In Citizens United v. FEC, the Supreme Court swept away long-standing
limits on corporate spending in federal elections, but it also strongly affirmed
the constitutionality of robust disclosure and disclaimer requirements. In the
wake of that decision, many proponents of campaign finance regulation have
turned their attention to disclosure as the best remaining mechanism by which
to regulate money in elections. At the same time, opponents of campaign finance
regulation—including the legal team behind Citizens United—have trained
their sights on disclosure, filing new challenges to existing disclosure requirements
in a number of state or federal courts, although so far with only limited
success.
Relying on the Longitudinal Elite Contributor Database (LECD)—an original
database developed by one of the authors to track the population of unique
individual campaign contributors from 1980 through 2008—this Article tests
the Supreme Court’s rhetoric about disclosure, and some of the premises of our
current policy debates about money in politics, against the realities of the FEC’s
existing disclosure regime. In particular, we find that compliance with existing
disclosure regulations is inconsistent and that the current regime fails to
identify the most potentially influential players in the campaign finance system.
In so doing, the current system fails to provide basic facts about how candidates
(and committees) finance their campaigns. We suggest that much of what the
Court and reformers assume about disclosure is wrong—that their views are
premised on an effective and well-functioning disclosure regime that in fact
bears scant resemblance to the system of disclosure maintained by the FEC.
Correcting these misunderstandings will be critical to crafting better reform
proposals. And the stakes could not be higher: disclosure may well be the only
constitutionally viable and politically feasible method of regulating money in
elections in a post-Citizens United world.