Disclosure's Last Stand? The Need to Clarify the 'Informational Interest' Advanced by Campaign Finance Disclosure

Abstract

Disclosure enjoys a unique position within the spectrum of campaign finance regulation. It is the only regulation that courts have looked upon with consistent approval. Since Buckley v. Valeo, courts have upheld disclosure requirements as advancing an “informational interest”—very broadly defined as the interest in educating voters about the sponsors behind political messages. Disclosure’s informational interest has been deemed sufficient to outweigh its incidental burdens on speech, something that interests advanced by other forms of campaign finance regulation have failed to do. Yet despite the goodwill, after Citizens United, disclosure seems to be on the defensive as advocates against campaign finance regulation turn their attention to disclosure.

This Note argues that since Citizens United, courts have differed in their application of disclosure’s informational interest and that the phrase has been used to embody several different strands of disclosure’s informative benefits. This inconsistency, compounded with growing theoretical pressures arguing that disclosure’s ability to educate the public is greatly overstated, puts disclosure on shaky First Amendment footing. If left unresolved, this uncertainty presents problems for states seeking to craft campaign-related disclosure statutes. In response, this Note proposes that placing a greater emphasis on disclosure’s ability to elevate discourse—both in terms of the volume of speech that is generated and the depth of the discussion that is produced—can provide a more robust justification for future reform.