Sarah Harding


The law of campaign finance pits two important First Amendment interests against each other: disclosure and privacy. The Supreme Court has recognized the need to balance these two interests to allow for effective elections and to safeguard individual rights. However, through the years the Court has failed to balance these interests equally, resulting in vacillating decisions that unfairly sacrifice one for the other. From Burroughs v. United States in 1934 to Citizens United v. FEC in 2010, the Court has failed to provide a workable roadmap for legislatures in the creation of campaign finance disclosure laws and for lower courts in determining their constitutionality. This Article argues that a balance between privacy and disclosure can be struck by employing a “zone of constitutionality” test. The Article proposes factors the Court could weigh in determining whether a disclosure law falls within the zone of constitutionality. Finally, the Article argues that clear guidelines are essential to balance both interests; protect citizens and corporations’ First Amendment rights; and avoid unnecessary litigation to the lower courts.