Discouraging Speech through Disclosure

David Price, a Democratic member of the House of Representatives from North Carolina, has introduced a bill, the Stand by Every Ad Act, to mandate disclosure of support for political speech by business and union officials.


Rep. Price cites three harms from such speech: “the opportunity for corporations, unions and associations to dominate the playing field, intimidating public officials and drowning out the candidates’ own messages.”


Notice that these alleged harms are caused by the speech itself and not by the fact that the speech might be anonymous. Notice also that Rep. Price provides no evidence at all that such harms will take place. Where would such evidence be found? Prior to McCain‐​Feingold, corporations and unions could fund speech. Several states also have permitted independent corporate expenditures. What happened in those years or those states to support Rep. Price’s extreme claims?


It is striking that two of the three harms cited by Rep. Price concern only members of Congress. He claims members will be intimidated or have their “own messages” drowned out. What Rep. Price does not say is how these problems for members of Congress would translate into problems for voters. Of course, such arguments about the welfare of voters exist, but they are not obvious to most people. Rep. Price, however, saw no need to make the connection between an alleged harm done to a member and the interests of voters. His argument is centered on the interests and concerns of incumbent members of Congress. Apparently members consider first their own interests in thinking about campaign finance regulations.


Rep. Price also ignores the fact that voters are likely to receive more information about candidates for office after Citizens United since the hand of the censor has been lifted.


Rep. Price clearly believes mandated disclosure by business and union leaders will effectively discourage them from speaking out during elections. Given that motivation behind the new disclosures laws, at what point does mandated disclosure translate into chilled speech?


One other disturbing part of Rep. Price’s case for his bill: he hopes to extend disclosure to the Internet. Of course, disclosure of Internet speech may well lead to other restrictions on speech online.