Congress is considering a novel way to regulate campaigns.  The bill at issue, the Fair Elections Now Act¹ (FENA), combines federal campaign funds with subsidized advertising for candidates who participate in the program.  Modeled, to some extent, on existing programs at the state and local level, FENA presents interesting constitutional and policy questions.

On November 4, 2008, the election of President Obama coincided with the passage of Proposition 8, a ballot measure which banned gay marriage in California through amendment of the state’s constitution. In the days leading up to and following the passage of the proposition, public access to the names and pertinent information of individual donors supporting the bill led to some interesting results...

I have had the opportunity to consider First Amendment associational privacy and anonymity in greater detail since writing the article appearing above in this edition of Engage. Steve Simpson’s observation that my argument takes for granted a governmental interest in ballot measure disclosure where there is plainly none is aptly put. Despite my best intentions, I treated the First Amendment in light of judicial precedent, and, using such a backwards paradigm, called for a visit to the proverbial free speech woodshed...

For years, the lower federal and many state courts have given short shrift to the First Amendment rights of those who wish to contribute money to groups that advocate the passage or defeat of ballot measures. Twenty-four states allow legislation to be passed in this manner, and in every one, the law requires groups advocating the passage or defeat of ballot measures to disclose the names, addresses, and often employers of their contributors. This not only chills the participation of potential contributors, as Stephen Klein ably demonstrates; it can be an enormous burden on ballot issue groups as well. Many states treat them like political committees, requiring them to file registration statements, appoint treasurers, and track and report not only contributions but also all expenditures...