The Informational Interest
UVA Law Faculty Affiliations
This essay, to be published in the Journal of Law and Politics, describes how the debate over disclosure in campaign finance has changed and how the Supreme Court has limited the rationales that can justify it. Although in Buckley v. Valeo the Supreme Court identified three separate constitutional interests that disclosure served — an anticorruption interest, an enforcement interest, and an informational interest — in Citizens United v. FEC it effectively threw out the first two. Now the constitutionality of campaign finance disclosure requirements rests almost solely on the informational interest. The essay then shows how Citizens United creates an unstable paradox. The assumptions it makes in the central part of the decision in striking down source and amount regulation of so-called independent expenditures undercut the ones in makes in upholding disclosure under the informational interest. In the former case, it assumes voters are quite savvy and actively engaged in politics; in the latter, it assumes the opposite. The essay concludes with some thoughts about what this conflict may portend.