You will recall that I’ve posted in the past about “junk disclosure” – that is, legal requirements to disclose information (either in reports or in the form of disclaimers on communications) that do not give the public useful information. A recent article in the University of Pennsylvania Law Review provocatively suggests that disclosure mandates overall fail to provide the targeted beneficiaries with useful information, and whatever benefits do accrue are swamped by costs in money and time, as well as bad unintended consequences.

In this article, titled “The Failure of Mandated Disclosure” professors Omri Ben-Shahar and Carl E. Schneider look at a wide variety of disclosure mandates.  Disclosure requirements are pervasive – they appear in areas of finance, insurance, telecommunications, sales of goods and services, leases, contracts, criminal procedure, education, transportation – and campaign finance of course. Yet, “[t]he great paradox of the Disclosure Empire is that even as it grows, so also grows the evidence that mandated disclosure repeatedly fails to accomplish its ends.”  Take nutrition labeling – an area where the informal view is pretty positive.  This article discusses the empirical evidence that consumers , if they read the labels at all, can’t understand them, have other sources of information that are more useful, and in any case do not improve their eating habits.

One reason it is hard to educate the public about campaign finance is that so many people work so hard to miseducate the public about campaign finance. Today the New York Times reports that “the billionaire Koch brothers … Charles and David Koch contributed handsomely – $80,000 worth – to (freshman congressman Mike) Pompeo’s campaign kitty.” A revealing statistic which is, unfortunately, simply not true.

You have to get a kick out of this headline at Americans for Campaign Reform, “Bipartisan Former Senators Urge Court to Uphold 1st Amendment Constitutionality.”  We do hope that the Supreme Court will uphold ”1st Amendment Constitutionality.” In fact, as part of the Constitution, we’d like to think that it is obvious that the Court would uphold “1st Amendment Constitutionality.” Unfortunately, for years the First Amendment has been under attack in the name of “campaign finance reform.” A good start toward upholding “1st Amendment Constitutionality” would be to adopt the principle of separation of campaign and state, under which what people say about politics and political figures is really none of the state’s business.

Writing today in Roll Call, Norm Ornstein, the man who, per some accounts, largely drafted the McCain-Feingold bill behind closed doors, rips into Federal Election Commissioner Don McGahn. McGahn’s offense: at a recent speech at the University of Virginia School of Law, McGahn confessed that, when the Federal Election Campaign Act and the Constitution, as interpreted by the Supreme Court, are in conflict, he sides with the latter.

As everybody who follows campaign finance litigation knows, the U.S. Supreme Court today heard arguments in the consolidated cases Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett and McComish v. Bennett, a challenge to the provision of Arizona’s “clean elections” that grants additional funding to participating candidates when they face being outspent by an opponent, or an independent expenditure thatr aids their nonparticipating opponent.

There will be more reaction in the coming hours and days, but at first impression it appears that at least a majority of the Supreme Court views Arizona’s program with skepticism. From an AP report:

Court skeptical of Ariz. campaign finance law

WASHINGTON (AP) — The Supreme Court appeared poised Monday to strike down a provision of a campaign financing system in Arizona that gives extra cash to publicly funded candidates who face privately funded rivals and independent groups.

Such a decision would be another blow to public campaign financing, once thought of as an antidote to the corrupting influence of money in politics. President Barack Obama has been the most prominent example of politicians who have abandoned public financing because they can raise far more money privately.

The justices heard arguments in a challenge to the Arizona system that gives candidates who opt for public financing up to two times their base amount when they’re outspent by privately funded rivals or targeted by independent group spending.

The court’s conservative-leaning justices, who have issued a string of decisions upending campaign finance laws in the past five years, appeared skeptical of the Arizona law because it, in their view, is designed to level the playing field for all candidates. The court has said such leveling often runs afoul of the First Amendment.

A full transcript of the hearing is available here: transcript of McComish v. Bennett

 

 

During today’s oral argument in McComish v. Bennett, involving a challenge to a state law having nothing to do with the federal law known as McCain-McCain, Justice Breyer stated, ““What’s going through my mind is we are deeply into the details of a very complex bill. McCain-Feingold is hundreds of pages, and we cannot possibly test each provision which is related to the others on such a test of whether it equalizes or incentivizes or some other thing, because the answer is normally we don’t know.”

Does the Justice understand what McCain-Feingold did and did not do?  McCain-Feingold, a federal law also known as the Bipartisan Campaign Reform Act of 2002, had nothing to do with government financing of campaigns.  McComish v. Bennett is a challenge to an Arizona law that provides government financing for the campaigns of some candidates.