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

31 Pages Posted: 28 Sep 2014 Last revised: 1 Feb 2015

See all articles by Nick Dranias

Nick Dranias

Compact for America Educational Foundation; Compact for America, Inc.; Nick Dranias Law & Policy Analysis LLC

Date Written: September 15, 2014

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

Suggested Citation

Dranias, Nick, In Defense of Private Civic Engagement: Why the Assault on 'Dark Money' Threatens Free Speech and How to Stop the Assault (September 15, 2014). Available at SSRN: https://ssrn.com/abstract=2501105 or http://dx.doi.org/10.2139/ssrn.2501105

Nick Dranias (Contact Author)

Compact for America Educational Foundation ( email )

2323 Clear Lake City Blvd.
Suite 180
Houston, TX 77062-000
United States
6022282582 (Phone)

HOME PAGE: http://www.compactforamerica.org

Compact for America, Inc. ( email )

2323 Clear Lake City Blvd, Suite 180-190
Houston, TX 77062
United States
2812358311 (Phone)
2812358311 (Fax)

HOME PAGE: http://www.compactforamerica.org

Nick Dranias Law & Policy Analysis LLC ( email )

15025 S. 8th Street
Phoenix, AZ 85048
United States
6022282582 (Phone)

HOME PAGE: http://sites.google.com/site/nickdraniaslaw/

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