How One Footnote in This Week's Campaign Finance Ruling Rewrites the Field

A campaign finance ruling handed down earlier this week reads, on its face, as a narrow procedural decision on the kind of disclosure question that practitioners have litigated several times in recent years. A footnote in the majority opinion, however, has been circulating quietly among practitioners as the more significant part of the decision. The footnote restates the test for when a disclosure regime crosses into the territory the court has previously found problematic, and the restatement is meaningfully different from the version the lower courts have been applying.

What the footnote actually says

The footnote does not announce a new doctrine. It pulls together threads from several previous decisions and articulates a version of the test that, in the reading of practitioners who specialize in this area, has the practical effect of narrowing the room states have to design their disclosure rules. The narrowing is incremental but the cumulative effect across the regimes states are currently operating under is non-trivial.

Several state-level officials briefed on the footnote said they were already commissioning analyses of which of their current rules would need to be revisited under the restated test. The analyses will take weeks to complete and the rule revisions, if they prove necessary, will take longer.

Why the field will reorganize around this

The footnote arrives at a moment when several states had been moving toward more aggressive disclosure regimes in response to the previous cycle of campaign finance debates. The restated test does not foreclose those efforts but it does change the design constraints under which the efforts have to operate. Practitioners said the next year of disclosure design will be visibly shaped by the footnote, even though the ruling itself will likely be remembered as narrow.

Footnotes that do this kind of work have a long history in the campaign finance area. The cycle of restate, litigate, and refine is part of how the doctrine in this field actually moves.

Related reading: The Ethics Commission Overhaul No One Bothered to Publicize and The Small-Dollar Donor Is Quietly Killing the Bundler in Competitive Races.