Citizens United recently sued the state of Colorado for the right to air a feature-length attack message against Governor John Hickenlooper without having to disclose its donors. (Note: I served as an expert witness in this case.) A federal judge rejected the lawsuit, but this may well be an opening salvo in a new battle over campaign finance regulations. This new arena is disclosure: whether or not individuals and groups speaking publicly about campaigns have an obligation to reveal who is funding them.
Generally, disclosure is seen as the key to transparency in elections. Its presence helps mitigate against conflicts of interest.
Donor disclosure has been, at least until now, one of the less controversial areas in the broader subject of campaign finance regulations. The federal government and every state government all have some sort of campaign finance disclosure rules (although some may be better than others). It’s also the most common form of campaign regulation in democracies around the world. But just what purpose does disclosure serve?
Generally, disclosure is seen as the key to transparency in elections. Its presence helps mitigate against conflicts of interest. If a candidate were running for Congress and financed almost solely by powerful people in the petroleum industry, presumably it’s in the public’s interest to know that. And since people would find that out, it’s largely prevented from happening.
Interestingly, disclosure also protects donors themselves. Without disclosure, candidates could theoretically shake down donors, demanding a certain level of support for the donor’s interests to be considered—all with only the candidate and the donor ever knowing about the arrangement. It would be bribery, but without any evidence, it would never be pursued. That such donations must be reported largely prevents such activity from occurring.
Some political science studies suggest other benefits from disclosure. Conor Dowling and Amber Wichowski, for example, conducted an experiment and found that campaign-attack advertisements were somewhat less effective when voters knew who was funding them. That is, the voters used the disclosed campaign finance information to consider the source of the ad when evaluating the ad’s content. Voters who didn’t see any such information were more likely to just accept the attack at face value.
A study by David Primo and Jeffrey Milyo, meanwhile, found that the presence of campaign finance disclosure law seems to increase voters’ feelings of efficacy: the belief that their voice matters in the political system. And a paper by Ray La Raja found that more stringent disclosure laws are associated with less horse race coverage of campaigns in the media.
Now, disclosure may not be completely without costs. There’s at least some evidence that congressional candidates are reluctant to inform donors about disclosure requirements out of fear that it will discourage people from donating. And Milyo has a study suggesting that some disclosure forms may be needlessly complex and burdensome to donors. Efforts to publicize the names and addresses of donors to, say, Proposition 8 in California are concerning, raising the possibility that disclosure could lead to donors being targeted for criticism or even reprisals (although that largely didn’t happen). It’s thus not impossible that disclosure might be discouraging some people from participating in campaigns. Still, despite the presence of disclosure laws, federal campaign spending has increased by roughly 35 percent per cycle since the 1990s, suggesting that not too many people are being discouraged.
Even if some may be leery of having their name attached to a donation, we might simply think of that as a price to pay for the sake of transparency in a democracy. There is certainly great public value in minimizing conflicts of interest and outright bribes—perhaps that’s worth a bit of red tape.
