"A Semi-Objection to Bruce Cain's Semi-Case for Semi-Disclosure"

Here is my response to Bruce Cain's essay for Cato Unbound. My response begins:

Bruce Cain has picked an odd time to raise concerns about the dangers of disclosure. It comes as we have just completed a record-breaking $4 billion midterm election season, after the Supreme Court, lower courts, and the Federal Election Commission have freed corporate and union money from longstanding campaign finance limits, and after political committees and other political groups have found ways to avoid effective disclosure of their contributors. The conversation should be about why we need more disclosure, not less, and why it is that Congress is unlikely to restore effective disclosure laws in time for the 2012 elections.

Cain's concern is different: he worries that excessive disclosure, especially in the Internet era, will chill political speech, and that attempts to reimpose effective disclosure laws are motivated by an improper desire to equalize the amount of political speech. He calls for a system of "semi-disclosure," whereby certain campaign finance data is disclosed to campaign finance regulators but not to the general public. In this brief response, I make three points. First, in offering his analysis, Cain understates the value of disclosure. Second, Cain is surely right that the Internet era does change the constitutional calculus, which is why scholars supporting campaign finance regulation, including Richard Briffault and me, also support the kind of system Cain suggests. Third, the most significant roadblock to Cain's suggested reform, as shown by John Samples's response in this symposium, is the fear by conservatives of government audits as a substitute enforcement mechanism.

Through the rest of the month, Cain, John Samples, Nikki Willoghby, and I will be debating the disclosure issue in follow-up blog posts at Cato Unbound.

"Who Really Won the 1960 Election?"

David Stebenne explores at HNN.

"Too Much of a Good Thing: Campaign Speech after Citizens United"

Molly Walker Wilson has posted this draft on SSRN (forthcoming Cardozo Law Review). Here is the abstract:

In January 2010, the Supreme Court in Citizens United v. Federal Election Commission overturned Austin v. Michigan Chamber of Commerce and the portion of McConnell v. Federal Election Commission that restricted independent corporate expenditures, as codified in section 203 of the Bipartisan Campaign Reform Act. Specifically, Citizens United invalidated laws forbidding corporations and unions from using general treasury funds for "electioneering communication," political advocacy transmitted by broadcast, cable, or satellite communication in the period leading up to a federal election. The effect of Citizens United was to protect the right of corporations, no less than individual American citizens, to fund and distribute political advocacy. The Citizens United holding is controversial for many reasons, not the least of which is that it takes a hard-line approach that unapologetically privileges speech, even while tacitly acknowledging the potential for negative effects. This Article challenges the Citizens United decision on several grounds. First, I dispute the majority's claim that corporate spending does not result in "corruption." Second, I assert that the potential for corruption poses a real and serious threat to democratic elections and that preventing this corruption is therefore a vital governmental interest justifying restraints on "speech." Finally, I adopt the majority's free speech priority and propose that even if the First Amendment is the only legitimate consideration, corporate spending is harmful because it chills speech in a manner not contemplated by the Court.

"Boehner's plan to 'open things up' in the new House affects lobbying strategies"

The Washington Post offers this report.

E.J. Dionne on DISCLOSE in the Lame Duck

Here.

A Member of Congress Who Represents Himself...

sometimes walks out of his ethics hearing.

The Revolving Door Goes Round and Round

Roll Call offers GOP Lobbyists Field Offers to Return to Hill.

"Florida judges may be on political hot seat"

The Palm Beach Post reports.

"Murkowski retains election write-in lead"

The latest from Alaska.

"As Vote Counting Goes On and On, Questions and Legal Bills Add Up"

The latest from New York.

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org