In a landmark 1993 case, the Supreme Court held in Daubert v. Merrell Dow that “expert testimony ” or scientific “evidence” was inadmissible at trial if it was based on “junk science.” That is, if the information or methods were not reliable, admitting it would not help the jury in its fact-finding role.
Why haven’t the courts applied this principle to political speech regulation cases? Disclosure of the identity of political spenders is upheld in cases because courts see these requirements as furthering an important purpose, by informing the public who supports or opposes the candidate or cause at issue. Just as expert testimony and scientific studies can give jurors useful information to arrive as a conclusion, one could think about reporting requirements, disclaimers, and all the rest as serving a similar purpose for voters.
Unfortunately, there is no Daubert decision for campaign disclosure. There should be, since if a disclosure provision does not provide useful information, there is no state interest that could justify the intrusion into privacy and association rights. Furthermore, it might generate inaccurate information—or at least obscure the interesting bits in a sea of minutia.
This is the first in a series of posts critiquing such state laws, picking out those that cannot pass a laugh test. They do not give the voter useful information. They are at best annoying and, at worst, designed to chill the political speech of disfavored speakers.
The disclaimer requirements of Alaskan law, as amended in 2010 provide a prime example. From watching that Sarah Palin show, one might get the sense that Alaska is filled with liberty-loving, adventure-seeking, good ol’ “Don’t Tread On Me” types. The state’s disclaimer laws leave a different impression. In fact, the requirement is so convoluted and lengthy the state has distributed a FAQ so speakers can understand what manner of disclaimer they need to use.
Suppose citizens form a group in Alaska—let’s call it Alaska Now!—and want to broadcast a radio spot criticizing an incumbent legislator that tells people something about his record and why they shouldn’t reelect the guy. In addition to that message, the group must include this scripted line: “This communication was paid for by Alaska Now. The top contributors of Alaska Now are [Bart Simpson], [Ford Prefect], and [Scooby Doo].” The narrator needs to be clear—no car sales auctioneer-type announcements allowed.
In tightly controlled experiments at CCP Headquarters, we found that this disclaimer takes about seven seconds to read. That’s half of a 15 second radio spot. And woe unto a group whose top donors are cursed with long names.
Now, if Bart, Ford and Scooby had chipped in thousands of dollars for this ad, one might argue that this information is not “junk disclosure.” But there isn’t any such qualification in Alaska’s law. Any group that takes any contributions (for this ad or otherwise) must name the top three donors. Even if, as might be the case in a grassroots local effort, the top donor gave a whopping $15. With no threshold, nor any requirement that the contribution be for the message (in fact the law requires that the group look back 12 months, and identify the donor who gave the most cumulatively in the year leading up to the broadcast), this disclaimer yields junk disclosure.
Suppose Alaska Now! produces a video. Alaska law requires that the same disclaimer as in the radio spot must be read during the video (not just printed on the screen). Moreover, the video must display the disclaimer “This communication was paid for by Alaska Now!” (and the city and state of its principal place of business), the name and title of Alaska Now!’s principal officer, and a statement from the principal officer approving the message. It must also include the names and city and state of residence or principal place of business of Alaska Now!’s three largest contributors.
More junk disclosure. How does the name of the “principal officer” of this group “inform” the voter? How does a statement that the officer “approves” the message serve any purpose? And the location information would seem to feed the parochial and provincial inclinations of listeners, and distract from whatever merits the information might have to them. That’s not a proper state purpose.
Legislators should not have a free hand to incorporate whatever lengthy, onerous, silly or stupid provisions they want into the state disclosure statutes. Courts should respect the public’s “informational interest” which, as in Daubert, necessarily requires sorting out the junk.
