Despite the heated rhetoric surrounding today’s McCutcheon decision, it should be remembered that the aggregate contribution limits the Court struck down today have played only a minor role in recent controversies surrounding campaign finance regulation.  In recent years, debates surrounding the disclosure of political spending have instead taken center stage.  Groups like the Center for Political Accountability have pressed corporations to voluntarily disclose virtually all of their political spending on their websites.  Activist groups, via shareholder proposals and litigation, have further pressed corporations to reveal their political spending.  And, much of the controversy related to the IRS proposed rules regulating 501(c)(4) social welfare organizations involves whether those rules would force certain kinds of political spending into other groups that must disclose their donors.

Today’s McCutcheon decision steps a toe into these waters.  “[D]isclosure of contributions minimizes the potential for abuse of the campaign finance system,” wrote Chief Justice Roberts in his controlling decision.

The Chief continued:

With modern technology, disclosure now offers a particularly effective means of arming the voting public with information. …  Today, given the Internet, disclosure offers much more robust protections against corruption.  Reports and databases are available on the FEC’s Web site almost immediately after they are filed, supplemented by private entities such as OpenSecrets.org and FollowTheMoney.org.  Because massive quantities of information can be accessed at the click of a mouse, disclosure is effective to a degree not possible at the time Buckley, or even McConnell, was decided.

The existing aggregate limits may in fact encourage the movement of money away from entities subject to disclosure.  Because individuals’ direct contributions are limited, would-be donors may turn to other avenues for political speech.

We expect both sides of the political spending disclosure divide to seize onto this part of the Court’s decision.  As they did (incorrectly) with the Citizens United decision, those favoring increased disclosure will likely argue that McCutcheon was based on the assumption that political spending is publicly disclosed.  These advocates will also argue that the above language suggests that the Court sees disclosure as a good thing.

On the other side, opponents of increased disclosure will likely argue that the Court was referring to disclosure of direct “contributions” to candidates, political parties, and PACs, not contributions to tax-exempt groups that engage in political or issue advocacy–the holy grail for political disclosure advocates.  Moreover, opponents of campaign finance reform will likely argue that the Court’s reasoning here undermines not only the aggregate limits at issue in McCutcheon, but also the individual “base limits” on contributions to candidates and parties.  In other words, if the online disclosure advances of the last decade have helped provide “protections against corruption” that are “robust” enough to undermine the rationale for aggregate contribution limits, opponents of regulation will likely argue that they are also “robust” enough to undermine the rationale for limiting individual contributions in the first place.