Jennifer Heerwig and Kate Shaw have posted this draft on SSRN (forthcoming, Georgetown Law Journal). Here is the abstract:
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 essay 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.
I look forward to reading this!