Buckley v. Valeo, Political Disclosure and the First Amendment

Put differently, the reality is that disclosure’s constitutional status is unclear. The Supreme Court’s jurisprudential framework is often unpredictable. Even when the Court has been consistent in choosing a formal framework with which to approach disclosure laws, it has been inconsistent and unpredictable in applying that framework. To be sure, this issue takes on particular urgency in light of the importance both sides in the campaign finance debate attach to disclosure of campaign spending (however differently defined), and the existence of the Internet as a vehicle for immediate mass dissemination of information required to be reported.

Accordingly, providing an overview of the Supreme Court’s disclosure jurisprudence under the First Amendment (as it has been applied in several contexts: candidate elections; candidate-specific issue advocacy; ballot initiative or referenda campaigns; and broadcast political advertising), this article then examines disclosure requirements applicable to lobbyists, foreign agents, government officials, and parties or witnesses in litigation or legislative investigations. It concludes by examining what common strains emerge from these disparate cases, and thus what new approaches are most likely to withstand constitutional review.