Douglas M. Spencer

In the Shadows of Sunlight: The Effects of Transparency on State Political Campaigns

In recent years, the courts have invalidated a variety of campaign finance laws while simultaneously upholding disclosure requirements. Courts view disclosure as a less-restrictive means to root out corruption while critics claim that disclosure chills speech and deters political participation. Using individual-level contribution data from state elections between 2000 and 2008, we find that the speech-chilling effects of disclosure are negligible. On average, donors to state-level campaigns are equally likely to contribute in subsequent elections in states that increase the public visibility of campaign contributions, relative to donors in states that do not change their disclosure laws or practices over the same time period -- estimates are indistinguishable from zero and confidence intervals are narrow around zero. Moreover, we do not observe heterogeneous effects for small donors or ideological outliers despite an assumption in First Amendment jurisprudence that these donors are disproportionately affected by campaign finance regulations. In short, the argument that disclosure chills speech is not supported by the data.

Administering Section 2 of the VRA After Shelby County

Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, lowcost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking changes before they take effect. This paper argues that the courts, in partnership with the Department of Justice, could reform Section 2 so that it fills much of the gap left by the Supreme Court’s evisceration of Section 5. The proposed reformation of Section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in Section 2 cases; second, that the courts have authority to create rebuttable presumptions to regularize Section 2 adjudication. Section 2 cases currently turn on costly, case-specific estimates of voter preferences generated from precinct-level vote totals and demographic information. Judicial decisions provide little guidance about how future cases—each relying on data from a different set of elections—are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and a common statistical model, the courts could greatly reduce the cost and uncertainty of Section 2 litigation. This approach would also end the dependence of vote-dilution claims on often-unreliable techniques of ecological inference, and would make coalitional claims brought jointly by two or more minority groups much easier to litigate. * Professor of Law, University of California, Davis. Faculty affiliate, Institute for Governmental Studies and Center for the Study of Law and Society, UC Berkeley (2013-14). † Associate Professor of Law and Public Policy, University of Connecticut. For helpful discussions and feedback the authors thank Eric Biber, Guy Charles, Jack Chin, Mike Gilbert, Perry Grossman, Rick Hasen, Ellen Katz, Michael McDonald, Jennifer Nou, Mike Pitts, Kevin Quinn, David Schleicher, Nick Stephanopoulos, Franita Tolson, and discussants and participants at the 2014 Conference of the Midwest Political Science Association, and the Political Economy and Public Law Conference at the University of Rochester. We are also indebted to Lynn Vavreck and Simon Jackman for sharing the 2008 Cooperative Campaign Analysis Project dataset; to Heather O’Connell for sharing her data on county slave populations in 1860. Replication code and data appendix available at: http://www.dougspencer.org/research.html. 2 Administering Section 2 After Shelby County