By Zac MorganIn 1905, Theodore Roosevelt used the bully pulpit of his annual message to Congress on the State of the Union to advocate for “the full and verified publication in detail of all the sums contributed to and expended by the candidates or committees of any political parties.” The result, the President declared could not “but be wholesome” for the body politic.Nearly 110 years later, approximately 95 percent of campaign spending is fully and transparently accounted for—certainly the most publicity that donors have ever received in the history of the Republic. Organizations intimately involved in politics, such as national parties, PACs, and candidate committees are forced to meticulously track and disclose their contributors and spending habits. These disclosure arrangements have been repeatedly upheld by the Supreme Court in every major case since 1976.But it’s possible that the Court signaled a slight shift on the issue last Term. While reading the entrails of a Supreme Court opinion for guidance is always perilous—and intestines are almost always dicta—Chief Justice John Roberts’s controlling opinion suggests that the Court may be less sympathetic to the latest trend in political disclosure laws.In McCutcheon, while noting that disclosure can serve as a check against nefarious behavior by bad actors seeking to evade contribution limits, the Chief Justice pointedly mentioned that “[w]ith modern technology, disclosure now offers a particularly effective means of arming the voting public with information.” Unlike in the past, where “information about campaign contributions was filed at FEC offices and was therefore virtually inaccessible to the average member of the public,” today, “massive quantities of information can be accessed at the click of a mouse.”
