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

In this Heartland Institute Policy Study, author Nick Dranias explains that 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.” However, Dranias notes that this attack on “dark money” is really an effort to suppress opposing ideologies by exposing speakers and their associates to retaliation. Unfortunately, according to the author, current Supreme Court precedent is enabling and emboldening such suppression.

Fortunately, as the Policy Study argues, 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. To this end, a focused litigation strategy can help usher this recognition into wider acceptance by the judiciary.

Separate from that, states can assist in protecting private civic engagement by enacting two separate pieces of legislation proposed in this article. First, Dranias proposes the 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 also enact the Publius Confidentiality Act, which Dranias proposes as a measure that would guarantee citizens, who legitimately fear retaliation, the right to secure a confidential identity for use in their political activities. Dranias notes that these proposed tactics are fully constitutional under current precedent and will also help move the debate to once again recognizing the fundamental importance of private civic engagement in our Republic.

Read the full Policy Study here.