformation of campaign finance law after Citizens United re-set the stakes for campaign finance reform by stripping away so much of longstanding campaign finance regulation, leaving disclosure laws as one of the most prominent regulatory elements still in place. Opponents of regulation once in favor of “deregulate and disclose” no longer feel compelled to settle for disclosure now that the “de-regulate” component of their former approach has already taken place. On the technological side, the Internet dramatically decreased the costs of acquiring disclosed information, which is now at the touch of a finger away from anyone with web access. The lower cost of information has made it simpler to pursue political opponents identified by their disclosed activity, particularly within the contentious single-issue politics of direct democracy.
In this Article, I argue that recalibration of campaign disclosure laws in direct democracy may well be advisable in light of these developments but are best addressed legislatively, not judicially. Legislatures are better positioned than courts to calibrate the extraction of useful information of voters against competing interests in privacy and potential harassment based on that compelled disclosure. Disclosure laws serve as an important source of voter information about the political merits of ballot measures by revealing their most intense and well-known supporters and opponents. In direct democracy, such in-formation is particularly helpful to voters in figuring out how to vote because the familiar voting cues upon which they rely in candidate elections, such as party identification and an incumbent’s past performance, are not as salient or simply unavailable.
What is more, broader privacy worries about campaign disclosure are, even in the Internet age, fairly limited as best we can tell so far. The low-grade chilling and harassment alleged in recent challenges to campaign disclosure laws in direct democracy are the type of generalized worry that any citizen is susceptible to suffer and amenable to redress through the political process. With the changing dynamics of campaign disclosure in the Internet age, courts should let legislatures do their jobs in adapting the law appropriately to a problem that they have proper incentives to monitor.
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