In Defense of Private Civic Engagement: Why the Assault on 'Dark Money' Threatens Free Speech and How to Stop the Assault

Abstract

The right to private civic engagement — the right to participate in politics confidentially as an individual or in association with others — is under assault as the product of “dark money.” But the attack on “dark money” is really an effort to suppress opposing ideologies by exposing speakers and their associates to retaliation. Unfortunately, current Supreme Court precedent is enabling and emboldening such suppression. But there is hope for a return to our Nation’s tradition of respect for private speech and association. Mandatory disclosure and disclaimer requirements are still subject to an exception for those who can claim a reasonable probability of retaliation. Sadly, in today’s polarized political environment, it is increasingly apparent that this exception should be the rule. A focused litigation strategy can help usher this recognition into wider acceptance by the judiciary. Moreover, states can assist in protecting private civic engagement by enacting the proposed Free Speech Privacy Act, which would codify the right to be free from disclosure and disclaimer mandates that impose a reasonable probability of retaliation. Furthermore, states can enact the proposed Publius Confidentiality Act, which would guarantee citizens, who legitimately fear retaliation, the right to secure a confidential identity for use in their political activities. These proposed tactics are fully constitutional under current precedent and will also help move the debate towards once again recognizing the fundamental importance of private civic engagement in our Republic.

Keywords: First Amendment, disclosure, disclaimer, Citizens United, retaliation, public trust, freedom of the press, campaign, lobbying, free speech, confidentiality, anonymity, pseudonyms

JEL Classification: K19, K29, K39