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Geo. Mason L. Rev.


This article suggests that Citizens United provides an opportunity to reconsider the relationship between campaign finance disclosure and the First Amendment and that unless that relationship is strengthened at a constitutional level, this opportunity may be lost beneath an accretion of poorly developed doctrine. The article points out that new legislation and litigation is already testing the disclosure issue in the lower courts and will arrive at the Supreme Court in due course. The article questions whether the shallow roots of the information interest now underlying disclosure may fully support the kinds of rules necessary to make disclosure of sophisticated political actors effective. One way to deepen those roots, the article suggests, is to recover the republican principle that supports the First Amendment and recognize in that principle an antifactional purpose that supports disclosure as a key constitutional protection for our system of self-government.

The argument has three parts. Part I considers the existing constitutional foundations of the means and ends of campaign finance disclosure, identifying several doctrinal fissures that may undermine disclosure laws in the future yet have received little attention in the commentary on Citizens United. Part II proposes a revised conception of the underdeveloped informational interest as an antifactional interest. Rooted in Madisonian republicanism and translated to the modern practice of politics, it considers campaign finance disclosure as a crucial part of the Constitution's broader antifactional project. Part III applies the antifactional interest to begin to resolve several persistent controversies arising from campaign finance disclosure.