Noveck on “Campaign Finance Disclosure and the Legislative Process”

Scott Noveck has posted this draft on SSRN (forthcoming, Harvard Journal on Legislation). Here is the abstract:

    This Article analyzes an underappreciated and oft-overlooked method of campaign finance regulation, the use of reporting and disclosure requirements. The Article demonstrates that both sides of the campaign finance debate have failed to recognize the full range of possible disclosure schemes, and it argues that a particular set of disclosure requirements can have a much more dramatic effect on the legislative process than has previously been recognized. Moreover, I show that a carefully crafted disclosure scheme can offer an effective solution to the problem of quid pro quo corruption (i.e., political bribery) and can overcome the serious constitutional concerns about retaliation that have been raised both by the Supreme Court and by several scholars.
    My argument proceeds in four parts. Part I examines the two main policy justifications offered in support of campaign finance reform — egalitarian concerns about the distortionary effects of money on politics, and bribery-like concerns about quid pro quo corruption — and shows that these two competing rationales have drastically different implications for the permissible scope of campaign finance regulation.
    Part II then briefly reviews the Supreme Court’s campaign finance jurisprudence and shows how the Court’s notion of corruption as a compelling government interest has shifted between these two different rationales. The result is a doctrine that leaves considerable uncertainty as to how far reformers may go to advance egalitarian ends through direct restrictions on campaign funds. The Court’s decisions appear more receptive to the use of reporting and disclosure requirements as an alternative, but the constitutionality of disclosure schemes that identify individual campaign contributors rests on extremely fragile foundations that have recently begun to unravel.
    The final two Parts narrow in on the issue of disclosure. Part III identifies two model approaches, the full disclosure model and the information-suppressing model, but argues that neither proves entirely satisfactory. Part IV argues for the virtues of a more nuanced, selective approach to the disclosure problem. After first showing how the reporting of aggregate rather than individual-level disclosure data can both solve the problem of quid pro quo corruption and overcome the First Amendment concerns that threaten current disclosure schemes, it then demonstrates how the proper set of reporting and disclosure requirements should be determined by our view of the legislative process and what we mean when we talk of political corruption.

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