Disclosure can encourage political speech

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[Commentary] 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 Federal Election Commission’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. 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. 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. ]


Disclosure can encourage political speech