Michael Gilbert has posted this draft on SSRN (forthcoming, Iowa Law Review). Here is the abstract:
Campaign finance law is in shambles, and American politics, by many accounts, is dominated by wealthy, shadowy interests. Reformers have rested their hopes on disclosure – mandated, public disclosure of what individuals, corporations, super PACs, and others spend on politics. Reformers argue, and the Supreme Court agrees, that disclosure provides valuable information to voters. Opponents, on the other hand, vilify disclosure for chilling speech and infringing speakers’ First Amendment rights. Both positions – disclosure informs voters, disclosure chills speech – have become conventional wisdom.
This paper challenges that wisdom. First, it shows that disclosure does not necessarily inform voters. Rather, it raises an information tradeoff. Revealing sources of speech provides voters with information, but disclosure can also chill speech, and that takes information away – the information contained in the chilled speech. When the second effect outweighs the first, disclosure actually reduces voter information. Second, the paper argues that disclosure does not necessarily chill speech. It can thaw it. By providing potential speakers with information about the positions and credibility of candidates, disclosure can prompt actors to speak when they otherwise would not. When disclosure thaws speech, there is no information tradeoff. Voters gain information in two ways – source revelation, more speech acts – and lose it in none. When disclosure thaws speech, it promotes exactly those First Amendment values it is thought to undermine.