Anthony Johnstone has posted this draft online (forthcoming, Iowa Law Review Bulletin). It responds to Michael Gilbert, Campaign Finance Disclosure and the Information Tradeoff (Iowa Law Review). Here is the abstract:
This essay considers the information tradeoff model as the core element in a dynamic system of campaign finance disclosure. First, it recognizes several useful contributions built into the model’s framework of informational costs and benefits. In the simplest analysis, disclosure increases the information available to voters by adding source revelation to campaign speech. Conventional First Amendment doctrine recognizes, however, that the reality is more complicated. Disclosure can have a chilling effect that decreases the amount of campaign speech by imposing administrative and exposure burdens on speakers. As Professor Gilbert shows, this cannot end the analysis. What matters is not just the magnitude of the chilling effect on campaign speech, but the net “information tradeoff” between the decrease in campaign speech and the increase in source revelation, both of which are informative to voters. Moreover, disclosure can “thaw” speech because source revelation sometimes increases the expected value of speech to a speaker, thereby encouraging some speech that would not otherwise occur.
Next, this essay builds upon the information tradeoff in several directions, drawing on other analysts’ perspectives of campaign finance as a complex system of dynamic interactions. It refines the cost-benefit function at the core of the information tradeoff, extends the information tradeoff analysis across disclosure rules to hydraulic effects at the regime level, and rises above the various disclosure regimes to consider the information tradeoff at the system level. A more complete analysis of the informational consequences of campaign finance disclosure requires a systematic account of the interactions between campaign speech and source revelation, and their net benefits and costs to speakers and voters. The essay concludes by suggesting that, given the difficulty of determining the information tradeoff at the rule, regime, and system levels, analysts, policymakers, and courts should recognize the value of second-best solutions to campaign finance disclosure problems.