soapbox

  Disclosure kills, and disclosure chills. The Van Hollen case provides an exercise in quasi-experimentation.

Van Hollen is, more or less, an independent variable. Without disclosure, this form of ad was commonplace. With disclosure, these ads are nearly extinct, assuming the BNA article is correct. Voters operate in a world of rational ignorance. They are more likely to know who won the Stanley Cup than who is the chief justice of the supreme court. These ads, biased and imperfect as they are, provided scarce information to voters. Some voters are motivated to follow the implied message of the ads, while others do the opposite.

Some political speakers, which at times have included the NAACP, the Socialist, Socialist Workers and Libertarian Parties, and the National Organization "for" Marriage, have argued that disclosure kills and chills, and they should be exempt, either as applied to them, or that disclosure regimes generally should be found unconstitutional. This approach has met a mixed reception in the courts. See Doe v Reed, Buckley v Valeo, McConnell v FEC, Citizens United. 

Others are pro-disclosure. Some think that whatever chilling effects there might be are minimal, and are outweighed by the benefits of disclosure. Other see the censorship and self-censorship of political speech as a good thing, because the rich or eloquent or correct might distort the equality principle of one person one vote. 

The Van Hollen decision is an event which gives political scientists something to measure. One goal of BCRA, aka McCain-Feingold, was to squelch electioneering communications. Its ability to do this directly has been limited by court decisions such as WRTL, MN GOP v White, Davis, and, infamously, Citizens United. But what can't be directly prohibited can be chilled by disclosure regimes of varying complexity and severity.

Speech, like water, is fluid. Perhaps the speech that was flowing prior to Van Hollen will simply take a different route, in ways that can be traced and measured. Perhaps it won't.

I am a political philosopher, not a political scientist,and I'll leave the data collection to others. My point in this blog post is to suggest that there is an opportunity for scholarship here, both in terms of papers for those who must publish or perish, and  for those who serve as expert witnesses and counsel, in the next rounds of litigation.

“District Court Ruling on Funding Disclosure Halts ‘Electioneering Communication’ Filings”