How Far Should Disclosure Requirements Go?

I’ll be appearing tongight on Wisconsin Public Television’s Here and Now, discussing the Government Accountability Board’s new rule requiring groups and persons who spend more that $ 25 on something called “political communications” during a set period preceding an election to register, make certain filings and disclose the source of their funds. Joining me will be Mike McCabe of the Wisconsin Democracy Campaign.

My initial take on the rule is here.  Apart from a statutory issue, there a few broad constitutional problems. The first is that, although the United States Supreme Court has upheld disclosure requirements in the case of what the Court calls express advocacy, the GAB rule applies more broadly to what the Court has held to be “issue advocacy” which criticizes or supports a candidate’s record or stance on the issues. It is not clear that the interest in disclosure is the same.

The second is the scope of the rule and the way in that may affect the state’s interest in requiring registration and disclosure. It is not limited to broadcast advertising but applies to a variety of grass roots advertising, i.e., pamphleting, blogging, etc.

One issue that is not yet presented is the potential for “as applied” challenges where disclosure will subject donors to retaliation.

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