The Wall Street Journal has little use for campaign finance rules, and it cannot surprise anyone with its complaint about state laws compelling political disclosure. But its reflexive suspicion of motives behind these laws, and ready, scornful dismissal of any need for them, does not mean that it is always wrong. A recent editorial questioning a state disclosure law, and praising a court for overturning it, is a case in point. The WSJ has this one right. The problem it identifies has cropped up around the country, and it is not helpful to the cause of reform to have the objective of disclosure defined by enactments like this.

The Supreme Court will decide soon whether states can bar judicial candidates from directly and personally soliciting contributions to their campaigns. The stakes are high; the stakes are also low.

When skeptics of compelled disclosure warn about the dangers of reprisal and harassment, the answer most often is that the Supreme Court has already addressed this contingency. Groups that can make a showing that they are uniquely vulnerable to harassment can apply for an exception. In this way the conversation drifts quickly to NAACP v. Alabama.

The skeptics, however, remain unpersuaded, and in a recent blog posting, Lyle Denniston points out that changes in politics may account for their discomfort. He refers specifically to the “deep polarization of the parties and the effect that has on coarsening the content of political expression.” He suggests that in this climate, the concern with donor privacy has broadened sufficiently that “privacy in political expression” now figures prominently in disclosure debates and requires a balance that the Supreme Court will be eventually called on to strike.

As the Denniston posting was published, a federal district court in Colorado entered an order in the latest phase of litigation over a state disclosure requirement modeled on the federal “electioneering communication” provision. This case serves as a good example of contemporary disclosure controversies, bringing out key disagreements over how disclosure laws should apply to smaller-scale issues speech.

In a second round, at the second level of the Chevron test, a federal district court has struck down the FEC's attempt to read a "purpose" requirement into the “electioneering disclosure” rule. Van Hollen v. Federal Election Commission, No. 11-0766 (ABJ), 2014 WL 6657240 (D.D.C. November 25, 2014). The general view is that the Court probably got this right and that to the extent that the issue has remained unresolved for this long, the FEC (once again) should take the blame. Those adopting this position point to Judge Jackson's opinion, in which she lays out in some detail the obscure route by which the FEC arrived at its position.

But, as so often, the FEC is paying handsomely for the complexity of the issue and the sins of others. A fair share of the responsibility for this disclosure controversy lies with the Supreme Court's garbled jurisprudence, which has produced confusion about the constitutionality of campaign finance requirements applied to “issues speech”.

It may have been legal, or perhaps not, depending on the facts, which are so far not fully known.  But the use of  Twitter to feed polling information to outside groups lends itself to various conclusions about the state of campaign finance law.  The content of the FEC rule against coordination can be brought into question, or its enforcement criticized, or the problem can be passed off as another instance of shenanigans by a regulated community always exploring paths around the law.  Or the issue could be, more profoundly, the very conception behind the current anti-coordination rules.