Disclosure can encourage political speech
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Earlier this week, both the Clinton and Trump campaigns contacted supporters advising that this is the “last opportunity to see your name on a major FEC report before Election Day.” 

It is obviously a shill: the campaigns want money. But behind the sales pitch lies an idea. Maybe forcing people to disclose their political giving isn’t so bad. Maybe disclosure does exactly the opposite of what its detractors say.

For decades federal law has required disclosure of some forms of political spending. When an inspired debate watcher donates more than $200 to a campaign, her name and contribution get posted on the FEC’s website. To stay private, one must give below the threshold. The email from Hillary’s campaign told supporters exactly what they had to give to pass the threshold and go public.

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There is another way to stay private: “dark money.” Instead of giving to a candidate, one can give to “social welfare” organizations, which support candidates but are prohibited from coordinating with them. These organizations spend millions on politics, and law permits their donors to remain secret.

Is there an argument for secrecy? Courts and lawmakers point to the First Amendment, which protects political speech and association, of which political contributions are a form. The conventional wisdom is that mandated disclosure “chills” political speech. Rather than speaking and disclosing—which can lead to embarrassment and worse—people stay silent. Disclosure muzzles speech.

Nice theory, but our research suggests there’s more to it. One of us has data showing that, on balance, disclosure’s effect on political speech is negligible. The other has tried to explain why.

Disclosure can encourage speech. It provides information on candidates’ positions—are they supported by environmentalists or coal? The answer can energize voters who previously lumped the candidates together, causing them to speak in favor or against. Disclosure can also lend credence to candidates’ stump speeches. You say you support immigration reform, but will you follow through? A record of support from immigration activists convinces voters the answer is yes, so they give money. Finally, disclosure promotes association. Why settle for a yard sign when you can signal your support for a candidate to the entire world?

The campaigns have tapped into that last point. They have asked people to publicly proclaim their alignment with Clinton or Trump and embrace “FEC status.” Rather than stifling speech, the campaigns think disclosure can promote it. We bet they are right and that supporters take the bait. Which all goes to show that conventional wisdom might have it backwards.

Disclosure might “thaw” more speech than it chills.

Wood is Assistant Professor of Law, Political Science and Public Policy at University of Southern California. Gilbert is Sullivan & Cromwell Professor of Law at University of Virginia. 


 

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