In the wake of this week’s elections – which the Center for Responsive Politics estimates featured $5.8 billion in spending on the presidential and congressional races combined – two University of Virginia law professors reflected on the relationship between money, free speech and campaign finance.

• Deborah Hellman
Professor of Law

While it’s nice to see the president congratulating the many volunteers who pounded the pavement over the last several months, as they did for him, for Gov. Romney and for the many other candidates, I still come away from this presidential election dismayed by the amount of money spent by individuals, corporations and other groups – a figure news sources estimate at about $2 billion.

So far, the Supreme Court has not allowed many restrictions on money in campaign financing. Such restrictions are allowed only if they prevent corruption or the appearance of corruption. At the same time, the court has insisted that it is responsible for defining corruption and has done so using a very narrow definition – as the quid pro quo exchange of money for votes.

Yet the public conversation in the media is rife with comments about how Candidate X receives a lot of money from Industry Y – suggesting that the candidate will now feel beholden to serve the interests of that industry. These comments suggest that most of us have a more generous understanding of what “corruption” might mean.

In order to define corruption, we must define good government, as the two are simply flip sides of the same coin. But it’s not the court’s role to decide what constitutes good government. The people, through their elected representatives, should define the terms of good government and so should be permitted to broaden their understanding of what corruption of government entails.  

• Michael Gilbert
Associate Professor of Law

The 2012 election was characterized by unprecedented spending – and unprecedented secrecy.

“Dark money” groups, by which I mean organizations that do not disclose their contributors, spent over $200 million on federal races. Many have called for disclosure of the sources of such money on the grounds that disclosure informs voters. It helps, they claim, to know whether a coal company or the Sierra Club paid for a particular ad. Others reject disclosure on the ground that it chills political speech. Some donors do not want to publicize their identities and, if forced to do so, will choose to remain silent.

Both of those claims – disclosure informs voters, disclosure chills speech – have become conventional wisdom. And both might be wrong. 

If disclosure chills speech, then it gives rise to an information tradeoff. Without disclosure, voters observe many speech acts, but they do not know the sources of the acts. With disclosure, voters observe fewer speech acts, but they do know sources. Sometimes voters will be better off in the first world and sometimes in the second. 

All of that assumes that disclosure chills speech. But it might not. Knowing the sources of speech not only helps voters evaluate it and decide which candidate to support, it helps them decide how strongly to support that candidate. The information gained from disclosure may cause some people to engage in more political speech than they otherwise would, and in the right circumstance that could increase speech overall. So disclosure does not necessarily chill speech; it might thaw it. 

If disclosure thaws speech, the information tradeoff disappears. Disclosure provides information by revealing sources and by producing more speech.

The 2012 election is behind us, but disclosure remains front and center in the debate over campaign finance. It turns out to be a complicated policy instrument, and we are just beginning to understand its effects.  

(Note: Gilbert's forthcoming Iowa Law Review article, “Campaign Finance Disclosure and the Information Tradeoff,” discusses these ideas in more detail.)